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05-03-16 Planning Comm Agenda CITY OF SHOREWOOD COUNCIL CHAMBERS PLANNING COMMISSION MEETING 5755 COUNTRY CLUB ROAD TUESDAY, 3 MAY 2016 7:00 P.M. A G E N D A CALL TO ORDER ROLL CALL / (LIAISON) SCHEDULE BEAN (Jun) ______ JOHNSON (Apr) ______ DAVIS (Mar) ______ RIEDEL (tbd) ______ MADDY (May) ______ APPROVAL OF AGENDA APPROVAL OF MINUTES 19 April 2016  1. 7:00 P.M. PUBLIC HEARING – C.U.P. FOR ACCESSORY SPACE OVER 1200 SQ. FT. Applicant: Dawn and Mike Ziegler Location: 25040 Yellowstone Trail 2. 7:10 P.M. PUBLIC HEARING – APPEAL OF ADMINISTRATIVE DETERMINATION OF NUMBER OF BOATS ALLOWED AT NONCONFORMING DOCK Appellant: Radisson Road Easement Holders Location: 5540 Shore Road (Lot 11) 3. 7:20 P.M. PUBLIC HEARING – REZONE PROPERTY FROM R-2A, SINGLE & TWO- FAMILY RESIDENTIAL TO C-1, GENERAL COMMERCIAL Applicant: John Benjamin Location: 24250 Smithtown Road 4. PUBLIC HEARING – ZONING CODE TEXT AMENDMENT REGARDING ALTERNATIVE ENERGY REGULATION (continued from 19 April 2016) 5. CONSENT AGENDA A. PETITION FOR EXTENSION OF VARIANCE APPROVAL Petitioner: David Moe Location: 20920 Forest Drive B. REVIEW AND COMMENT ON THE SALE OF A HOWARDS POINT ROAD TAX FORFEIT PARCEL Planning Commission Meeting Agenda 3 May 2016 Page 2 6. MATTERS FROM THE FLOOR 7. OLD BUSINESS / NEW BUSINESS 8. DRAFT NEXT MEETING AGENDA 9. REPORTS Liaison to Council  SLUC  Other  10. ADJOURNMENT CITY OF SHOREWOOD COUNCIL CHAMBERS PLANNING COMMISSION MEETING 5755 COUNTRY CLUB ROAD TUESDAY, APRIL 19, 2016 7:00 P.M. MINUTES CALL TO ORDER Chair Davis called the meeting to order at 7:00 P.M. ROLL CALL Present: Chair Davis; Commissioners Bean, Johnson, Maddy and Riedel; Planning Director Nielsen; and, Council Liaison Sundberg Absent: None APPROVAL OF AGENDA Maddy moved, Bean seconded, approving the agenda for April 19, 2016, as presented. Motion passed 5/0. APPROVAL OF MINUTES  March 15, 2016 Johnson moved, Maddy seconded, approving the Planning Commission Meeting Minutes of March 15, 2016, as presented. Motion passed 5/0. 1. PUBLIC HEARING – REZONING PRELIMINARY PLAT, AND VARIANCES FOR LOT AREA, LOT WIDTH AND SETBACKS (continued from March 15, 2016) Applicant: Peter Lehman Location: 21265 and 21285 Radisson Road Chair Davis opened the Public Hearing at 7:25 P.M. noting the procedures used in a Public Hearing. She also noted the hearing was continued from March 15, 2016. She explained the Planning Commission is comprised of residents of the City of Shorewood who are serving as volunteers on the Commission. The Commissioners are appointed by the City Council. The Commission’s role is to help the City Council in determining zoning and planning issues. One of the Commission’s responsibilities is to hold public hearings and to help develop the factual record for an application and to make a non-binding recommendation to the City Council. The recommendation is advisory only. She stated this evening the Planning Commission is going to consider rezoning, a preliminary plat, and variances for lot area, lot width and setbacks. Director Nielsen explained Peter and Marie Lehman own the properties located at 21265 and 21285 Radisson Road. The Lehmans’ current request is similar to one they made in 2014. The 21285 property contains 7500 square feet of area and the 21265 property contains 38,758 feet of area. The 21285 property has a small old cottage on it near the intersection of Merry Lane and Radisson Road. The properties are zoned R-1A/S, Single-Family Residential and are subject to shoreland management regulations. That zoning district requires a minimum lot size of 40,000 square feet of area. The applicants’ home is located CITY OF SHOREWOOD PLANNING COMMISSION MEETING April 19, 2016 Page 2 of 14 on the larger parcel; there are two cottages on it as well. The applicants have proposed rearranging the lot line between the two lots to make them both more buildable noting they would not meet the R-1A lot area requirement. He displayed graphics showing what the proposed lots (Track A and Track B) would look like. For their 2014 application they needed lot area variances for both lots, width variances for both lots, and a setback variance for the proposed new home. In exchange for those variances the three nonconforming cottages would be removed. Those structures are nonconforming with regard to location. Two are also a nonconforming use because only one house is allowed on a single-family residential lot under the Zoning Code. When it got toward the end of considering that application the applicants were reluctant to remove the cottages within the timeframe the City wanted that done. The City wanted two of the cottages to be removed within 60 days and the third within one year. The applicants chose not to pursue that application. The Lehmans again propose to rearrange the lot line between the two lots and leave their home as it is. It also includes keeping the cottage closest to the intersection of Marry Lane and Radisson Road. They basically would like a guarantee of what the setbacks would be on the new lot. The current proposal still requires variances for lot area, lot width and setbacks. It also requires a setback variance on the existing home. In order to get the guarantee they want they have proposed rezoning both properties to R-1C which allows 20,000 square foot lots and lesser setbacks. Staff views the proposed rezoning of those two properties as spot zoning. Staff does not advise doing that. The city attorney questions if that would even be legal. Nielsen reported that before the March 15, 2016, public hearing the applicants asked if there was a way to get the subdivision/combination approved without rezoning the properties and be guaranteed setback variances for Track B. The Zoning Code only allows variances for a period of one year. There is a provision that allows an applicant to request an extension. The city attorney advised him that he probably suggested a little more than he should have in his follow-up report dated April 17, 2016. In that report he indicated that councils have in the past granted a six month extension; the city attorney did not think he should have said that. For its 2014 application the applicants included building a new house on the 21825 property and the applicant had plans for the new house. In 2014 essentially R-1C standards were to be applied; a 35-foot setback along the street and the side yard abutting the street; a 50-foot setback along the Trunk Highway 7 service road consistent with the R-1A district. There would have been one variance involved for the side yard abutting the street; 36 feet instead of 50 feet. The current application does not include building a house. In order for the applicant to have a variance approved they must submit a specific plan on which the variance would be based. The applicant would have one year to use it. The applicants could use their 2014 plan to pseudo guarantee the variances. Per the city attorney, approving variances for which there is no plan would be similar to spot zoning. If there is some concern about the Lehmans’ ability to build a new home within one year they could eventually build a home that would be similar in size to the existing home. There had been discussion about the applicant wanting to live in one of the existing cottages while a new home was constructed. The City Ordinance has a provision in it that by conditional use permit (C.U.P.) it allows two dwellings on a property so a person can live in one while a new house is being constructed as long as the one that is being lived in does not adversely impact the location of the new house. CITY OF SHOREWOOD PLANNING COMMISSION MEETING April 19, 2016 Page 3 of 14 Nielsen noted the lot line between the two properties could be realigned making the 21285 property larger. They could get variances for lot area, width and setbacks subject to the three nonconforming cottages being removed. The guarantee they would have would be R-1A setbacks. He stated if, for example, the applicants obtained variances using the 2014 house plan they would have one year to use them. Prior to the end of the year they could apply for a C.U.P. allowing them to temporarily have two dwellings on one lot and that would be good for one year. That would give the applicants time to speak with a real estate professional to talk about what, if any, benefits they would get out of doing what they are considering. Nielsen reiterated staff does not recommend the spot zoning. He explained if the Planning Commission and ultimately the City Council were agreeable to creating the new lot line staff recommends it be subject to the removal of the cottages. An option to that would be to move the one on the smaller lot into compliance with the R-1A setbacks. Peter Lehman, 21265 Radisson Road, stated their 2014 application included two requests. One was for a lot line revision between the two lots they own outside of the context of building a new home. As part of that they proposed removing two of the three cottages. The second request was for a zoning change. They thought it was the appropriate time to ask for that. Mr. Lehman explained their most important goal is to reduce the nonconformity of their properties especially in the case of the nonconforming use. The proposed lot line revision would make their properties more consistent with neighboring properties. They would remove a driveway as a matter of course to help facilitate the process. They have a driveway very near to the corner; less than the 50 feet the Code requires. They also want to guarantee clearly defined and legal buildable areas for current and future owners of the two parcels. They want to eliminate uncertainty. He clarified that is not a hard and fast goal but it is their preference. He noted the official amendment to their request is they would remove both cottages on 5625 and 5635 Merry Lane. The three cottages located closest to the public access are theirs. They would keep what they refer to as “the log cabin” on 21285 Radisson Road. He explained they have been “chipping” away at some of the recommendations Director Nielsen made in response to their 2014 request on their own initiative. After they came back from vacation in August 2014 the zebra mussel crisis hit. In response to the discovery of zebra mussels the public access to Christmas Lake was closed. Property owners had to take their boats out of the water. A turbidity barrier was placed around their and two of their neighbors lakeshore and was left there over the winter. That made it difficult for them to consider selling their property. He then explained the lights from vehicles traveling on Highway 7 shine over the concrete barrier. The log cabin blocks that light from shining onto his 21265 yard and beach. The cabin significantly blocks the light pollution. The trees on his property do not block all of the light pollution. Traffic on Highway 7 also generates a tremendous amount of noise. He noted there is a 10-foot concrete wall adjacent to Highway 7 and his property. It would be impossible to live there without the wall. He reiterated their zoning change request is a low priority for them. He stated from his perspective he thought it would be appropriate to apply the R-1C standards to his proposed 20,000 square foot plus lots. He thought it would be better to have the lots be conforming to R-1C zoning than nonconforming to R-1A CITY OF SHOREWOOD PLANNING COMMISSION MEETING April 19, 2016 Page 4 of 14 zoning. He also thought making the zoning change in conjunction with the lot line rearrangement made sense. He reiterated their request is for a lot line revision. They want to keep the two homes; one on 21265 Radisson Road and one on 21285 Radisson Road. The other two structures would be demolished. They would also remove a driveway. They would deed as requested drainage and utility easements for the new lots. He asked the Planning Commission to consider their request for rezoning the two properties to R-1C. He noted his neighbor who lives at 21235 Radisson Road, Scott Olson, supports reducing the nonconformities of the Lehmans’ properties and removing a couple of dwellings. He clarified they would not be removing any trees as part of what they have proposed. He stated they have already done quite a bit of landscaping to their property. They spent $15,000 on landscaping and putting in 15 evergreen trees 6 – 8 feet tall along Merry Lane last fall. They have already obtained a tree preservation plan for the area where one of the two structures to be removed is located. They still need to do one for the site of the other that would be removed. He displayed a graphic from the Comprehensive (Comp) Plan which shows the proposed land use for his property is 1 – 2 units per acre. Their proposal would be consistent with the Comp Plan. He stated their neighbors are Deephaven and Highway 7 to the north, to the west there is an outlot for the Christmas Shores development, to the east is Scott Olson’s property as well as some residential homes where the old Christmas Lake hotel used to be and at the end of that development it is zoned R-1C. Mr. Olson’s property is approximately 17,000 square feet in area; it is smaller than the size of his proposed lots. Mr. Olson had been granted variances and permits to build a relatively large house a number of years ago. He displayed a photograph of the view if standing on the east side of the 21285 Radisson Road structure on Merry Lane looking down Highway 7. A person can see about one mile of Highway 7 from there. The headlights from vehicles are constantly arcing across his property. He then displayed a photo of the canopy lights at the gas station along Highway 7. He also displayed various views of where shadows fall and how the log cabin blocks some light pollution. It blocks light from hitting two bedroom windows on the first level his home. He displayed copies of landscape plans and highlighted what has been done to date. Lastly he displayed a copy of Mr. Olson’s letter in support of what the Lehmans are proposing. Mr. Lehman clarified that at this time they are just requesting a lot line revision. Mr. Lehman stated he and his wife are risk adverse and noted that next year they will have three children in college. One of his children is finishing their last year of high school now. They can start thinking about downsizing their living space. They have no firm plans about what they intend to do in the future. They don’t know how long the sale process would take if they decide to sell. They thought the simple thing to do at this time was the simple lot line revision; they are done frequently. He then stated if they wanted to build a new house the benefits that the 21285 property would provide would be significant. He went on to state there is a provision in the Code that allows for certain nonconforming structures to remain if, for example, they are historical in nature. They are not ready to consider that at this time. Commissioner Bean stated the lot line rearrangement would give the Lehmans two buildable lots. Mr. Lehman stated Director Nielsen has termed the smaller of the existing lots to be grossly substandard. Bean then stated combining the two lots would eliminate the need for variances. It is his understanding CITY OF SHOREWOOD PLANNING COMMISSION MEETING April 19, 2016 Page 5 of 14 that is not acceptable because the Lehmans’ want two buildable lots. Mr. Lehman stated that would not make sense for them to do that. It may for someone else. At this time they believe their best option is to reconfigure the two lots; they would be big flat lots. They are valuable to him and he would like to stay on one of them if possible. Mr. Lehman stated he had worked with surveyors to legally define the buildable areas of the proposed two lots as an alternative. In response to a question from Commissioner Riedel, Director Nielsen stated lot area and lot width variances would be required. The existing home currently complies with the side yard setback but would require a variance if the lot line was rearranged. Mr. Lehman stated shoreland district regulations require a total of 30 feet in side yard setbacks. Chair Davis stated this would not set a precedent for a small lot because Mr. Olson’s lot is very small. Commissioner Bean asked how many other residential lots along Radisson Road are substandard. Director Nielsen stated just the one on the east side [Mr. Olson’s property]. The others are basically R-1A lots and that is why the zoning district boundary was drawn the way it was. Director Nielsen stated that if the two existing were combined that lot would be about 10 percent greater than the 40,000 square feet of area required in the R-1A zoning district. He stated to put two houses on that size area is a stretch. He noted that he thought the Planning Commission’s recommendation in 2014 was quite generous in terms of allowing the lot line to be rearranged. Director Nielsen reiterated that in order for the Lehman’s to get variances they have to submit some type of plan. If they are not ready to do that the attorney suggested that maybe the lot line rearrangement is a little premature. Commissioner Bean stated that what is being asked for is essentially an economic objective. That is not grounds for a variance. Director