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PC-07-20-10 CITY OF SHOREWOOD COUNCIL CHAMBERS PLANNING COMMISSION MEETING 5755 COUNTRY CLUB ROAD TUESDAY, 20 JULY 2010 7:00 P.M. MINUTES CALL TO ORDER Chair Geng called the meeting to order at 7:00 P.M. ROLL CALL Present: Chair Geng; Commissioners Arnst, Hasek, Hutchins, Ruoff, and Davis; Planning Director Nielsen; Council Liaison Woodruff Absent: Commissioner Vilett APPROVAL OF AGENDA Arnst moved, Hasek seconded, approving the Planning Commission Meeting Agenda of July 20, 2010 as presented. Motion passed 6/0. APPROVAL OF MINUTES  June 29, 2010 Arnst moved, Davis seconded, deferring approval of the Planning Commission Meeting Minutes of June 29, 2010 pending additional commentary on page 4, paragraph 14. Motion passed 6/0. 1. RECONSIDERATION OF A C.U.P. TO BUILD ON A SUBSTANDARD LOT Applicant: Mary Edwards Location: 6170 Ridge Road Director Nielsen reviewed his staff report, which states in May of this year Mary Edwards was granted a conditional use permit (C.U.P.) to construct a new home on her property at 6170 Ridge Road. The lot is substandard in area and requires a C.U.P to build on due to the Shoreland District regulations. The C.U.P. was granted subject to several conditions, among which included a requirement to bring two nonconforming accessory structures – a garage near the road and a shed/deck near the lake – into conformity with current zoning requirements. The applicant and her builder had previously determined that there was no feasible way to achieve conformity without removing the structures in question. Since then the applicant’s attorney has challenged the City’s authority to require the removal of the buildings, citing eminent domain statute 117.184 adopted in 2006. The original approval in May was based on a site plan that assumed the nonconforming accessory structures, including the garage, would be removed. The side yard setbacks for the R-1A/S zoning district are 30 feet total with no side being less than 10 feet. The garage is 2.5 feet from the south side lot line and therefore requires a 27.5 foot setback from the north side to achieve the total 30 feet. The applicant has submitted a revised site plan showing the proposed new house repositioned southward on the lot in order to satisfy the 30-foot setback requirement, thereby avoiding the need for a setback variance. The staff report further states that the statute specifically protects legal nonconforming uses. The existing garage appears to be of similar vintage as the existing house which was built in the 1920’s and shows up on the City’s aerial survey maps that were photographed in May of 1966. The shed and deck, however, do not show up on the aerial survey and there is no record of a building permit having been issued for the structure. The City Assessor and Building Official estimate that the structure is less than 30 years old. These factors led PLANNING COMMISSION MINUTES 20 July 2010 Page 2 of 4 staff to conclude that the shed/deck structure does not qualify as legal nonconforming and therefore is not protected under the statute. Commissioner Hasek asked if the driveway leading to the garage is also legal nonconforming, and if the stairway leading to the shed/deck needs to be removed. Nielsen responded that the code allows only one driveway access per every 120 feet of lot frontage so the old driveway needs to be removed. The stairway is okay since lots may have a stairway per City Code, no wider than 4 feet, for lake access. Hasek asked if the City has any other aerial photographs of the area. Nielsen said there are other, more recent sets he looked at but none provided anything conclusive due to their quality, plus the tree cover. Dan Meuisi, the applicant’s builder, then presented an aerial photo from 1969 that showed something within the vicinity of where the shed/deck is situated today. Commissioner Ruoff asked Mr. Meuisi if the shed/deck is in good condition. Mr. Meuisi said it is structurally sound and in good shape. Mary Edwards said she actually talked with the former owners, the Kramer family, who told her they built the shed/deck in the late 1950s. She also said a neighbor told her she recalls the structure being there since the house was built. She stated she really wants to keep the structure for the sake of her mother. Dan Meuisi provided several letters from neighbors who wrote in support of allowing the applicant to keep the structures. After viewing the 1969 aerial photograph provided by Mr. Meuisi, Commissioner Hasek indicated that a good share of his career was spent studying aerial photographs. He said it appears to him that the structure in the photo was much nearer to the edge of the water than the one that is there today. He suggested obtaining more aerial photos – better evidence of some kind. Commissioner Ruoff asked what the timeline is that establishes legal versus illegal nonconformity. Director Nielsen said something that existed prior to the ordinances when the City was incorporated, which was about 1956, or something that was issued a permit to be built, would be legal. Ruoff said he would be interested in looking at the issue from a historical preservation perspective. He said boathouses are somewhat unique in nature and are part of the culture and character around Christmas Lake. Nielsen said that would be a whole separate (C.U.P.) application in itself with its own set of rules. Council Liaison Woodruff said he saw a similar situation before the LMCD where the applicant was able to demonstrate legal status by providing photographs that clearly showed a structure existing prior to regulation that would otherwise preclude it, and also had affidavits from neighbors or witnesses. He questioned whether the City