Nielsen explained that for the Planning Commission’s 2014 recommendation the Commission weighed how the City would gain against what the applicant would gain. The City would gain the elimination of nonconforming uses and the elimination of nonconforming structures. The two lots would have complied with the hardcover restrictions. He stated if two of the dwellings were removed and the third moved into compliance with R-1A setbacks then maybe the lot division would make sense. He noted the City’s goal is to bring nonconformities into conformity. Commissioner Bean asked if allowing the variances would be a reasonable compromise in exchange for doing that. Nielsen confirmed that. Nielsen stated the very hardline approach would be to not allow that. He noted he thought the Planning Commission’s recommendation in 2014 was reasonable. Commissioner Riedel asked how defining buildable areas is different from variances. Would that be a binding commitment? Director Nielsen stated that is what is being asked for and noted that both he and the city attorney do not recommend doing that. That would tie the hands of a future council. It could legislatively be done by rezoning the property and a future council could reverse that. Director Nielsen stated that some of the buffering benefits Mr. Lehman wants to keep from the log cabin could be accomplished by bringing the cabin into setback compliance. It would still block lights from vehicles. The best way to accomplish that would be to plant more trees. Trees will grow taller but the cabin would always be the same height. Trees also soften noise. The applicant could keep the log cabin if CITY OF SHOREWOOD PLANNING COMMISSION MEETING April 19, 2016 Page 6 of 14 it was brought into compliance with the R-1A standards assuming the Planning Commission and Council approve the lot line rearrangement and the variances that go along with that. Commissioner Maddy stated the City has let people build on lots that are not completely conforming. He asked Director Nielsen how nonconforming things can be. Director Nielsen explained the Code states that for existing lots of record to be buildable they have to meet 70 percent of the area requirement and 70 percent of the width requirement and then structures have to meet setbacks. There are existing lots of record that do not meet that with existing houses on them. The houses can be expanded as long as the expansion is consistent with the setback requirements including height. To increase the height of the new portion of the house that has to comply with setback requirements. Commissioner Maddy asked if Mr. Olson’s property and home met the 70 percent requirements. Director Nielsen stated it was an existing lot of record with a house on it and Mr. Olson added on to the house. Someone in the audience clarified a new house was built on that lot. Maddy asked when that house was built. Someone responded in 2002. Mr. Lehman stated they did a major remodel of their home around 2000 / 2001. Mr. Olson took down a garage and substandard cottage and built as big of a house as he could on his lot. On the side of the house facing the Lehman’s it is a walkout three story house and on the other side it is two stories. Director Nielsen stated it is his recollection that the old structure on the Olson property was more nonconforming than the new house. Director Nielsen stated a restriction was placed on the variance in terms of sight lines; it was built further back from the lakeshore to preserve sight lines for the Lehmans’ house. Mr. Lehman stated they worked with Mr. Olson on making that happen and noted that they can no longer see the sunrise. In response to a comment from Chair Davis, Mr. Lehman stated they have owned the property for 30 years. Chair Davis stated it appears to her that the lots around that lake appear to be triangular in shape. Mr. Lehman stated that in considering their request he asked the Planning Commission to think about what would happen if he asked for the inverse of his current request. That is, what if he had two 20,000 square foot lots with two houses on them regardless of how far from the roadway they were located and asked to create the lots as they exist today and build two more houses on the lots. He assumes he would be laughed out of the Council Chamber. He does not understand why there is resistance to what they want to do. From his vantage point they have only asked for what they need. They are resource constrained. He then stated they would like to move the ball forward and sometime in the next 3 – 5 years there will be some type of change; things will not remain status quo. Commissioner Bean stated to the degree that precedent would be set there may be other residents who would want to do the same thing. That is why there is reluctance to spot zoning. Mr. Lehman asked the Commissioners not to get hung up on the zoning because it is a low priority for them. He then stated if any single-family property in Shorewood had three habitable dwellings on it he thought the Planning Commission would be accommodating to reasonable offers to remove two of the habitable dwellings. There are four sewer connections in total on the two existing lots. He commented that they have rented out the cottages in the past and could do so again. He does not think Mr. Olson would like that because the renters would use his beach which is right next to Mr. Olson’s very small beach. He noted doing what CITY OF SHOREWOOD PLANNING COMMISSION MEETING April 19, 2016 Page 7 of 14 is proposed would help eliminate a nonconforming use; that is substantial. Bean concurred with that. Mr. Lehman stated he does not think approving what they have asked to do would set a significant precedent other than a zoning change. Bean then stated from his perspective if it was not for the opportunity to mitigate the nonconformities the variances would not be up for discussion. There is no hardship or restriction that keeps them from making reasonable use of their property. Mr. Lehman clarified they are not asking for a new lot; they have two lots of record with a total of four dwellings on them. Mr. Lehman noted that property owners often ask for lot line revisions to clean things up. He stated their request may be different because of the order of magnitude and their circumstances are special. Maybe if there were not four houses in total on the two lots they may not be asking for what they are. He noted they would like to work with the City in an evolutionary fashion to make what they want happen. Commissioner Johnson asked Mr. Lehman to talk a little more about timing. He noted a variance is good for one year. Mr. Lehman stated it is his understanding that if they have a lot with a dwelling on it and use it as a single-family use it has some rights that are beneficial. Once there is no longer a residence on a parcel “all bets are off”. If there is no dwelling and the lot is substandard it basically cannot be built upon. Therefore, it is important for them to maintain a dwelling on the lot. He noted that the cabins are worth $40,000 – $50,000 each. It will cost him $20,000 each to have them taken down. He stated he can put $20,000 into them to reroof them and fix them up. He could rent them and make $10,000 a year on each of them. He clarified it is not their goal to be landlords. He stated they believe that if the lots can be rearranged as proposed and if the dwelling on the existing smaller lot remains there then when they or someone else comes before a Planning Commission sometime in the future with a proposal that Commission would be receptive. They are willing to take that risk. They do not want the zoning request to prevent moving forward with the lot line rearrangement. He stated they thought the zoning change would make sense for them and future owners but if the Commission does not want to recommend that it is fine. The rezoning is not a priority for them. Commissioner Riedel stated from his perspective the crux of the Lehmans’ argument is risk reduction. He asked why the current proposal reduces risk. It would result in there being one nonconforming structure on one lot and it would be up to staff and a future Planning Commission to recommend approval of variances at that time. There is a risk with doing that. There is also a risk with doing nothing until the Lehmans or another owner of the property is ready to build. He thought a reasonable thing to do at this time would be to do nothing. Mr. Lehman concurred that the least risk would be to do nothing now. He noted he has thought about that scenario. He stated the one nonconforming structure would still be habitable. He then stated it is his understanding that as long as a lot is recognized by the City and recorded with Hennepin County it would be considered as a lot of record. Director Nielsen stated he would research that and explained that it is his understanding that a lot of record has always been those that were in existence when the Zoning Code was adopted. Mr. Lehman stated the Code includes a definition for what is considered a lot of record and a definition for a lot; they are two different things. A lot of record existed before the Code was adopted or it is a lot that the City deems to be a lot provided it has the required green space. He noted he does not know what “required green space” means. Nielsen clarified it meets the setbacks. Mr. Lehman stated the way he interprets things is a lot of record was either in existence before the Code was adopted or one that Council approved. He questioned why the lot line rearrangement, if approved, would not keep both of the lots as lots of record. Nielsen stated he thought that was a little bit irrelevant because the provision that applies to CITY OF SHOREWOOD PLANNING COMMISSION MEETING April 19, 2016 Page 8 of 14 lots of record (i.e.; lots that existed before the Code was adopted) defines them as being buildable if they are under separate ownership and meet the 70 percent requirements. Even if the City approves this it would not meet 70 percent of the area requirement for the R-1A zoning district. He thought lot versus lot of record is a moot point; if Council approves the lot line rearrangement the two reconfigured lots would be lots. Mr. Lehman explained the reason they are willing to take the risk to have the lot line rearranged is things can change. They think that ultimately there should be two lots and that it makes sense to reduce the nonconformity. They should not be prohibited from achieving that goal. There is nothing in the Zoning Code that should prohibit a property owner from reducing nonconformity. The level of that seems to be a “horse trade” from his perspective. Chair Davis stated if the lot line rearrangement was approved and if the zoning remains R-1A then from her vantage point the Lehmans would have to live with that. Director Nielsen clarified setback variances would have to be granted along with that. Director Nielsen explained that in 2006 legislation was passed that would allow a property owner to rebuild a nonconforming structure if it burned down or was demolished. That left cities’ leverage with the zoning tools they have; in this case it would be variances and subdivision. The applicant could try to prove that the log cabin has some historical value. He thought it would be better to move it into compliance with the R-1A standards. Someone else would have to deal with reconfigured 21285 lot in the future. Chair Davis commented that there has been some clever architectural design done for structures on very small lots. Director Nielsen stated the size of the proposed Track B would be 90 feet wide. To build a house on it the setback would be 60 feet (10 on the side and 50 on the side abutting the roadway) and there would have to be at least 30 feet of depth. Although it would be shallow it would be buildable. Mr. Lehman stated a house could easily be 100 feet long. Nielsen stated it could be longer than that provided that a longer house would still allow for hardcover compliance. Chair Davis stated skinny houses have been built along Old Channel Bay. Mr. Lehman stated when he came to City Hall the night before the last Planning Commission meeting [in 2014] with a plan for a 30-foot-wide house which was termed “the barn” he did not submit it because he was not going to have a barn built. They came back with a plan for a 45-foot-wide house which was more in scale with the neighborhood. He then stated that from his perspective people are allowed to build on substandard lots provided they meet the setback requirements. Director Nielsen explained if the Lehmans were willing to move the log cabin into the buildable area of an R-1A lot that building could be added on to as long as it stayed within the 30 foot depth and the 120 foot length. That would be the least risky thing they could do. Mr. Lehman stated his understanding of the Zoning Code states that if, for example, there are two houses 20 feet from the roadway then a third house could be built with a setback that is the average of the setback for the two houses. Director Nielsen clarified that is true as long as those houses are not owned by the Lehmans. They would have to be two adjoining lots. CITY OF SHOREWOOD PLANNING COMMISSION MEETING April 19, 2016 Page 9 of 14 Mr. Lehman stated if the 21285 lot was held in separate ownership and if the log cabin remains where it is, say for example 20 feet from the roadway, then 50 feet plus 20 feet divided by 2 results in a setback of 35 feet along Merry Lane. Director Nielsen stated that could be requested. He also stated that would be all the more reason to move the log cabin into conformity. Mr. Lehman stated it would be better for him to keep the log cabin in its current location because it would grant him an option included in the Zoning Code that would allow the 35 foot setback. Nielsen clarified if the lot line is moved the Lehmans would not be able to build another house with an average setback based on the Lehmans substandard log cabin. Director Nielsen explained he spoke with the city attorney earlier in the day about the request. The attorney indicated that considering everything the request may be premature on the Lehmans’ part. It may be better to sell the properties to a builder. He reiterated the Lehmans could get two years out of the process. It would give them time to work with a realtor to determine what the value of the properties is. Mr. Lehman noted they have come before the Planning Commission with their best effort and they would like the Commission to consider it. They believe their request is reasonable. There are a lot of different scenarios; ones they have likely thought about. Seeing no one present to comment on the case, Chair Davis opened and closed the Public Testimony portion of the Public Hearing at 8:44 P.M. Chair Davis stated that she also thinks the Lehmans’ request is premature. She then stated that from her perspective as a resident unless someone wants to build a long, skinny house on the reconfigured 21285 lot she thought someone would like both properties. Combining the two lots would result in a spectacular piece of property. She would hate to rearrange the lot line and then have a new owner come to recombine the lots. The applicants have not submitted a building plan and seem to be hesitant to make a decision about what they want to do. Commissioner Bean stated he thought the only reason to approve the lot line rearrangement is in exchange for nonconformity mitigation. He noted he would support the 2014 recommendation from staff in order to accomplish that. Absent that, he does not believe there is a rationale for approving it. Chair Davis asked if there are people living in the cottages now. Mr. Lehman responded no. Commissioner Maddy stated that Mr. Olson, or someone else, pushed the reconstruction of a house on 21325 Radisson Road yet the property was less than half the size of the lot area requirement of the R-1A zoning district. On the surface it appears that the Lehmans have two similar situations on their properties now. But, through common ownership and the extreme substandard 21285 Radisson Road lot the City would be setting precedent all throughout the City by approving the lot line rearrangement to try and flex other rules. He is not sure that would be good public policy. If only the lot line rearrangement were approved it would still result in there being two nonconforming structures. The existing house on 21265 would become nonconforming with regard to setback because of the change in the lot size. Bean moved, recommending approval of Peter and Marie Lehman’s request for a minor subdivision/combination for the properties located at 21265 and 21285 Radisson Road as outlined in the staff report and the materials provided by Peter and Marie Lehman including setback variances for their existing house on the 21265 property subject to the nonconforming cottages being removed consistent with the Planning Commission’s 2014 recommendation. There was a question about whether or not there is a time period for which the cottages need to be removed. Commissioner Johnson stated he thought it was 60 days in 2014. Director Nielsen stated in CITY OF SHOREWOOD PLANNING COMMISSION MEETING April 19, 2016 Page 10 of 14 2014 the staff recommendation was within 60 days. There was nothing magical about that time period; it was just a deadline. The lot line rearrangement could be recorded as soon as Council approves it. There would have to be a cash security to guarantee that whatever conditions were imposed would be done within whatever time period is set. Davis seconded. Motion passed 3/2 with Davis and Maddy dissenting. Mr. Lehman asked for clarification on the recommendation. Chair Davis stated she thought the recommendation was approval for the lot line rearrangement including setback variances, the removal of two cabins within 60 days in keeping with the 2014 Planning Commission recommendation, cash security, and time period. Mr. Lehman asked if it meant to remove two or three structures. Chair Davis responded two. Someone else stated he thought it was three. Director Nielsen asked Commissioner Bean how many structures. Commissioner Bean stated his recommendation for removal was to be consistent with the 2014 recommendation by the Planning Commission which indicated two cabins to come down within 60 days and one can stay standing for up to one year. And the 2014 Planning Commission motion read: “Maddy moved, Labadie seconded, recommending approval of Peter and Marie Lehman’s request for a minor subdivision/combination, variances and conditional use permit for their properties located at 21265 and 21285 Radisson Road subject to the conditions identified in the Staff report and allowing the middle cabin to stay standing for up to one year. Motion passed 4/0”. Director Nielsen noted that this will be considered by Council during its May 9, 2014, meeting. Chair Davis closed the Public Hearing at 8:51 P.M. 2. PUBLIC HEARING – ZONING CODE TEXT AMENDMENT REGARDING ALTERNATIVE ENERGY REGULATION Director Nielsen stated he had not sent out materials to the Planning Commission for this item and noted the proposed amendment was initiated by the City. He asked the Commission to open the Public Hearing and continue it until May 3, 2016, and he would have draft amendments available for that meeting. All of the amendments that will be considered were approved for the Mattamy Homes development project. The amendments were recommended by the City’s energy consultant. Chair Davis opened the Public Hearing at 8:54 P.M. Maddy moved, Johnson recommended, continuing the Public Hearing for a Zoning Code text amendment regarding alternative energy regulation to the Planning Commission’s May 3, 2016, meeting. Motion passed 5/0. Chair Davis continued the Public Hearing at 8:55 P.M. 3. Minor Subdivision Applicant: Tom Wartman Location: 26985 Edgewood Road CITY OF SHOREWOOD PLANNING COMMISSION MEETING April 19, 2016 Page 11 of 14 Director Nielsen noted the applicant’s wife had some health issues so he was not able to be in attendance. Nielsen explained Tom Wartman owns the property located at 26985 Edgewood Road. The property is about two acres in size. He is proposing to divide the property into two single-family residential lots. The property drains across the site west to east to a storm drain that picks up the water in a low area and carries it to the other side of Edgewood Road. The city engineer has indicated that is not a reliable outlet. The houses that would be built on the lots would have to be located at such an elevation so there can be one foot of freeboard between the overflow. Staff has been told that it is likely that the City will receive an application for a conditional use permit (C.U.P.) for fill in excess of 100 cubic yards in order to bring the elevations up to the level desired so the builder can build the style of houses they want to build. That would be part of a separate application. The zoning on the property is R-1A/S, Single-Family Residential/Family. Both lots would meet the area and width requirements. Nielsen noted that staff recommends approval of the minor subdivision subject to the applicant granting the City drainage and utility easements of 10 feet around each lot and recording the subdivision and easements within 30 days of receiving the resolution approving the subdivision. Commissioner Riedel asked if the city engineer had any negative comments about things such as drainage. Director Nielsen explained that for the 2013 consideration of this same item the city engineer and the applicant worked everything out. Riedel moved, Johnson seconded, recommending approval of a minor subdivision for Tom Wartman for his property located at 26985 Edgewood Road subject to the five conditions listed in the January 11, 2013, staff report noting the first two conditions must be completed before the application going to the City Council for consideration but no later than 30 days from April 19, 2016, and the park dedication fee is now $6,500. Motion passed 5/0. 4. MATTERS FROM THE FLOOR There were no matters from the floor presented this evening. 5. OLD BUSINESS / NEW BUSINESS Director Nielsen stated twice in the last week the issue of food trucks has come up. It has never come up before. Shorewood does not allow food trucks on commercial or residential property. Someone could apply for a conditional use permit (C.U.P.) to have a food truck on a commercial property. The City received a request from someone who would like to rent the picnic pavilion in Freeman Park and bring in a food truck for an event that would be held there. The Planning Commission may want to add food trucks to its work program. Commissioner Johnson stated Minnewashta Elementary School had five food trucks at its event on April 22. Director Nielsen noted the City has allowed food trucks for public events. Chair Davis noted that Kowalski’s had a food truck at the Arctic Fever event. CITY OF SHOREWOOD PLANNING COMMISSION MEETING April 19, 2016 Page 12 of 14 Commissioner Bean asked what the difference is between a food truck and a catering truck. Director Nielsen stated typically a caterer has a small van and they bring the food into a facility and prepare it. The food purchased from a food truck is usually prepared and sold on site. Bean suggested the discussion about the food truck happen soon; there is an event planned for October 1 and the intent is to have a food truck. Chair Davis agreed that the Commission should discuss food trucks soon. She stated allowing them could make park events more popular. Food trucks are very popular now. Director Nielsen stated he would add the food truck topic to a future agenda. Nielsen then stated the other item that has come up is vacation home by owner. The City has rental housing code that allows people to rent their property out. It does not specify the minimum time it has to be rented out for. The code was intended for long term rental. There has been one property that has been rented for vacation. Four families stayed there and they were up very late at night for the most of one week. The City received a complaint about that so staff spoke with the property owners. He suggested the Commission discuss tightening the code up for weekly or week end rental. The owners of the property live in the house part of the year and rent it out a number of weeks during the summer. Commissioner Johnson asked if the discussion can be postponed until after the Ryder Cup is over. Commissioner Bean stated he had read that a large city on the west coast requires rentals be at least thirty days. Yet, the law stated that after someone stayed in a house for 30 days the renter was deemed an occupant and could not be evicted. So a renter would not let the owners back in their house. Director Nielsen stated there are probably more property owners who do the vacation rentals than the City is aware of. Nielsen then stated earlier in the year Council updated the document about the expectations and roles of City Council liaisons to advisory commissions and commission liaisons to City Council. He had provided the Commission with a copy of the updated document. 6. DRAFT NEXT MEETING AGENDA Director Nielsen stated there is the continued public hearing from tonight regarding alternative energy regulation slated for the May 3, 2016, Planning Commission meeting. He suggested the Commission discuss either food trucks or vacation home by owner. Chair Davis recommended food trucks be discussed first. Chair Davis noted she has a great deal of information about vacation rentals because she did that for a number of years. She stated she thought both topics have some urgency. She suggested the Commission discuss personal hockey rinks before next winter. She stated some of them are nice and some are extremely unsightly. Those with boards may not comply with the City’s fence ordinance. 7. REPORTS • Liaison to Council CITY OF SHOREWOOD PLANNING COMMISSION MEETING April 19, 2016 Page 13 of 14 Chair Davis stated she was the liaison to the City Council March 28, 2016, meeting. During that meeting the topic of the proposed artificial turf for a new playfield in Badger Park was discussed. It was the first time she had heard about crumb rubber. She asked Director Nielsen to comment on crumb rubber. Director Nielsen explained that after that meeting staff learned of bills passing through the Minnesota legislature that would place a moratorium on construction of new artificial turf fields that contain crumb rubber until the State could do a study on crumb rubber. It would also require posting signs that inform people when crumb rubber is used present in existing fields. Staff has been told that the same legislation was proposed last year but it did not advance. The plan is to continue to move forward with the construction of the playfield. The vendor the City plans to use to construct the field has been asked to identify infill alternatives to crumb rubber as a contingency. Any alternative would be more expensive. There is a tremendous amount of information stating there is no evidence that crumb rubber causes health issues. What raised concerns was the airing of an emotional story on ESPN of a woman who thought she contracted cancer because of playing on fields containing crumb rubber. Commissioner Bean stated it was a player on the US Olympic female soccer team. Chair Davis stated there is a cancer cluster in the south amongst girl lacrosse players. Canada is going to ban its use. The use of it is very controversial. She would not want the City to become involved in a law suit if just one child becomes ill from playing on a field containing it. Nor, would she want the City to have to take it out after putting it in. She stated there is lead involved. She asked what happens to the water table. She thought it bears some scrutiny. Director Nielsen stated there has been a lot of scrutiny. The States of Connecticut and Massachusetts both did studies of it. They could not find any scientific evidence of there being any adverse effects from crumb rubber. The crumb rubber is the infill that is kicked up when the field is played on. Commissioner Johnson stated the vendors for artificial turf have been “slinging mud” at each other to make their product appear to be the safe one. Council Liaison Sundberg stated that during its March 28 meeting Council, with reservation, granted concept stage and development stage approval for Oppidan Investment Company’s proposed Shorewood Senior Living project. There are a number of concerns that must be addressed; traffic is a serious concern now. There was discussion about closing the exit off of Highway 7 on to Chaska Road. She then stated there are two senior living projects proposed within a short distance from each other. But, they are the developers’ choices. She went on to state that although the Oppidan project is being wedged into the area there is not much else that could be done with the property. Director Nielsen explained that part of that project is a proposal for tax increment financing (TIF) to offset some of the cost for soil remediation and the extension of Shorewood watermain to the area. Administrator Joynes had spoken with Oppidan representatives about contributing $200,000 more than it had originally proposed for soil remediation. The City would use that money to put in a stormwater management pipe to replace the ditch. The power lines would also be buried. That would provide more room for landscaping. Commissioner Bean asked if there has been any decision made about possibly constructing a sidewalk. Director Nielsen stated that is still being talked about and commented that he does not think a trail along Chaska Road is in the Trail Implementation Plan. Bean stated if the access from Highway 7 to Chaska Road is closed then a sidewalk along Chaska Road would be less critical. CITY OF SHOREWOOD PLANNING COMMISSION MEETING April 19, 2016 Page 14 of 14 Council Liaison Sundberg stated Great Plains Institute was the firm that did the alternative energy study for the City. That firm is using Shorewood as an example of a forward thinking city. The thinking is trending toward believing that the energy issues need to be addressed starting at the grass roots. Sundberg noted that she would not be able to be at the next Planning Commission meeting. • SLUC Chair Davis stated she thought the next Sensible Land Use Coalition session was about park dedication fees. Director Nielsen stated he would attend it and report back. • Other 8. ADJOURNMENT Maddy moved, Davis seconded, adjourning the Planning Commission Meeting of April 19, 2016, at 9:20 P.M. Motion passed 5/0. RESPECTFULLY SUBMITTED, Christine Freeman, Recorder M SHOREWOOD 5755 COUNTRY CLUB ROAD a SHOREWOOD, MINNESOTA 55331 -8927 ® (952) 960 -7900 FAX (952) 474 -0128 ^ www.ci,shorewood.mn.us • cityhaII@ci.shorewood.mn.us MEMORANDUM TO: Planning Commission, Mayor and City Council FROM: Brad Nielsen DATE: 28 April 2016 RE: Ziegler, Dawn and Mike - C.U.P. for Accessory Space in Excess of 1200 Square Feet FILE NO.: 405 (16.05) BACKGROUND Dawn and Mire Ziegler have applied for a conditional use permit to construct an attached garage and room additions on their property located at 25040 Yellowstone Trail (see Site Location map - Exhibit A, attached). The floor area of the new garage, when combined with the existing gazebo brings the total area of accessory space on the property to over 1200 square feet. The property is zoned R -lA, Single - Family Residential and contains 84,829 square feet of area. Exhibit B shows the location of the existing house, gazebo, and the proposed garage and addition. The existing house plus the new additions will contain approximately 4263 square feet of floor area in the two levels above grade. The proposed garage contains 1500 square feet of floor area. The existing gazebo has 342 square feet, which brings the total area of accessory space on the site to 1842 square feet. An existing shed on the property will be removed. The driveway serving the new garage is shown on Exhibit B. The current driveway that comes in from Yellowstone Trail will be removed. ANALYSISIRECOMMENDATION Section 1201.03 Subd.2.d.(4) of the Shorewood Zoning Code contains four specific criteria for granting this type of conditional use permit. Following is how the applicants' proposal complies with the Code: ®111 0 ®04 PRINTED ON RECYCLED PAPER Memorandum Re: Ziegler CUP 28 April 2016 a. The total area of accessory space (1842 square feet) does not exceed the total floor area above grade of the principal structure (4263 square feet). b. The total area of accessory space does not exceed ten percent of the minimum lot area for the R-1A zoning district (.10 x. 40,000 square feet = 4000 square feet). c.The proposed garage and addition comply with the setback requirements of the R1-A zoning district. Hardcover on the property will go from approximately 13.9 to 19.5 percent. d. As shown on Exhibits C - F, the new garage addition will be integrated into the architecture of the existing home. As such the roof lines, materials and architectural character of the garage are consistent with the principal dwelling. Although four garage doors will be visible on the north elevation, the building is 114 feet from the north property line. In light of the preceding, the applicant’s request is considered to be consistent with the requirements of the Shorewood Zoning Code. It is therefore recommended that the conditional use permit be granted as requested. Cc: Bill Joynes Tim Keane Joe Pazandak Dawn and Mike Ziegler -2- w' v may, \ ry \ ��+ >= IGam - . - - 86 \ 00 \ m 98s 066 886 .. .. ..._..._..._.- A51 EXTEROR ELEVATIONS AIX I EXOT- lh G FLOOR PLANS A2XJ EXIS tlG EXTERIOR ELEVATIONS A3XJ EXIST(G EXTERIOR ELEVATIONS 9b'£66X 66 \. \ / _ ... b66 1906, \ OD 06' ` \ - p \ rn \ 6 ��0'/ T \ \ — x = K £'966 - ... ss � i. 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I NEW I I I I I I PANTRY T __T _ I I ❑ F T'' S I 9•xb• I I I I I I I I I I 3 ` GAB F]f PLACE I L_ - - - FULL HT, I 42'REF. L J_ l 1 5TORAGE MILT-IN — — eU1LT• W r I NE R C PTION NEW y V � Y LTE tNy�q FRONT PORCH c l0 4 x 4' -b NEW qq 21' -b z 9' FRONT PORCH e < If I II ..: ---- - -- -:i - - - --- — wJ POt�TICO I VAULTED i N � I I2 x 5I I E NEW EXISTING WALLS rQ3Y?9 t NEW WOOD FRAI-IED WALLS MAIN LEVEL FLAN - PROPO &E® 1/4' x 1' -0' DRESSING -- — — U., x 6.