has the latitude to authorize additional time for the applicant to investigate if there is evidence to substantiate the age of the shed/deck. Nielsen said the City could allow that. Ruoff asked if the applicant has the option of applying for a historical preservation C.U.P. while still being able to get the house under construction. Nielsen said it would be a tight schedule and would have to be concluded prior to occupancy of the house. He cautioned that whatever means of proof, such as affidavits, etc. the City chooses to accept would become the standard for future applications. Chair Geng said he didn’t think the form of proof needed to be predetermined, but he is concerned about precedent too. He said if hearsay letters of testimony are accepted then a pretty low threshold is being established. The burden of proof is on the applicant to show that the structure pre-existed with the City’s incorporation. He stated he doesn’t question the honesty of the applicant, but rather what is being told to the applicant by others, and he is not satisfied with hearsay. PLANNING COMMISSION MINUTES 20 July 2010 Page 3 of 4 Ruoff noted that the aerials are inconclusive one way or the other; it could be looked at from both perspectives. Arnst moved, Ruoff seconded, to recommend that the existing legal nonconforming garage be allowed to remain on the site, except that the driveway leading to it must be removed. Motion passed 6/0. Mr. Meuisi questioned why the driveway must be removed. Director Nielsen said it was his and the City Attorney’s opinion that it is not subject to the statute nor does the City’s Code allow it. Hasek moved, Arnst seconded, to recommend that the existing nonconforming shed and deck be allowed to remain for up to 6 months or upon issuance of the Certificate of Occupancy, whichever occurs first, for the purpose of allowing time for the applicant to prove its legal status. Motion passed 6/0. There was discussion and deliberation about the procedure going forward. The consensus was that the applicant should return to the Planning Commission with her findings regarding the status of the shed/deck. Commissioner Hutchins pointed out that the actual Conditional Use Permit, as revised, had not yet been acted on. Arnst moved, Hasek seconded to recommend approval of the revised Conditional Use Permit… Dan Meuisi stated he wants to appeal the requirement of moving the house position to the south side of the lot. Arnst withdrew the motion recommending approval of the revised Conditional Use Permit for purpose of discussion. Hasek agreed to the withdrawal. Director Nielsen reiterated that creating anything less than a 30-foot total side yard setback, including the existing nonconforming garage, would require a setback variance application, or application for an ordinance amendment to change the setback requirements for the Shoreland District. Arnst moved, Hasek seconded to recommend approval of a revised Conditional Use Permit based on the revised site plan that positions the proposed house to the south side of the lot, and subject to the motions previously made in regard to allowing the existing garage to remain on the property and allowing the shed/deck to remain for a period up to 6 months pending proof of its legal status. Motion passed 6/0. 2. DISCUSS CAPITAL IMPROVEMENTS PROGRAM (C.I.P.) Director Nielsen explained that State law requires that the Capital Improvements Program be reviewed by the Planning Commission for consistency with the Comprehensive Plan. Nielsen highlighted the areas of the program that are related to planning or the Comprehensive Plan as follows:  Establish a program for diseased trees, especially in regard to the Emerald Ash Borer.  Establish the City’s identity within the community. New signage for parks and city limits, etc. that is uniform throughout the City.  Street Issues. Two areas of study include consideration of connecting Eureka Road and Seamans Drive via a service frontage road; and upgrade to the Galpin Lake Road/Highway 7 intersection alignment.  County Road 19 Trail. Connecting the existing sidewalk on Co. Rd. 19 to the LRT trail, and creating a crossing between Badger Park and the Public Safety site to the LRT trail, are two items being considered. Nielsen said there are no changes proposed to this year’s C.I.P. PLANNING COMMISSION MINUTES 20 July 2010 Page 4 of 4 3. SMITHTOWN CROSSING – DISCUSS UPCOMING AUGUST FIELD TRIP Director Nielsen said that after the meeting with the developer panel, there was consensus that a tour of housing developments would be of value. He said he is in the process of creating a list of sites to visit and is open to suggestions. He stated that a date for the tour needs to be determined as well. Commissioner Arnst said the purpose of the tour includes looking at certain features that would relate to the Smithtown Crossing area such height limitations; unique topography – especially as it relates to the number of stories in the building; and features that create an inviting atmosphere. Commissioner Ruoff referred to a couple of residential complexes in Victoria and Chanhassen that demonstrate the impact of height. He said one of them contains mixed use. Arnst suggested that the sites not be restricted to senior housing only. rd After further discussion, the date of August 3 was determined to be best for the tour. 4. MATTERS FROM THE FLOOR None. 5. NEW BUSINESS None. 6. DRAFT NEXT MEETING AGENDA rd The meeting of August 3 will be a mobile tour of redevelopment projects. 7. REPORTS • Liaison to Council None. • SLUC None. • Other None. 8. ADJOURNMENT Arnst moved, Ruoff seconded, Adjourning the Planning Commission Meeting of July 20, 2010 at 9:00 P.M. Motion passed 6/0. RESPECTFULLY SUBMITTED, Patti Helgesen, Recorder