-& - MIRROR A5 , T T MRRORY M MIRROR NEW I M. HALL z 0 AF'PROX WELL LOCATION MESSAGE CENTER :} R4F ��� ❑ , 5 BEVERN�E CENTER NEW Ntw _ - MUD ROOM I KITCHEN I DININGIROOM VAULTED VAULTED 9' -6 x 20' I i I BENCH v/ ( I NEW 3 UP t1oc+;e ABOVE I I I I I GREATI ROOM ' cLOSEj r� _ VAULTED 4 x II DILL I I I I t .:. I NEW I I I I I I PANTRY T __T _ I I ❑ F T'' S I 9•xb• I I I I I I I I I I 3 ` GAB F]f PLACE I L_ - - - FULL HT, I 42'REF. L J_ l 1 5TORAGE MILT-IN — — eU1LT• W r I NE R C PTION NEW y V � Y LTE tNy�q FRONT PORCH c l0 4 x 4' -b NEW qq 21' -b z 9' FRONT PORCH e < If I II ..: ---- - -- -:i - - - --- — wJ POt�TICO I VAULTED i N � I I2 x 5I I E NEW EXISTING WALLS rQ3Y?9 t NEW WOOD FRAI-IED WALLS MAIN LEVEL FLAN - PROPO &E® 1/4' x 1' -0' II NEW HALL I (R R- BATH) I I lO' -6 x 4'•6 I I I 5'•B x 5' EXIBTQY _ STUDY _ II' -B x Il' -6 I III I I III I I I I S I (FMR LI 151•6 x 12'•6 I I NEW I I ;FI'IR FDYERJ r - - -- I w I NEW BNELVEB I APPRox FINISHED AREA = 2,518 SF, Z GARAGE AREA = 1,5oo SE EXISTING PORCH B' -B x 25' -6 Lu DESIGN COMPANY P: 952.250.4215 5421 EASNIEW AVENUE 11INNETR1'WAE IAN 55364 Ih1PORTANT NOTE FOR CONTRACTORS& SUB -CONTRACTORS L These dranings are [w !gn 02'nings. the General CUnUacmr haz the right and respvnvinliryta rezize configurzttoru aM det tz e<paed�me oe ✓geere Besrg Brawings, as rcymrcd, toV rop <rlY CanitrvRateM�aAy sv rA prvett. W Ir�,1 uA *-a 0 W � H C W o 0 Q W a 0 r � o w a N NC/) F eM9 2016.3.3 ONS 2016.3.11 JOB #33915 SHEET # I Exhibit C MAIN LEVEL FLOOR PLAN DRESSING -- — — U., x 6.-& - MIRROR A5 , T T MRRORY M MIRROR NEW I M. HALL z NEW HALL I (R R- BATH) I I lO' -6 x 4'•6 I I I 5'•B x 5' EXIBTQY _ STUDY _ II' -B x Il' -6 I III I I III I I I I S I (FMR LI 151•6 x 12'•6 I I NEW I I ;FI'IR FDYERJ r - - -- I w I NEW BNELVEB I APPRox FINISHED AREA = 2,518 SF, Z GARAGE AREA = 1,5oo SE EXISTING PORCH B' -B x 25' -6 Lu DESIGN COMPANY P: 952.250.4215 5421 EASNIEW AVENUE 11INNETR1'WAE IAN 55364 Ih1PORTANT NOTE FOR CONTRACTORS& SUB -CONTRACTORS L These dranings are [w !gn 02'nings. the General CUnUacmr haz the right and respvnvinliryta rezize configurzttoru aM det tz e<paed�me oe ✓geere Besrg Brawings, as rcymrcd, toV rop <rlY CanitrvRateM�aAy sv rA prvett. W Ir�,1 uA *-a 0 W � H C W o 0 Q W a 0 r � o w a N NC/) F eM9 2016.3.3 ONS 2016.3.11 JOB #33915 SHEET # I Exhibit C MAIN LEVEL FLOOR PLAN a al OI �I ml Q' �I �I I I I I I I I f i I L WALL LEGEND EXI$TIW WALLS i NEW WOOD FRAMED WALLS UPPER LEVEL PLAN - FROPOSED 1/4' = P -0' ALL6 BELOW (9HD1N C I to I Im APPROX. FINISHED AREA 851 SF, E30NUS ROOM AREA - 894 5F. Z W HOH DESIGN COMPANY P: 952.250.4215 5421 EASTVIEW AVENUE MINNETRISTA, MN 55364 IMPORTANT NOTE FOR CONTRACTORS & SU &CONTRACTORS 1. These tlra DraWings. The General fnrprattq ha; the right and respo bgity to ' neguratiae: antl deea'Is peFikiedin the Des'gnel's pn Dranin8s, azregvlred, :o�f0pedrmn :wa a rert„rr.,lry nd wo)ea OeD Generl Cnn d,att' gnotify he Du'gnerv.hen deviating from the D¢:ign Intent 3. The Generl Contrsttel (S res_.le fnr verdying ail ee heath 'ng, W3Qrng � gvenbNg artl 1 ndrzl code regwrementx W W A 0 0H FWW0 W � Z OQ [� O 0 ISSUE Eld Issue 2016.3.11 REVISIONS JOB #33915 1-1 rr Exhibit D UPPER LEVEL FLOOR PLAN I I I i I I I to I Im APPROX. FINISHED AREA 851 SF, E30NUS ROOM AREA - 894 5F. Z W HOH DESIGN COMPANY P: 952.250.4215 5421 EASTVIEW AVENUE MINNETRISTA, MN 55364 IMPORTANT NOTE FOR CONTRACTORS & SU &CONTRACTORS 1. These tlra DraWings. The General fnrprattq ha; the right and respo bgity to ' neguratiae: antl deea'Is peFikiedin the Des'gnel's pn Dranin8s, azregvlred, :o�f0pedrmn :wa a rert„rr.,lry nd wo)ea OeD Generl Cnn d,att' gnotify he Du'gnerv.hen deviating from the D¢:ign Intent 3. The Generl Contrsttel (S res_.le fnr verdying ail ee heath 'ng, W3Qrng � gvenbNg artl 1 ndrzl code regwrementx W W A 0 0H FWW0 W � Z OQ [� O 0 ISSUE Eld Issue 2016.3.11 REVISIONS JOB #33915 1-1 rr Exhibit D UPPER LEVEL FLOOR PLAN 11-i[L� -gala © 11� r� I� mill His WE&T ELEVATION - F-Rof-oeE[) 00-ME-S" 17,110,:, L ill r-11.)m DESIGN COMPANY P: 952.250.4215 1121EASTVIEWAVENUE KIIINNETRISTA. MN 55364 IMPORTANTNOTE FOR CONTRACrORS & SU"ONTRACMRS Ord wings. the GenerallC S,rzROr has �esi8n Gawings, as required, ............ ,�r-eoeg; � nwa to notify then g Wg from the Design Intent. ,x.:gnlnm cunning NORTH ELEVATION - F-ROF-05ED Exhibit E BUILDING ELEVATIONS — NORTH AND WEST • ' '� °:o° ��eo ?� :::sue :::r• -�:: ; �.":::: a:::e:e::a:�:�::�a.:- :�::::�: -• :- •-- •-- • - - -�•- E:;: == - a -s. �s...sr..� �_s: Ss :rs° :sv:s: - °_ -� rr F...rlj._....::,:a:::rs- � :•. -r- .has:' ° =' = :�- �_'s_: r. 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IMPORTANT NOTE FOR -- _uuu EAST ELEVATION - PROPOSED I/4' I' -m• SOUTH ELEVATION - PROP06ED !1 W A o �H o W of � a o0 0 r o H t0 ISSUE Bid 1.. 201e3.11 REVISIONS JOB 1133915 SHEET # A5 Exhibit F BUILDING ELEVATIONS — SOUTH MEMORANDUM CITY OF SHOREWOOD 5755 Country Club Road • Shorewood, Minnesota 55331 •952- 960 -7900 Fax: 952- 474 -0128 • www.ci.shorewood.mn.us • cityha11 @dshorewood.mn.us TO: Planning Commission, Mayor and City Council FROM: Brad Nielsen DATE: 29 April 2016 RE: Lot 11, Christmas Lake — Appeal Zoning Administrator's Determination Regarding Dock Use FILE NO. 405 (16.07) Lot 11 is a vacant lot on the north end of Christmas Lake (see Site Location map — Exhibit A, attached) that was set aside many years ago for residents of the Radisson Inn Addition for recreational purposes such as picnicking, swimming at the beach and so forth. Exhibit B shows the location of the easement which is still shared by a number of property owners in the Radisson Inn Addition. The recreational use included a dock at which boats of certain easement holders have been moored in the past. In January of this year, staff was asked to provide a formal determination as to how many boats could be kept at the dock (see Callies letter, dated 7 January 2016 — Attachment I). My response to that request is contained in Attachment I1— Planning Director's Response letter, dated 31 March 2016. Ms. Callies has filed a formal appeal of that determination — see Attachment III, for which a public hearing has been scheduled for next Tuesday, 3 May. We have received a considerable amount of correspondence (see Attachment IV) from residents on both sides of this issue. We will forward additional correspondence to you as it is received. Finally, we asked the City Attorney to review the material and his advice is included in his memorandum, dated 29 April 2016 (Attachment V). Cc: Bill Joynes Tim Keane Paula Callies Lake Minnetonka 0 rim cr � 0 rz A� n CD S Christmas Lake N A 0 250 500 1,000 Feet c2 O 11!! %W � VILV 0 � EW 0 1;1.lrq cc 00 -------- S-,Z-S- I Ln �m o & at to CO V7 ° Mygy H16ON 8939 J�JON 81'VZV 3.8s G 4 .68N co 3.zZ,40.ILN-: °00 40 19 99*86', so, u Ln Ala-. M cr U" in ry cp pw s ........................ ................ ....... 0 VT- to vT 0:2; 00 LO 19 Sp 86 911 Ae 0 In l LU LL A, 00 Al 0.9 91,1160. 9r co j L) .96 W 191 ra Sln -Ij ICP I GOV Ul L) Scp 100 001 i S) JNV R�l z 691 t43 NOSS LU CIS - - - - - - - -- "WO ISV3 011 ®r n0s;9-60t, 9 Exhibit B 9 001 ',Ito co .29,1V w SITE PLAN 0\ c 0, Lot 11 01 0 L �;z Ar- '16 1 tj144� (� tl 'It N6 ii January 7, 2016 Brad Nielsen, Zoning Administrator City of Shorewood 5755 Country Club Road Shorewood, MN 55331 Re: Easement on Lot 11— Boat Dock Dear Brad; 1 am writing on behalf of several property owners who share an easement over Lot 11 on Christmas Lake. We are requesting a formal determination fi-orn the City of Shorewood concerning the maximum number of boats that may be moored on the dock for the Lot 11 easement. There are currently 14 separate households who hold easement rights to Lot 11, We understand that the easement owners will need to decide amongst ourselves how to allocate the available dock space each season. However, in order to do this and to avoid a potential zoning enforcement action, we first need to know what number of boats the City considers to be permitted on our dock, The history of the Lot 11 easement and dock goes back until at least 1939. For purposes of this letter, J will briefly summarize the history. More information can be found on the website at www. Lot I l .org, Lot 11 is approximately 15,000 square feet with approximately 120 feet of Lakeshore. The easement (the "Lot 11 easement ") is located over a portion of Lot 11 and a single, shared dock is located on the easement, The current easement description is the result of litigation in the early 1990's and a final decision by the Minnesota Court of Appeals in 1993 (review was denied by the Minnesota Supreme Court), Attached are copies of relevant court decisions and documents as follows; • Report of the Hennepin County Title Examiner dated January 6; 1992 • Final Report of Title Examiner dated Mauch 9, 1992 • Hennepin. County District Court Decision filed May 15, 1992 • MN Court of Appeals decision filed March 16, 1993 • Order in proceedings Subsequent June 3, 1998 • Survey of Lot 11 Easement • Map of Lot 11 Easement Location The rights of the Lot 11 easement owners are broad, The easement includes "access to the beach area, for the use of the beach area, for the construction, maintenance and use of dock and general ATTACHMENT I Callies' Letter, dated 7 January 2016 31 March 2016 CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD ® SHOREWOOD, MINNESOTA 55331 -8927 ® (952) 960 -7900 FAX (952) 474 -0128 ^ www.d.shorewood.mn.us e dtyhall @d.shorewood.mn,us Ms. Paula Callies 20465 Radisson Inn Road ' Shorewood, MN 55331 Re: Zoning Determination — Lot 11, Radisson Inn Addition P.I.N. 36,117-23-22-0012 Dear Paula: This letter is in response to your request for a determination as to the maximum number of boats that may be moored at the above - referenced property. First, I want to apologize for not getting this out to you sooner. As you are aware, Lot I 1 has a long and somewhat contentious history and I want very much to get this right. In your 7 January 2016 letter, you conclude that four boats should be allowed to be Dept at the dock that has historically occupied the site. As Shorewood's Zoning Administrator, I have determined that the maximum number is two. Following is how I come to my conclusion: L Nonconforming Use. The current zoning of Lot 11 is R -1C /S, Single - Family Residential /Shoreland. Each zoning district contains lists of allowable uses including Permitted, Accessory and Conditional. Lot 11 currently exists as a vacant lot over which several households in the Radisson Inn Addition have easements to use a portion of the lot for recreational purposes. This recreational use of the property is not listed in the R- 1C /S District under permitted, accessory or conditional. Therefore, the use of the property is nonconforming. Nonconforming uses are subject to the provisions of Section 1201.03 Subd. 1. of the City Code. Following are pertinent paragraphs of that section: "a. Purpose. It is the purpose of this section to regulate nonconforming structures and uses and to specify those requirements, circumstances and conditions under which nonconforming structures and uses will be operated and maintained. The zoning ordinance establishes separate uses which are permitted in that district. It is necessary and consistent with the establishment of these districts that nonconforming structures and uses not be permitted to continue without restriction. Furthermore, it is the intent of this section that all nonconforming uses shall be eventually brought into conformity. " ATTACHMENT II ®� Planning Director's Director's Response Letter, dated ®�® PRINTED ON REC 31 March 2016 April 12, 2016 APPEAL OF ZONING DETERMINATION — LOT 11 RADISSON INN ADDITION P.I.N. 36-117-23-22-0012 I. APPLICANTS: Paula Callies & David Downs 20465 Radisson Inn Road Eric and Barb Newhouse 20445 Radisson Inn Road Gary Krebs & Nancy Wellner 20555 Radisson Inn Road Todd & Melissa Nichols 20780 Radisson Inn Road Elaine Hastings 5495 Radisson Entrance Road Steve and Jessie Berchild 20435 Radisson Inn Road Edna & Cyrus Zulghadr 20505 Radisson Inn Road Michael & Janet Cohen 20640 Radisson Inn Road Paul & Carol Seifert 5515 Radisson Entrance Road The above-named parties (hereafter referred to jointly as the "Applicant" or "Applicants ") are each owners of a shared easement on Lot 11 and each has an individual property interest at stake in this matter. II. DATE OF REQUEST FOR ZONING DETERMINATON: January 7, 2016 DATE OF ZONING DETERMINATION: March 31, 2016 III. TYPE OF APPEAL AND APPLICABLE LAWS AND REGULATIONS This is an appeal of the Zoning Administrator's Determination (the "Determination ") that a maximum of two (2) boats is permitted on the dock located on the Lot 11 Easement. The Determination is incorrect because: 1. The Determination did not take into consideration the unique character of Lot 11 with the shared easement as defined by MN Courts and the Final Report of the Hennepin County Title Examiner. 2. Four boats on the Lot 11 dock is in conformance with Shorewood City Code and LMCD regulations. A determination that only 2 boats is permitted is arbitrary and not reasonable under the circumstances. ATTACHMENT III Callies' Appeal IV. DISCUSSION A. Background Documents The Applicant's Request dated January 7, 2016 with attached documents are incorporated by reference and included as part of this appeal. These documents include the following: • Report of the Hennepin County Title Examiner dated January 6, 1992 • Final Report of Title Examiner dated March 9, 1992 • Hennepin County District Court Decision filed May 15, 1992 • MN Court of Appeals decision filed March 16, 1993 • Order in Proceedings Subsequent June 3, 1998 • Survey of Lot 11 Easement • Map of Lot 11 Easement Location B. The Easement on Lot 11 The easement on Lot 11 (the "Easement ") is, "for access to the beach area, the use of the beach area, and for construction, maintenance and use of dock extending from the shoreline of Lot 11 into Christmas Lake and general recreational purposes associated with the use of the beach area and dock for the benefit of lands described... ". This easement appears on the property title for each of the Applicants and other homeowners in the Radisson Inn Addition. C. The Historical Use of Lot 11 and the Easement is for Recreational Purposes Lot 11 is approximately 15,000 square feet with approximately 120 feet of lakeshore. The Easement is located over the southerly portion of Lot 11 and extends along the lot's entire shoreline, with a depth of approximately 45 feet and a "hockey stick" shape. See Survey and Map of Lot 11. Access to the Easement is from Shore Road. A single dock, jointly shared by the Easement owners, is located on the Easement. The current easement dimensions are the result of litigation in the early 1990's and a final decision by the Minnesota Court of Appeals in 1993. However, the Easement was first established with the Radisson Inn Addition in approximately 1940. Originally, the parcel was used as the beach for the seasonal cabins and historic Radisson Inn on Christmas Lake. There is a very long history of shared usage of the parcel for beach and associated recreational purposes. This is not a typical residential lot, nor even a typical nonconfolminglot. To date, there has never been a residence on Lot 11. Lot 11 has traditionally been used for recreation. It is critical to understand the history of the Easement and that Lot 11 is subject to the Easement in a determination of the related dock and boat rights. However, the Zoning Administrator did not consider these facts in his determination. The Easement Owners, including the owner of Lot 11, share the same easement rights. In legal terms, the Easement is the dominant estate and Lot 11 is the servient estate because Lot 11 is encumbered by the restrictions of the Easement. A photographic history and other background can be found on the Lot 11 website at www. LotlLor . D. The Zoning Administrator' Conclusion that a Maximum of Two (2) Boats is Permitted on the Easement Dock is in Error. The Zoning Administrator came to an incorrect determination because he ignored important facts regarding historical usage of the Easement and legal precedents. The current zoning of Lot 11 is R-1C /S, Single-Family Residential /Shoreland. As discussed above, Lot 11 is a vacant lot subject to the Easement for a dock and general recreational purposes associated with a beach and dock as described above. The Zoning Administrator mistakenly determined that the use of Lot 11 for recreational purposes makes the lot nonconforming. The Shorewood Zoning Code does not require that every lot in the R-1C district be developed, nor that a vacant lot cannot be enjoyed for its recreational purposes. There is nothing unusual, or nonconforming about lakefront property being used for recreation. The issue in the present case is the number of boats allowed on the Easement dock. The Zoning Administrator has determined that the dock is a nonconforming use because there is no associated principle dwelling on the property, as ordinarily required by City Code Section 1201.03, subd.14. However, Shorewood City Code Section 1201.03, subd.14 (c) specifically states that the "number of restricted watercraft, as defined by the LMCD, that may be docked or moored on a single property is limited to four." More than four boats may be docked by obtaining a multiple dock license if other conditions are met. The Zoning Administrator fails to address City Code section 1201.03, subd.l4 (c) which allows four boats on a dock in his determination. Instead, the Zoning Administrator refers to LMCD Section 2.02, subd.3 for support of his conclusion that only 2 boats are allowed. This is in error. First, Shorewood City Code Section 1201.03, subd.14 (g) provides that docks must comply with the LMCD "unless specified otherwise in the city zoning code." The issue here is the number of boats, not the dock per se. Regardless, city code section 1201.03, subd.14 (c) does "specify otherwise" and states that four boats are allowed. LMCD Section 2.02 is not applicable. 3 Second, even if the LMCD regulation is applicable, Section 2.02, subd.3 allows four restricted watercraft on a lot with no residential structure on the site under certain conditions. It is significant that the underlying conditions refer to "common ownership and unified use of the site" and that the dockage rights are owned by the owners of the parcel. Clearly the intent is to avoid rental or assignment of dock space to persons other than the owners of the dock. The present appeal involves a request by the Easement owners, all of whom share ownership in the dock and own property rights to Lot 11 through the Easement, to use the dock in a manner consistent with their property interest and Shorewood ordinances. A copy of LMCD Section 2.02 is attached. Conclusion The Zoning Administrator's determination takes too narrow an interpretation of City Ordinance and fails to consider its underlying purposes. Moreover, the Minnesota Courts have already established rights to the Easement on Lot 11, including the right to a dock. Four restricted watercraft are allowed on a dock per City Code and should therefore be permitted on the Lot 11 dock. Sincerely, Paula A. Callies 4 r i STAT S OF MINNESOTA COUNTY OF HENNEPIN In the Matter of the Petition of A0Y EUGENE AHERN, Petitioner, V, LkRSON, ET. Al, and PAUL 0. AUERECHT and PATRICE M. AUERECHT, Respondents, . For an Order Construing an Easement, DISTRICT COURT JUDICIAL DISTRICT i " PURSUANT TO MOTION 1 MOTION fiE AMWED ORDER FINDINGS AND TO THE HONORABLE JUDGES OF THE DISTRICT COURT OF HENNEPIN COUNTY, The above matter came on for hearing on the 20th day of September, 1991, before me, the undersigned Referee, Ronald H, Groth and Scott Hoke of the 'firm of Thomson, Moran & Groth, Ltd. appeared as attorneys for the petitioner, Thomas L. Owens appeared as' attorney for respondents Larson, et. al., and respondent Paul Q. Aubrecht appeared pro se, The undersigned Referee, having considered the arguments made at the hearing on the Motion and having considered the Memorandum in support of petitioner's motion and the Memorandum of respondents In opposition to petitioner's motion, now makes the following findings and ruling pursuant to said motion, to wit: 1. Petitioners motion to strike finding nos. 8► 9, and 10 Is denied. 2. Petitioner's motion to add a new finding no. 8 Is denied. S, Petitioner's motion to add new finding no. 9 is denied but see, comments in attached Memorandum. d. Petitioner's motion to add new finding no. 10 is denied. 1 5. Petitioner's motion to add new finding no. 11 is denied. 6. Petitioner's motion to add new finding no. 12 is denied as to the dock restriction and see the Memorandum as to further comment with regard to paragraph no.6 of petititoner's motion. 7. Petitioner's motion to add new finding no. 13 is granted with the provision that Certifieate of Title No. 467563, the certificate held by defendants Larson, bo omitted from Said revised finding and said finding should be number 11 and should read as follows: 11 , The owners of the property described In Certificate of Title Nos. 699199, 686128, 469797, 450796, 450796, , 639009, 729079, 383629, 732994, 267644, 636602, 700106, 324933, 189549, 699026, 689025, 103458, 515092, and 451927 are in default. S. Petitioner's motion to strike Conclusions of Law Nos. 1 through 9, inclusive, and replace them with Suggested Conclusions of Law Nos.1 through 4 set forth in petitioner's motion is denied and See the attached Memorandum for comment relative thereto and a clarification of the dock rights issue. Conclusions of Law No. 6 is amended slightly as follows (see also memorandum which follows: S. That there exists over a northerly part of ..Lot 11 an easement of sufficient size (at least 10 feet in width) to allow ingress and egress to the beach/general recreational area of Lot 11. Further, paragraph 2 of the Recommended 5inal Order at page 6 of the Report of Examiner dated September 5, 1991 should be amended in accordance with said finding to read as follows: 2. That the Registrar of Titles upon the filing with him of a certified copy of this Order and a certified copy of the plat of survey or stipulation defining said easement area show by memorial .upon Certificate of Title Nos. 686128, 699236, 469690, 741717, 532741, 6243-2, 688083, $77640, 251341, 641766. 316602, 639674,< 499367, 660100, 620004, 674027, and 487$63, that the easement over Lot 11 appearing as a recital is reformed as follows: Together with an easement as defined in plat of survey (or stipulation) filed in Torrens Case No. A- 24774, a certified copy of which Is filed as Document No. there Insert the document nurmW assigned to the ceftfied copy of the pi-at of survey or stipulation), for access to the beads area, for the use of the beach area, for construction, maintenance and use of dock and general recreational purposes as=dawd with the use of the beach area and dock for tho benefit of 911 ,01 the lots in Radisson Inn Addition over that part of Lot i t dascribed as follows: (Here insert the description of the easement area over part of Lot 11 as determined by survey or by stipulation) 3 TO AMEND FINDINGS AND CONCLUSIONS OF LAW. Petitioner cites In the Memorandum 'supporting its motion to amend that the Court has implicitly concluded that the ingress and egress easement unduly burdens all of tot 11 and unduly interferes with the enjoyment of Lot 11 by the fee owner. Petitioner also states that the Court has Implicitly concluded that a ten foot easement along the Easterly side of trot 11 is a reasonable location for both petitioner and defendants and is s convenient and suitable way over Lot 11 to the beach area for the easement holders. Petitioner goes on to allege that the Court failed to make Findings of Fact specifically -addressing those issues. However, Finding no. 8 by the Court finds that the easement is ambiguous as to its physical location and as to its use. That finding, read together with 5uggeste'd Conclusions of Law Nos4, 4, 5, 6 and 7 makes It clear that the Court has found that the easement is ambiguous, the Court has the jurisdiction, authority and responsibility to rewrite the ambiguous easement based on the evidence and testimony and accordingly, by the above - stated Findings of Fact and Conclusions of Law, the Court has found that the-easement is an easement for general recreational purposes over the entire shoreline which is the southerly boundary line of Lot 11, that said use includes construction of a dock, and there exists over the northerly part of Lot 1.1 an easement �2f riff 'g Si .e to allow ingress and egress to the beach/general recreational area of Lot 11. The Court has not determined that said easement is limited to a ten foot strip, but Conclusion of Law No. 6 should be clarified and is hereby clarified to state that the fairest and most equitable location for said access strip Is along the easterly line of said Lot 11, Further, said easement is at least ten feet in width, but the Court has not made the determination that it Is limited to ten feet. It may be that the parties need a wider easement for ingress and egress. The issue of the illegality of the dockage rights granted by the Court raised at Paragraph 10 of petitioner's Memorandum in support of, his motion is correctly addressed by defendants Lesson, et. at., In their Memorandum in opposition to petitioner's motion. All of the 18 owners who interposed answers in this proceeding and who therefore have easement rights upon Lot 11 are subject to applicable federal, state and local laws and ordinances including any laws of the City of Shorewood regulating the number of docks and boat slips and boats which can be moored on said docks, Obviously, the idea of all 18 easement holders building docks and mooring boats at the same time on Lot 1 i is very Eli disturbing to poUtioner. HpwOvar, WO*rdinc9 t® all Ovidertoo at 1,ho haaeirsq, thOm wdO noVot a time in the history of the use `of Lot I i when all of the easement holders exercised their rights to dock and moor boats at the same time. Further, it is obvious that any such rights, which exist, are subject to regulation and limitation by the Appropriate governing bodlos. It Is also mentioned by petitioners at paragraph i of their Memorandum that petitioners take issue with the Court's statement at Paragraph 4 of its Memorandum that the "use of the fish house, barbecue and board walk began when the aasament was Oreated " Aooarding to petitioner's Memorandum, "such is not the rase. Some of those uses simply continued, but there were no uses of the property". That sentence in petitioner's memorandum Is indefinite and may contain a typographical srror. However, dates in question that are significant are the uses of the property from the date'ot the easement on, and those uses were consistent. It is irrelevant whether or not the uses of the easement area.began before or after the easement was drafted and recorded. Respectfully submitted this 91h day of January, 1992. 9 W TO THE HONORABLE JUDGES OF THE DISTRICT COURT OF HENNEPIN COUNTY: FINDINGS OF FACT 1. That on -the 4th day of January, 1985, the Registrar of Titles enter of Title No. 658856 to Roy Eugene Ahern for land described as follow ed Certificate s� Lot 11, Radisson Inn Addition. 2. That there appears on said certificate the following recitals: Subject to an easement over and upon said lot, existing in favor of all of the lot owners in Radisson Inn Addition, for the purpose of ingress and egress to the bathing beach adjoining the said lot, as shown i Document Nos. 152261 and 163421, Files of the Registrar of Titles• and Subject to an easement over and upon Lot 11, said addition, for the purpose of ingress and egress to the bathing beach adjoining said Lot 11, as shown in Document No. 152262, Files of the Registrar of Titles. 3. That said land was registered in Torrens Case No. 4829 an Registration was entered on November 9, 1939, d the Decree of I 4. That the Decree of Registration was filed as Registrar of Titles Document No. 152261, which Decree registered the land "subject to an easement over Lot 11, existing in favor of all of the lot owners in Radisson Inn Addition, for the purpose of ingress and egress to the bathing beach adjoining the said lot ". 5. That Document No. 152262, Files of the Registrar of Titles, is a deed dated and filed November 7, 1939 from Louis W. Cohen and Irene Cohen, grantors, who were the applicants in Case No. 4829 to John J. Hayes, grantee, for Lots 5 and 5A, Radisson Inn Addition, " together with an easement over and upon Lot 11, Radisson Inn Addition, for the purpose of ingress and egress to the bathing beach adjoining said Lot 11". 6. That Document No. 163421, Files of the Registrar of Titles, is a quit claim deed dated December 23, 1940 and filed December 27, 1940 from said Louis W. Cohen and Irene Cohen, husband and wife, grantors, to John J. Hayes, grantee, for Lot 11, -Radisson Inn Addition, "subject to an easement over and upon said lot for the benefit of all of the owners, their heirs and assigns of the lots of said Radisson Inn Addition, for the purpose of ingress and egress to the bathing beach adjoining said Lot 11, Radisson Inn Addition ". 7. That both of said recitals listed at Finding No. 2 above appearing on Certificate of Title No. 658856 refer to the same easement. 8. That this easement, as it appears in said recitals, is ambiguous as to (a) its physical location (i.e., whether it covers all or part of Lot 11 and if only a part of Lot-11, which part?), and (b) as to limitations, if any, on the use of the easement area. 9. That evidence and testimony was introduced at the hearing to establish the location and use to which this easement was put at its inception and to which it has been put during its existence until the present time, which evidence was for the purpose of determining the intention of the original parties to the easement. 10. That respondents have filed a Second Amended Answer and Counterclaim which alleges that by mistake DI-229mial the complete uses of the easement intended by the parties were not expressly set forth in the original easement which changes the language of the original answer, substituting the underlined words above for the words "consisting of scrivener's error in the drafting of the original document". 0 1 The owners of the property described in Certificate of Title Nos. 699199, 686129, 469797" �/ 450795; 450796 639009, 729079, 383829, 732990' 267644 636602 706105 324933 189549 69902'6, 699025, 103458; 515092', and 451927 are in default and the relief granted herein is limited to Lot 11 and the benefited lots of the answering defendants which lands are described in the Order herein. SUGGESTED CONCLUSIONS OF LAW 1. Respondents Second Amended Answer qnd Counterclaim should not be stricken but is hereby allowed under Rule 15.02, Minnesota Rules of Civil Procedure. 2. The language of the easement on Certificate of Title No. 658856 is ambiguous. _j 3. This Court has the authority and responsibility under applicable Minnesota law including the holding in Fames v. Lane, 281 Minn. 222, 161 N.W.2d 297(1968) to rewrite the ambiguous easement based on evidence and testimony adduced at the hearing. 4. Evidence and testimony at the hearing established the intent of the parties creating the easement and the intent of the parties in whose favor it runs that the installation and maintenance of a dock and other structures for the mooring of boats was and is an intended and permitted use under the easement. S. This easement, at and since its inception, was intended for general recreational purposes over the entire shoreline (southerly line) of Lot 11 which constitutes the "beach" or "bathing beach" and the area located immediately to the north of the I sandy beach upon which was built the boardwalk, screen house ( "fish house "), and including the area where the barbeque pit is now located. 6. That there exists over a northerly part of Lot 11 an easement of sufficient size (10 feet in width) to allow ingress and egress to the beach /general recreational area of Lot 11. ' �-~ I !� 7. That the use of the central and northerly part of Lot 11 other than for access to the bathing beach and general recreational area located to the south was casual and intermittent by the easement holders and no permanent improvements or structures) were ever located thereon, and no easement rights other than an easement corridor for ingress and egress at paragraph 6 above exist over the balance of the northerly and central pars of Lot 11. 8. That there has been obtained a plat of survey showing the improvements and topographical features of Lot 11. The dimensions of the beach /general recreational area and the ingress/egress. corridor to be used as access to the southerly portion of Lot 11 which is the beac:general recreational area are depicted on a copy of the plat of survey filed as part of this Report. 9. That the easement description of the beach /general recreational area and the ingress and egress corridor is as follows: That part of Lot 11, "RA®ISSON INN ADDITION ", described as beginning at the Northeast corner of said Lot 11; thence on an assumed bearing South 75 degrees 19 minutes 46 seconds West, along the Northerly line of said lot, a distance of 10.03 feet; thence South 9 degrees 59 minutes 33 seconds East, parallel with the East line of said Lot, a distance of 85.00 feet; thence South 54 degrees; 44 minutes 11 seconds West a distance of 11'0.16 feet to the West line of said Lot; thence South 10 degrees 00 minutes 01 seconds East, a distance of 37 feet more or less, to the shoreline of Christmas Lake; thence Northeasterly along said shoreline to the intersection with the East line of said Lot; thence North 9 degrees 59 minutes 33 seconds West along said East line to the point of beginning. 10. That the lands benefited by said easement are described as follows; Lots 2, 2A, 4, 4A, 6, 6A, 7, 8, 9, 10; Lot 12; That part of Lot 13, lying Northerly of a line drawn Westerly from the Southwest corner of Lot 10, said addition, said line being perpendicular to the Westerly :ine of said Lot 13 and lying Easterly of a line drawn parallel with and 67.00 feet Easterly, measured at right angles from the Westerly .ine of said Lot 13 and its Northerly extension; Lot 13, except that part lying Northerly of a line drawn Westerly from the Southwest corner of Lot 10, said addition, said line being perpendicular to the Westerly tine of said Lot 13 and lying Easterly of a line drawn parallel with and 67.00 feet Easterly, measured at right 0 �� I angles from the Westerly line of said Lot 13 and its Northerly extension; Lot 18; All of Lot 21 except that part thereof described as follows: Commencing at the Southwest corner of said Lot 21; thence North on West line thereof 149.14 feet, thence at right angles East 99.45 feet, thence 90- degrees left 46.52 feet to angle point in the Northeasterly line of said Lot 21; thence Southeasterly along Northeast line of said Lot 21, a distance of 124.5 feet to the most Easterly corner thereof, thence Southwesterly along the Southerly line of Lot 21, 249.85 feet to beginning; That part of Lot 22 lying Southeasterly of a line drawn from a point on the Easterly line of said Lot distant 165 feet Southerly from the Northeast corner of said Lot to the intersection of the Southerly line of said Lot 22 and the Northerly extension of the Westerly line of Lot 16 and there terminating; That part of Lot 22 lying Northwesterly of a line drawn from a point on the Easterly line of said Lot distant 165 feet Southerly from the Northeast corner of said Lot to the intersection of the Southerly line of said Lot 22 and the Northerly extension of the Westerly. line of Lot 16 and Southeasterly of a line drawn from a point on the Easterly line of said Lot distant 165 feet Southerly from the Northeast corner of said Lot to a point distant 50 feet Northerly from the most Northerly corner of Lot 21; That part of Lot 22 lying Southerly of a line drawn from a point on the Easterly line of said ,lot distant 100 feet Southerly from the Northeast corner thereof to a point on the Westerly line of said lot distant 100 feet Southerly along said Westerly line from the Northwest corner thereof, except that part of said Lot 22 lying Southeasterly of a line drawn from a point on the Easterly line of said lot distant 165 feet Southerly from the Northeast corner of said lot to a point distant 50 feet Northerly from the most Northerly corner of Lot 21 and there terminating; That part of Lot 22, lying Northerly of a line drawn from a point on the Easterly line of said lot distance 100 feet Southerly from the Northeast corner of said lot to a point distant 100 feet Southerly along the Westerly line of said lot from the Northwest corner of said Lot; Lot 25; All in Radisson Inn Addition; Tracts S and C, Registered Land Survey No. 550; Tract E, F and G, Registered Land Survey No. 730. 5 Nr I 1 1 . That the easement appearing in two recitals on Certificate of Title No. 658856 describing an easement for "ingress and egress to the bathing beach adjoining Lot 11" as shown in Document Nos. 152261, 163421 and 152262 is reformed to read as follows and the Registrar of Titles upon the filing with him of a certified copy of this Order and a certified copy of the plat of survey defining said easement area, show by memorial on Certificate of Title No. 658856 that the easement is reformed to read as follows: Subject to and together wit an easement as defined in plat of survey filed in Torrens Case No. A- 24774, a certified copy of which is filed as Document No. (here insert the document number assigned to the certified copy of the plat of survey), for access to the beach area, the use of the beach area, and for construction, maintenance and use of dock extending from the shore line of Lot 11 into Christmas Lake and general recreational purposes associated with the use of the beach area and dock for the benefit of lands described in Order Document No. (here insert the document number assigned to this Order), over that part of Lot 11 determined in Torrens Case No. A- 24774, and described in Court Order Document No. (here insert the document number assigned to the Order). 2. That the Registrar of Titles upon the filing with him of a certified copy of this Order and a certified copy of the plat of survey defining said easement area show by memorial upon Certificate of Title Nos. 686128, 699236, 469590, 741717, 532741 624432, 688083, 677640, 251341, 541755, 316602, 639674, 718384, 499357, " 660100, 620004, 674027, and 487563, or any successor Certificate issued for the land described in said Certificate that the easement over Lot 11 appearing as a recital is reformed as follows: Together with an easement as "defined in plat of survey filed in Torrens Case No. A- 24774, a certified copy of which is filed as Document No. (here insert the document number assigned to the certified copy of the Plat of survey), for access to the beach area, for the use of the beach area, and for construction, maintenance and use of dock extending from the shore line of Lot 11 into Christmas Lake and general recreational purposes associated with the use of the beach area and dock for the benefit of lands described in Order Document No. (here insert the document number assigned to this Order) over that part of Lot 11 0 determined in Tarrens Case No. A- 24774, and described in Court Order 'Document No. _ (here insert the document number assigned to the Order). 3. That in future Certificates of Title entered for Lot 11, and the land described In the other Certificates of Title listed at Paragraph 2 of this Order above, the Registrar of Titles omit the recitals now appearing on the current Certificates and in lieu thereof, place In said future Certificates of Title the recital as set forth in Paragraph 1 or Paragraph 2 above as appropriate, and that he omit also the memorial of this Order. Respectfully submitted this 9th day of March, 1992. Z. �1�C� %%. DEPUTY E)(AMINER, OF i Le N' MEMORANDUM RELATING TO RECOMMENDED FINAL ORDER The description of the easement area, drafted by the County Surveyor, is set forth in Suggested Conclusions of Law No, 9, This Court agrees with petitioner's position that the proper width of the access easement is 10 feet. Respondents' position that a 20 foot wide easement is needed (set forth in Mr. Owens' letter of March 2, 1992) is without merit. Most alley easements in the City of Minneapolis in residential areas are 12 feet in width. These alleys are built to accommodate considerable amounts of motor vehicle traffic including access to driveways and garages by automobiles as well as through traffic by automobiles, delivery trucks, emergency vehicles, trash removal trucks, etc. Therefore, an access corridor 10 feet wide which will be used primarily by pedestrians is certainly sufficient. Petitioner and Respondents will have to cooperate in creating a 10 foot access corridor which will be free from obstructions such as brush and small trees. Part of the "berm" area in the 10 foot corridor as.shown on the plat may have to be graded to make a more passable access easement area. The beach /recreation easement area as described in the Recommended Order includes the area used by the easement holders since the beginning of the easement for uses described in the Referee's Memorandum dated September s, 1991. The Northerly line of the beach /recreation area is drawn to run just Northerly of the barbeque grill. This easement conforms to the evidence at the hearing as to the area of use since the creation of the easement. law. This memorandum is made a part of the foregoing findings of fact and .conclusions of Respectfully submitted this 9th day of March, 1992. _, DEPUTY EXAMINER OF TITI PS N. EV N- 20 im Ronald H. Groth and Scott Hoke Thomson, Moran & Groth, Ltd. 1400 First Bank Place West Minneapolis, MN 55402 -3589 Thomas L. Owens Attorney at Law 1512 First Bank Place West 120 South Sixth Street Minneapolis, MN 55402 Spencer G. Kluegel Attorney at Law 17809 Hutchins Drive Minnetonka, MN 55345 Paul 0. Aubrecht Patrice M. Aubrecht 20575 Radisson Inn Road Shorewood, MN 55331 Notice is hereby given that the within Report of Examiner was filed with the Clerk of this Court on the 0day of 1992. DIRld 10911191611 MITI , ) 06; i STATE OF MINNESOTA ) COUNTY OF HENNEPIN ) I hereby certify that in pursuant to Rules of Civil P cedu a for the District Courts of Minnesota, Rule 53.05 (1), on the 10 day of 1992, at the City of Minneapolis, Minnesota, I mailed in a sealed envelope, posta a re aid, a co of the within Report and Notice to each of the above -named attorneys at their respective addresses. IN TESTIMONY WHEREOF, I have hereunto set my hand ed t e seal of said Court, at the City of Minneapolis, in said County, this (� day of and , 1992. BUT, 101-3 011 �-r2, 1 HZEEMM Hennepin County DC File No. A24774 In the Matter of the Petition of: Hoy Eugene Ahern, petitioner, vs. Stephen L. Larson, et al., Respondents, Paul Q. Aubrecht ' Patrice M. Aubrecht, Respondent. Norton, Judge Ronald H. Groth Thomson, Moran & Groth, Ltd. 100 South Fifth Street Suite 2250 Minneapolis, MN 55402 ®1221 Thomas L. Owens 1512 First Bank :Place West 120 South Sixth Street Minneapolis, MN 55402 Filed March 16, 1993 Office of Appellate Courts Considered and decided by Norton, Presiding Judge, ICalitowski, Judge, and Mulally, Judge.* °Retired judge of the district court,, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. Vi, § 2. • P I N I • alleges Appellant - trial court improperly lakeshore easement. We disagree and affirm. unimproved. Lot 11, one of these unimproved lots, fronted Christmas Lake. The deeds for each of the lots, including Lot 11, contained language substantially similar to the following: [Lot 11 is] [s]ubject to an easement over and upon said Lot, existing in favor of all of the lot owners in Radisson Inn Addition for the purpose of ingress and egress to the bathing beach adjoining the said Lot, as shown in Document Nos. 152261 and 163421, files of Registrar of Titles. A Torrens proceeding placed similar language. into each of the lots certificates of title. Lot 11 was sparingly used for forty years. Howard Smith, an MM ME S z I. Standard of review. Appellant argues that the referee's decision was based on improper evidence: easement uses after the 1939 grant and noncredible testimony by Smith. Respondents contend that because appellant failed to move for a new trial, we must consider only whether the evidence was sufficient to support the trial court's findings and whether the findings supported its conclusions of law. Under this standard, evidentiary rulings and other errors at trial may not be considered. Sauter v. Wasemiller, 389 N.W.2d 200, 201® 02 (Minn. 1986) Appellant admits that he made no motion for a new trial, but argues that his; motion to the referee to amend his findings and his motion to the district judge to reject the referee's report were procedurally similar to a motion for a new trial and that therefore evidentiary errors can be considered by this court. Appellant's argument has two problems. First, Sauter clearly contemplates a motion for a new trial under Minn. R. Civ. P. 59.01 as the only acceptable method to preserve evidentiary matters for review. Second, even if appellant's posttrial motions were procedurally similar to a motion for a new trial, appellant failed to argue in thos ;e motions the same evidentiary issues he now wishes ®4® �^S3 mc Latent ambiguity is especially a problem where the easement provides access but does not say why access is granted. The Maine supreme Court spelled out the problem particularly well in the context of an easement that provided access to a river: The achieving of access to a river, however, is generally not the entire purpose for which a right of way providing such access is created. Also involved is why it was necessary, or desirable, to be able to reach the river. As to this aspect of purpose, the language of the deeds provides no answer. Thus, the language of the deeds may be unambiguous so far as it goes, but it does not go far enough in respects that are critical to the evaluation of the full scope, contemplated by the parties, of the use to be made of the right of way. In such context a court may properly resort to extrinsic evidence of purpose. Badger v. Hill., 404 A. 2d 222, 225 (Me. 1979) ; see also Klotz v. Horn, 558 N.E.2d 1096 (Ind. 1990); Hudson y. Lee, 393 P.2d 515 (Okl. 1964). Lontra Lakeside Launches. Inc. v. Austin Yacht Club, Inc., 750 s.W.2d 868 (Tex. Ct. App. 1988). Minnesota appellate courts have twice considered whether the owner of an easement that provides access to a-body of water allows that owner to build a dock. In Farnes v. Lane, 281 Minn. 222, 226- 27, 161 N.W.2d 297, 300 -01 (1968), our supreme court followed the Maine example by allowing extrinsic evidence and suggested a set of questions to be asked when a court construes such an easement. The -6- _�s F'arnes approach has been applied by this court on similar facts. Lien, 403 N.W.2d at 286. Appellant argues that this is a case of reformation of instrument, and because respondents wish to build one or more docks on Lot 11, respondents carry the burden of proving by clear and convincing evidence that the parties to the agreement intended such use. See Nolan, 429 N.W.2d at 923 (reformation of deed must be proved by clear and convincing evidence). However, on closer inspection, this is not "reformation" at all. A reformation is the changing of a written instrument when the following elements are proved: (1) There was a valid agreement between the parties expressing their real intent; (2) the written instrument failed to express that intent; and (3) this failure was due to a mutual mistake of the parties, or unilateral mistake accompanied by fraud or inequitable conduct by the other party. Id. (citing Nichols v. Shelard Nat'l Bank, 294 N.W.2d 730, 731, 734 (Minn. 1980)). Two of these elements will usually fail whenever there is an ambiguous instrument: The instrument already expresses (if inartfully) the real intentions of the parties, and rarely will there be evidence that the ambiguous description was due to any particular person's mistake. Requiring dominant estate owners (such as respondents) to prove a case by clear and convincing evidence is particularly troublesome considering that it is generally the servient estate owner (such as appellant) who must R "sL eliminate ambiguity does not require the same burden of proof as a "reformation" of the instrument. See 66 Am. Jur. 2d Reformation of Instruments g 6 (1973). Reformation implies that a party has substantive rights not properly expressed in the instrument (in fact inconsistent with the instrument) . Construction of an instrument only finds rights already expressed in the instrument. Because clear and convincing evidence should not be required to construe an ambiguous term, it follows that a factfinder need only find evidence or reason to support its construction and those determination:; should not be disturbed on appeal unless they are contrary to reason or the evidence. See Transport Indem. Co. v. Dahlen Transp. Inc., 281 Minn. 253, 259 ®60, 161 N.W.2d 546, 550 (1968). B. AppI.ication of the law. Applying this law, the referee determined that the easement was ambiguous both in terms of location and scope. Appellant argues that the easement is not ambiguous as to scope. Appellant distinguishes the cited cases by suggesting that while each of the easements in those cases provides access to a body of water, the easement in this case provides access to a location which describes the exact activity to be performed there. cz_*c (� S "Bathing beach," contends appellant, necessarily means that respondents may only bathe on (or from) the beach. No case could be found defining the term "bathing beach," no definition is found in Words and Phrases, and no definition could be found in any contemporary or 1940s dictionary or lexicon. Several sources define "beach" as the stretch of land located between the high and low water marks, see, e.g., State v. Phillips, 400 A.2d 299 (Del. 1979), but appellant has not shown what effect the adjective "bathing" has on the noun "beach." To take appellant's argument on its face would mean that respondents should be limited to using a five -foot stretch of sand between Christmas Lake's high and low water marks. Such a construction seems unnatural and unreasonable. "Bathing beach" is ambiguous as a matter of law. The referee was proper in admitting extrinsic evidence of the original intent of the easement. In respondents' favor was the following evidence: ® gust before the lot was sold, it was part of a resort lodge where general recreational activities took place. ® Contemporary photographs showed a small boat dock. ® The Radisson Inn Addition residents had an annual Fourth of July picnic on Lot 11-and used the barbecue pit. One of the residents mowed Lot 11 and kept a small fish house near the shore. ® The original Lot 11 grantee used the property sparingly. In appellant's favor was the following evidence: • With the exception of the above activities, the lot was used sparingly except for swimming. • The cottages had no shower facilities and residents would use the beach to bathe. -9- --S_S This is sufficient credible evidence to support the construction. Because such findings should be upheld unless manifestly contrary to the evidence, the referee and trial court are affirmed as to the scope of the easement. For these same reasons, the referee had the authority to determine the size of the "bathing beach." The evidence showed that all of the recreational activities took place in the area designated by the referee and that the designated area would be required to continue those activities. Sixty percent of the lot would remain free for appellant's own use. 111. Eighteen docks on a beach. Approximately eighteen lot owners are benefitted by the Lot 11 easement. Appellant contends that the language of the trial court order would allow each of those owners to build individual docks on the beach. Because the allowable number of docks on a beach is limited by Shorewood ordinance, appellant argues, the language of the easement is illegal and unenforceable. Appellant's argument fails for lack of proof. The ordinances themselves were not presented at trial or on appeal. In addition, there is nothing in the trial court order which purports to supersede any applicable local law on the subject. If eighteen docks are indeed illegal, appellant will have appropriate remedies available to enjoin the construction of the eighteenth dock when that time comes. Affirmed® ®10® STATE OF MINNESOTA For an Order Construing an Easement --------------------------------------------------- I ----- - - - -- The above - entitled matter came on for a hearing before the Honorable Henry W. McCarr, District Court Judge, at C -1553 Hennepin County Government Center, Minneapolis, Minnesota, on April 27, 1992, upon Petitioner's motion to reject the report of the Examiner. Respondents' Paul and Patrice Aubrecht moved to modify the report of the Examiner. Respondents' Larson, et. al., moved to approve the report of the Examiner. Ronald H. Groth, Esq., appeared for and on behalf of the Petitioner. Thomas L. Owens, Esq., appeared for and on behalf of the Respondents Larson, et. al. Paul Q. Aubrecht appeared pro se and on behalf of Patrice M. Aubrecht. %) - -4 � The Court, having heard the arguments of counsel and having read and considered the submitted briefs, and based upon all the files, records, trial exhibits, and proceedings herein, IT I3 HEREBY ORDERED: 1. Petitioner's motion to reject the report of the Examiner is in all respects denied. 2. Respondents' Paul and Patrice Aubrecht's motion to modify the report of the Examiner is denied. 3. Respondents' Larson, et. al. motion to approve the report of the Examiner is granted and the Final Report of the Examiner is adopted in full. 4. The attached memorandum is incorporated herein and made a part of this Order. DATED: May , 1992. —�# BY THE COURT: Henry W. Mccarr District Court Judge Page -2 5/14/92 (�l�y • . I I 18 i - Petitioner is the owner of Lot 11, Radisson Inn Addition, on Christmas Lake, Hennepin County, Minnesota. The lot is subject to an easement which appears on the Certificate of Title as follows: and Subject to an easement over and upon said lot, existing in favor of all of the lot owners in Radisson Inn Addition, for the purpose of ingress and a Tess to the bathing beach adjoining the said lot, as shown in Document Nos. 152261 and 163421, Files of the Registrar of Titles. (Emphasis supplied). Subject to an easement over and upon Lot 11, said addition, for the purpose of ingress and egress to the bathing beach adjoining said Lot 11, as shown on Document No. 152262, Files of the Registrar of Titles. (Emphasis supplied). Lot 11 and the accompaning easement were registered in Torrens Case No. 4829 and the decree of Registration was entered on November 9, 1939. Petitioner brought this action to locate the access easement and define the activities that the easement; holders may conduct on the "bathing beach ". On stipulation the District Court referred this; action to the Examiner of Titles who appointed Richard S. Little, Deputy Examiner of Titles, as Referee. A trial was held on April 10 and April 11, 1991, with testimony and exhibits submitted by all parties. Pa a ®3 4, y S Page-3 5/14/92 Ronald H. Groth represented the Petitioner at trial. Thomas L. Owens represented the approximately 28 other lot owners. The Aubrechts appeared pro se but hired S)pencer G. Kluegel, Esq., for post -trial briefs. The Referee made his initial "Report of Examiner Including Findings of Fact, Suggested Conclusions of Law, Recommended Order and Memeorandum" on September 5, 1991. Petitioner moved to amend the findings which motion was presented to the Referee on September 20, 1991. The Referee returned his "Report of Examiner Pursuant to Notice of Motion and Motion re Amended Findings and Order" on January 9, 1992. A survey was completed pursuant to the January Report and the Referee issued the final Report on March 9, 1992. The facts of this case have been briefed and repeated numerous times so this Court will not reiterate them here. The positions of the parties are basically as follows. Respondents Paul and Patrice Aubrecht (Aubrechts) position as explained in their post -trial brief is that the ingress /egress portion of the easement covers the whole of Lot 11, thus making it impossible for the owner of the lot to construct a house on the property. The Aubrechts contend that the beneficiaries of the easement can use the easement for "swimming, picnicing, barbecuing and other transitory recreational activities which do not leave their mark upon the land." See Reply Brief of Defendants Paul Q. Aubrecht and �S, 4 Page -4 5/14/92 Patrice H. Aubrecht p. S. Finally, the Aubrechts argue that the easement does not include the erection of a dock or the mooring of boats or the storage of boats on Lot 11. Id. p. 9. The Respondents Larson, et. al., (Larson) argue that the ingress /egress portion of the easement covers only part of Lot 11 and only needs to be placed and its size and scope defined. Respondents Larson claim that the easement for the "bathing beach" extends to include a concrete and dirt path and a barbecue pit. Respondents Larson also claim that the easement includes the right to install and maintain a dock for the benefit of the holders of the easement. The Petitioner basically agrees with the Respondents Larson, in maintaining that the ingress /egress easement is limited to a small swath of land for access to the "bathing beach ". However, Petitioner argues that the easement only allows bathing once the beach is accessed, and does not include any other activities such as building a dock or barbecuing. Petitioner additionally claims that the location of the "bathing beach" only extends to the high water mark of the lake, or the sandy portion of the beach. The Referee found the easement to be ambiguous. He then defined the ingress /egress portion of the easement to a 10 foot wide strip of land over the easterly side of the property. The Referee located the "bathing beach" area across the the entire shoreline, extending it up to the area pr --/-{ 7 Page -5 5/14/92 including the barbecue pit. Finally, the Referee specifically allowed the installation and maintenance of a dock and other structures for the mooring of boats by the easement holders. The Minnesota Rules of Civil Procedure specify that the court "shall accept the referee's findings of fact unless clearly erroneous." MRCP R 53.05 (b). The Rule goes on to say that "[A)fter a hearing, the court may adopt the report, modify it, reject it in whole.or in part, receive further evidence, or recommit it with instructions." Id. Rule 53.05(x) provides that the referee shall file the report in an action to be tried without a jury and shall file with it a transcript of the proceedings, the evidence, and the exhibits unless the order of reference otherwise directs. The Order of Reference in this proceeding specifically provided that the referee was not to file a transcript or exhibits unless the moving party bears the expense. Neither the Petitioner nor the Respondents chose to supply a copy of the transcript. This Court specifically adopts the "Final Report of Examiner Including Findings of Fact, Suggested Conclusions of Law, Recomended Order and Memorandum ". It is apparent from a simple reading of the language of the original easement that it is ambiguous. The Referee's structuring and defining of the easement is not clearly erroneous. A ten foot access easement to the "bathing N r e4s Page-6 5/14/92 beach ", as established by the Referee, is adequate access to the beach, while causing minimal interference with the underlying fee. In Farnes v. Lane, 281 Minn. 222, 161 N.W.2d 297 (1968), The grantee of an easement or right -of -way to the lake may or may not be entitled to install and use a dock extending from the way into the lake, depending on the circumstances of the particular case. If the easement is granted in terms which clearly and specifically allow or deny this use, the language of the instrument creating the right will control. Where, as here, the easement for a way is granted in general terms, no reference being made to the installation or use of a dock, the uncertainty must be resolved by applying the general principals of law relating to the contruction of ambiguous writings. Fa nes, 281 Minn. 222, 225, 161 N.W.2d 297, 300 (19(38). From the record provided to this Court the Referee was not clearly erroneous in allowing the installation and maintenance of a dock by the easement holders. Finally, this Court finds that the Referee was not clearly erroneous in his placement of the "bathing beach" and in his interpretation of the nature and scope of the easement use. H.W.M. Page -7 5/14/92 TN PROCEEDINGS' SUBSEQUENT TO TNTTTAL REGISTRATION OF LAND NO. A -24774 STATE OF MINNESOTA RETURN 00— 'PiENTS T0; DTSTRTCT CURT : COT:1N'ry Off+' HE,NNEPTN ATI T'�lc, `Mvnny 2k:;;i U- 1.er;:ity Avenue West FOURTH St JfTDTCTA�, DTSTRTCDISTRISt-Paul, MN 551'1A CASE TYP8 : ' OTHER CIVIL In the Matter'of the Petition of . Court. File No, TO 000024774 ROY EU'GFNE .A�EERN, ,petitioner, LARSON,_ET AL.; and PAUL Q. � ORDER ACJBRECHT: and PATRICE M. AUBRECHT, ) LED Respondents, > I JUN 0. .3 1998 For an Order Construing an j �!1lN. , p CT' Basement. By Order- and Memorandum- dated. May ..14, 19921 the District Court 'confirmed Wand adopted in full''.the Final Report, of Examiner Including Findings' of Fact, Suggested 'Concl.usions of Law and Recommended Order dated* March 2, .1992. Petitioner appealed said Order, and in an Unpublished Opinion filed March 16, 1993, Case No. C5-92-1207, the Minnesota Court of Appeals affirmed said Order. By 'subsequent, Order dated May. 18, 199J, the Minnesota" Supreme Court denied the petition of Petitioner for further review. Based on all of the files, records-and proceedings herein, TT.Is HEREBY ORDERED: 1• That the' '.easement appearing in two- recitals on Certificate.. of Title No. 658856 describing an easement for "ingress and egress to the bathing beach adjoining Lot 11n as shown in Document Nos. 152261' 16342, and x.52262 is reformed to .read as.follows and the.Registrar of Titles upon the filing with ham of a certified copy Of -this Order and a certified copy ®f the . Plat of survey definiixg said easement area, shave by memorial on Certificate of V tle.No-. 658856 that the easement is-reformed to read as follows: Subject to and together with an easement as defamed in Plat of 'survey filed in Torrens Case .No. A- 24774, a certified copy of which is filed as .Document No. (A (here`insert the document number assigned P� to the. Certified copy of the plat of survey); for access to the beach area, the use .of 'the beach :area', Q0 rand 'for..,' construction, maintenance and use o d ®cis J `• to •�n extending from, the shore . line of Lot 11 into-• Christmas • Y vA o8 go P Lake-and general recreational purposes associated with, 3 M the use of the.-.beach area .and' dock for the benefit of o N lands described in order Document No. 'Q •D (here insert the document number assigned to this tit ,J .tn r Order), over that part of Lot 11 determined . in I'orrens Case No. A- 24774, and described Court. Order Document ,T ° • ��.. n No. -- (here ' insert the .document number ,J G 6, assigned to the Order). U 2. That* the Registrar of Titles upon, the filing with him of a certified copy 'of. this Order' and a certified copy of the PdM 2 13 tr 1 plat of survey clefining said easement area show by memorial upon Q J Certificate of Title Nos. �3., 469590, 741'17, if s 2 532741, .624432 ,� 688083, 677640 251341, 541755, 316602, 718384, 499357; 660100, 620004 - 1?5' , and8a or' any successor Certificate ,,issued for the land described. in said C ®rtificate, that the easement over Lot 11 appearing as a•.:recital is reformed as follows: Together with an easement as defined in plat of survey filed in Torrens Case No. 1.1- 247.74, a certified copy-of which is filed as Document No. (here insert' the -document number assigned to the certified copy of the plat of • survey) , for access to the beach arE'a, for the use, of the , beach area, and for construction, maintenance and' use of dock extending :'from the shore lane of Lot 1I into Christmas sake and. general recreational purposes. associated with the us.•e of the beach, area and dock for the benefit of ]ands described. in Order Document No. (kiere .insert the document number assigned to this - Order) over, that part of Lot .11 determined in Torrens Case No. 24774, and described in Court Order document X70. (here insert the document number assigned to the Order).. 3. That in future Certificates of Title entered for Lot 11, and the.land described in'the other Certificates of Title lasted at Paragraph 2 'of this Order above, the Registrar of 'Titles omit the- recitals now appearing on the current Certificates and in lieu thereof, place in said future. Certificates of TiL1e the 3 recital as seq. fOrth in Paragraph 2 Or Paragraph 2 move, as aPPrO$ r a`®, and that he omit also the memorial of this order. 'By TI-TE COURT: District Couru Uudge D ury Mxamini:x, off. i�'cles ire forngofng faeft were found by me after due hearing and %0Mry of $bts Order is . t We itiCHAR15 5a LITTLE F FEE ' - ep�:'� ia�� of �t� .. • �a J JU m on C it a!'iiUes ' 8Y ` �• ar V4 Woo, Cow • •�.� my ate, _ • d LAI—q- Registrar of Titles, Hennepin,,MN � Date Filed. 06/05/1 04:00 PM As Doe #: 3042 .43.0 On CT #e 658856.0, 741717°0, 861089.0. i - a v I V. f.� I� BgA66�fev 10' 01 iA izf 4 poi J � � z P Tlwt Part d Ld 11, Rad�aicn IM Addtlbn, vi+kn gN Easterly and Iou7ge� at � daecHbad Zl Bopmyp a nN M4steedlon a B» NenMny t4f0 a 6ouhary nom sad Namtry Cne. pa /a1N f t h, and dwtrrd 10 of Of lha EatiNly krva d uW Lot Ili therwo SoNlrofy abrq sdtl Pat" ern a 36 hat pad Drat ..Mg South 0 degrees, 69 meow, 33 to thence South 64.68"". 44 MWYA#, 11 tawnde Wont o d'su irA d 110.11 Wes 91A of cad Lot 11 and cad the Uwe temanatng. SURVEY FOR: ._HAW sFFFNy, DESCRIPTION; Lot 11, Radiseon Inn Addition, a..ording to the recorded plat thereof, Hennepin County, Minnesota. 1 hereby certify that this survey was prepared by Me or under my direct supervislon and that I am a duly Registered Land Surveyor under the laws of the State of Ml nine aot I. Oated this 26th day of Septe$L or. 1991. E O A N, F I E L J & N 0 w A k f t D / Surve/yoo a by / Jack Bolke Minnesota License No. 20281 NOTES: I. Thl drlantatl0n of this bearing 9yetda Is based On the north 11ne Of lot 31. RAOIBSON INN ADOSTION, which 15 09avaed t0 hevo a bnarfn0 Of North 75 door#$$ 19 minutes 46 seconds East. S't< Date: April 24, 2016 'r iii )i)r To: Shorewood Planning Commission From: Elaine Hastings 952.474.7336 5495 Radisson Entrance Shorewood, MN 55331 Subject: Lot 11 Easement Owners "Restricted" Watercraft Appeal Thank you for your prompt review of this note from my family and thanks also for your volunteer service on the Planning Commission. For over 45 years we have lived on Radisson Entrance and have used and enjoyed our "deeded lalze access" to Christmas Lake, via Lot 11 of Radisson hm Addition. First my kids and later the grandchildren have enjoyed many wonderful days on the lake. In the early 1990's all Lot 11 private easement owners, 14 households total, successfully achieved court victories and clarification specific to defining the easement access and the recreational uses on the lake and on our easement property. With this new clarification we believed that the approved number of "restricted" watercraft moored on our shared dock was 4, a number easement owners have always worked with, the same number as that of a single family Christmas Lake household. Imagine the surprise for all of us longstanding neighbors with over 70 years of easement owner history to be now told that only 2 moored boats are allowed. This seems restrictive, arbitrary and grossly unfair. Therefore, we support the neighborhood appeal and urge the commission to act, fixing on the correct number of "restricted" moored boats to be 4. In this appeal process my household was not officially notified, in fact we have never been officially notified of any proposed actions specific to Lot 11, even though we have a deeded property interest to Lot 11. Upon investigation we learned that property owner's within 500 feet were to be notified and yet myself and four other easement owners, most living more that two /three blocks away from Lot 11, a distance greater than 500 feet, were not notified, This again shows that Shorewood regulations do not properly address our unique situation and should be changed. In closing, I wish to direct you to our website, Lotl l .org, and review the document entitled. "Easement Owner's FAQ's, Frequently Asked Questions ", which will provide additional history specific to boats and boating on Lot 11. Again, thank you for your careful consideration to this appeal. Sincerely, Elaine Hastings ATTACHMENT IV Resident Correspondence Paula Callies 20465 Radisson Inn Road Shorewood, MN 55331 RE: Lot 11 Dock Expansion Dear Paula, We recently received a copy of your letter to Brad Nielsen regarding expansion of the use of the dock on Lot 11. We would like to express our disappointment in the fact that we are constantly ignored as an easement holder (per Hennepin District Court and State of Minnesota Court of Appeals as Lot 699236), and told that we "have no interest ". We respectfully request to be included in all future correspondence or meetings related to Lot 11. It seams to be the neighborly thing to do. In the future if we are successful in our request to expand the use of the docks on Lot 11 to four boats, or for that matter even if expansion is not allowed, we wish to be included in the lottery or whatever means agreed acceptable to the parties to determine who has rights to keep a boat on the Lot 11 dock. I assume you have an email group for Lot 11. Please forward this to the rest of the easement holders as we have not been given access to this email group. Thank you for including us in the future. Paul and Suzy Cossette 5570 Shore Rd Shorewood, MN. 55331 Pandscossette @gmail.com Cc: Paula Callies & David Downs Eric and Barb Newhouse Gary Krebs & Nancy Wellner Todd & Melissa Nichols Elaine Hastings Steve and Jessie Berchild Edna & Cyrus Zulgad Michael & Janet Cohen Paul & Carol Seifert 20465 Radisson Inn Road 20445 Radisson Inn Road 20555 Radisson Inn Road 20780 Radisson Inn Road 5495 Radisson Entrance 20435 Radisson Inn Road 20505 Radisson Inn Road 20640 Radisson Inn Road 5515 Radisson Entrance Road i April 25, 2016 Brad Nielsen Planning Director City of Shorewood 5755 Country Club Road Shorewood, MN 55331 RE: Zoning Determination — Lot 11, Radisson Inn Addition Dear Brad; We recently received notice of hearing to address the APPEAL OF ZONING DETERMINATION —LOT 11, RADISSON INN ADDITION submitted by Paula Callies. My wife Leslie and I own the property at 20545 Radisson Inn Road; Lot 9. We are also legal easement owners over part of Lot 11 per Hennepin District Court Ruling No. A -24774 and the Minnesota Court of Appeals Decision C5 -92 -1201, and use this easement to access the lake. Our property is adjacent to Lot 11 and sits immediately to the north of Lot 11. Any decision to add additional motor boats would significantly impact our sight lines and our use and enjoyment of the easement rights as we understand them. As background, we owned Lot 11 from 1999 through May of last year (15+ years). For the entire term of our ownership of Lot 11, only two motorized boats were ever moored on the dock at Lot 11, and one of them belonged to us. While nothing was ever put in writing, it was accepted that the owner of Lot 11 would be allowed to keep one motorized boat at the dock, and the easement owners would share the other "slip ". As neighbors and easement holders, we strongly object to any increase in the number of boats that can be moored at the Lot 11. We agree with your original ruling and support rejection of the Appeal referenced above. Please forward our objections to the Planning Commission members prior to the May Yd meeting. Sigcorely, Mich.aaWiIle � \1 20545 Radisson Inn Road Shorewood, MN 55331 MJWille @cbburnet.com 612 - 924 -7122 Hennepin County Property MapMinneanoilsdA PARCEL ID: 3611723220012 OWNER NAME: W D Hittler & Donna M Watz PARCELADDRESS: 5540 Shore Rd, Shorewood MN 55331 PROPERTY TYPE: Vacant Land - Lakeshore HOMESTEAD: Non - Homestead PARCEL AREA: 0.37 acres, 16,129 sq ft A -T B: Torrens MARKET VALUE: $252,000 TAX TOTAL: $4,214.10 SALE PRICE: $340,000 SALE DATA: 05/2015 SALE CODE: Vacant Land 0 Operated by a subsidiary of NRT L.LC. Comments: This data (I) is furnished AS IS' with no representation as to completeness or accuracy; (il) is furnished with no warranty of any kind; and (iii) is notsuitable for legal, engineering or surveying purposes. Hennepin County shall not be liable forany damage, injury or loss resulting from this data. COPYRIGHT © HENNEPIN COUNTY 2016 Patti Helgesen From: Aubrecht, Patrice [patrice.aubrecht @siemens.com] Sent: Tuesday, April 26, 2016 8:21 AM To: Brad Nielsen; Planning Cc: 'Home' Subject: Zoning Determination - Lot 11 Radisson Inn Addition Attachments: CityAttornyToJudge.1.pdf; AttorneyToJudge.2.pdf Dear Brad and Planning Commission, I was surprised by the letter of "Public Hearing for Appeal of Decision Regarding Boat Dockage on Lot 11" for May 3`d in yesterday's post. This is the first we have been informed of any such proceedings by just a few of the Lot 11 Easement owners which had clearly been initiated back on Jan 5th. As you know we own lots 12 and 13 which borders lot 11 on the west and have the same easement rights over lot 11 as well. We maintain our own dock and boat in front of our property, but our family have spent many joyful hours sitting and swimming off the lot 11 dock with many of the neighbors over the past 31 years. We feel the status quo during the time we have lived next door to lot 11 is that only one dock, two motor boats stored on dock, one canoe stored on land, the 4 new chairs, with no additional recreational equipment, watercraft, or structures be allowed until a dwelling occupied by a resident is built on lot 11. We agree with your decision that the maximum number of boats should remain at 2 based on the following: - this is what we have personally witnessed over the 31 years of living next door to lot 11, neither have we ever seen a picture prior to this where more than 2 boats were tied to the dock, - the city's position as long as we have been here is the dock is grandfathered in and allowed as a legal nonconforming use because there is no "house or residence" associated with Lot 11 and the city has repeated stated to us that only 2 boats are allowed, - the ordinances themselves were not presented at trial or on appeal, in addition, there is nothing in the trial court order which purports to supersede any applicable local law on the subject, and the City Attorney in 1992 requested in the attached letter (2 pages) that the Court take notice of the City of Shorewood Code of Ordinances, - we are not aware of any other family who resides on Christmas Lake that has boats registered to someone other than the property owner. Nor are we aware of anyone having 4 motor boats with a few exceptions of families that own a pair of ski jets (personal water crafts) in addition to their power boat. Further, it is my understanding: "Residence" means the place where you are actually living. There are currently no legal residents of the property as there is no fixed or permanent home /dwelling on lot 11. A legal resident would preside at that address and occupy a dwelling. The Shoreline Regulations for Shorewood clearly states: "the owner of the dock must demonstrate to the city that all boats stored at the dock are owned, registered and operated by the residents of the property" "the number of docks per lot ...shall be limited to one, and the same shall be operated, used and maintained solely for the use of the members of the family or families occupying the property" The LMCD regulation is applicable: Subd. 2: Unless a greater number is allowed by the 1:50' General Rule, up to two restricted watercraft may be moored or docked at any dock or mooring facility on a residential site in existence on August 30, 1978; without regard to the owners being residents of the site; or Subd. 3 (a -c): Unless a greater number is allowed by the 1:50' General Rule, up to four restricted watercraft may be moored or docked at a dock or mooring area at a site, provided a number of conditions are met. One of these conditions includes all restricted watercraft must be owned by and registered to persons who live in the one residential structure on the site. And in the "Memorandum Regarding Rulings of Petitioner's Motion To Amend Findings and Conclusions of Law" it clearly states: "All of the 18 owners who interposed answers in this proceeding and who therefore have easement rights upon Lot 11 are subject to applicable federal, state, and local laws and ordinances including any laws of the City of Shorewood regulating the number of docks and boat slips and boats which can be moored on said docks... such rights are subject to regulation and limitation by the appropriate governing bodies." Personally, we believe Shorewood's current position and restriction of a "single family approach" to be very generous, since only a single family actually owns the property but does not reside there as residents. Yet, Shorewood has "grandfathered" and allowed 2 boats registered by the Property and one Easement Owner to be stored on a single dock. This leads me to wonder if the attempt to challenge as a legal conclusion the City's current position should result in further limitations since the intent of the city should be that all nonconforming uses eventually be brought into conformity and not be expanded. If expansion is allowed, I can only guess it will not be long before the issue of a larger dock to accommodate all these boats along with boat lifts will become the next expansion. The current dock is not big enough to support 4 boats, there would not be enough space left for normal recreational activities off the dock that the majority of homeowners including myself enjoy, such as sitting with legs hanging into water, diving and swimming off the dock. In my opinion, it would be a hazard for the young swimmers. A dock big enough to support four motor boats would not meet the LMCD DUA Length and Width for the Lot 11 property. As you can see the 9 Appeal Applicants, does not represent the majority of Lot 11 Easement owners which based on the Report of Examiner Pursuant To Notice Of Motion and Motion Re Amended Findings and Orders, it appears there are 18 Easement Titles, not just 13. Some owners have multiple titles. Conveniently missing from Paul Seifert' list of Lot 11 Easement Owners are the following property titles who have never been invited to his Lot 11 meetings: Title 699236 Paul and Suzy Cossette Title 251341 Aaron and Nicola Peterson Title 541755 Becky and John Brink Title 316602 John and Mary Schmitt's now owned by Doug and Sheila Punke? These above properties owners are similar to us in that they own their own lakeshore as well. Also, 3 of the 9 applicants (Callies /Downs, Berchild, and Newhouse) listed in the Appeal are a result of just one original Steve Larson property title being subdivided. In the past, several easement owners have jointly purchased a common boat to share and the other boat has been typically owned by the property owner. My understanding is the issue is being brought up now, because Berchild and Newhouse own their own boats and would like an opportunity to moor their boats at the dock as well. When they enquired if easement owners took turns at docking a boat at a meeting, the current owners of the shared boat were not willing to take turns, thus they are pursuing a change in the zoning for lot 11 to accommodate the newcomers in the neighborhood. The fact that the "Lot 11 Homeowners Association" failed to notify all 18 of the Lot 11 Easement owners of Paula's letter to the City of Shorewood to request a formal determination on the maximum boats, along with filing an appeal after your determination, is disturbing to many of us. Lack of communication and notice on the part of the appellants intent to change the rules, clearly indicates that not all easement owners agree with their position. I believe Bill and Donna, the owners of the Lot 11 property just recently found out about these attempts to change the zoning determination. Clearly with this type of disagreement among the Lot 11 Easement Owners concerning their rights, and the issue of who gets to use the existing dock to moor their boat in the future will be a difficult decision for the 18 property owners regardless of whether it is 2 or 4. BTW, I have as much right to keep my boat on that dock as anyone else and simply have not exercised that right yet. Looking to the future, how will the City handle the issue when Bill and Donna decide to combine their lots? Now there will be a homeowner residing on the property and shouldn't all boats should be registered under their name? Will another exception be allowed for Lot 11? If these appellants are to have the same dock uses as any Christmas Lake owner who resides on their lake property and enjoy the same recreational activities, then I can only assume the appealants property taxes will reflect similar taxes being paid by those of us who actually reside on Christmas Lake. Paul and I feel living next to a Marina will lower our own property value. Thank you for your consideration in this matter, Patrice and Paul Aubrecht 20575 Radisson Road (Lots 12 & 13) R Siemens Industry Inc Energy Management Division Digital Grid Solutions and Services 10900 Wayzata Boulevard, Suite 400 Minnetonka, MN 55305 USA Mobile (preferred): +1 (612) 308 -5950 Office: + 1 (952) 607 -2739 Fax: +1 (952) 607 -2354 mailto: Patrice.Aubrecht @siemens.com http:Hwww. siemens. com This message and any attachments are solely for the use of intended recipients. The information contained herein may include trade secrets, protected health or personal information, privileged or otherwise confidential information. Unauthorized review, forwarding, printing, copying, distributing, or using such information is strictly prohibited and may be unlawful. If you are not an intended recipient, you are hereby notified that you received this email in error, and that any review, dissemination, distribution or copying of this email and any attachment is strictly prohibited. If you have received this email in error, please contact the sender and delete the message and any attachment from your system. Thank you for your cooperation F JAM44 P 4AA8I14 . A08CATL.HQFFMAN JACX F OALY - O. xtHNiTM LIMOpRCN Ota.gO u FRI C"C". AILAN a, MUlL14AN .tAmti C. CRICMSON 6VwAAO 4, ORIfC066. "N[ M. tULLEX JOMM 0 FV4L+*CA RgaclTr C. aon.t PRANK I.HARYtr CHARLia 3. NOOtw. CHRIaTOPMCM d. 014TatH JOHN R. 4, CATTIC - yINQA H, FIaMtA TM,OMA6 P STOLTYAN MIC11A194 a. JACKAA#4 ./qMH C. OICHL JOM 0, SWICRIK"S"L TMOMA6 J. FLYNM JANc4 A QUINN TOgd I, FACCMAN PC, cm w aeaN I16RQM4 M, KAMNx6 aMCAR14L A. OMAN gC*A40 L_ iKeK JOHN A. yUNaGU)aT AAYL6 NQLAN Gl 49ATC• JHOMA4 6, HYMPHALY, JR. MICMAC, t MexIM JOHN A, GOTTCA• SCATR166 A, AQTHV/tILBR (June 41 1992 FILE COPY �J;lRIiIi�i. HoFFNI.4N. LI:tDGREN. LTD. RAULA,PLVMxSTT ALAN L. KILOOW ATT41R N CY9 AT t.AW KATHLCCN M. NCwMAN HICHA. 6•*6rV4,M '� ORt00AY 9. xOAATAO y% t., 15 4 t OAAY A. YAH ;LCVC' OANICL L aow-.0 - 13CO NORWC5Y FtNAN41AL eCN7CR It TOGO M. VLATMOVICM - IIMO,004.:CMAXV' CANC 7000 XCRXCS AVCHUC SOUTH BLOOMINGTON. MINNCIOTA 9M431 TI NOr Mr J. a ONMA 4, AOlACM MICHAiL A- 11060"SOM TCLCPHONC 115171 ®38.3804. - LISA A. 9., OawT A. RCM"04C FAX t*121 8963333 1141" Mom & x"AMaRltmi 4MRIATO /NtA J, N.R41%TMAL WILLIAM C. OAIFFITN­ dM. JOMM 4. STCFrCNHABCN . OAWL W. yoga RADA A. AVOOK _.... a MILL The Honorable Henry W. McCarr District Court; Judge 1251 Court Tower Hennepin County Government Center Minneapolis, Minnesota 55487 Res Ahern v. Larson, et al. Court File No-; A -24774 Dear Jitdge XcCarr: This letter is offered in my capacity as City Attorney for the City of Shorewood. It has been brought -to my attention that an Order and Memorandum has been issued in the above - referenced matter. •That Order adopted the "Final Report cif•. ami r including Findings of Fact, Suggested Conclusions of Law,* Recommended Order and Memorandum" (the Report). The Report in its Suggested Conclusions of Law provided;. 4, Evidence'and testimony, at the hearing established the intent of the parties creating the easement and intent of the parties in whose favor it rums that the installation and maintenance of a dock and ether structures for the mooring of boats was and is an intended and permitted use under the easement. This letter is to request that the Court take notice of the City of Shorewood Cade of ordinances, Section 1201.03, Subd. 14, subparts b And e, which provide; b. Docks and wharves, permitted or floating, shall not be built, used or occupied sin land located within the R Districts until the principal dwelling is constructed on said lot ar- parcal, or until four-fifths (4 /5ths) approval of the City Council has been first obtained to use, build, or occupy such dock or Wharf. k M HoFr. x_,,N, DALY c� I I� "DGEE�� LTD. The Honorable Henry Wo McCarr June 4, 1992 P a� C. The number of docks and wharves per lot Or parcel of land in the A Districts shall be limited to one, and the same shall be operated, used and maintained solely for use of members of the family or families occupying said property upon which the dock is located; provided, however, the dock may be used in accordance with the authority granted through four -fifths (4 /5ths) approval of the City Council in those cases where the dock is, located on an easement or strip or parcel of land riot suitably: for construction of a residence or use as a residence. The City of Shorewood brings to the attention of this Court the following concerns with the Order in this matter. First, any rights in favor of individual property owners granted by the order are subject to the previsions of the City of Shorewood Code of ordinances- Second, I believe that the language of Part 4 of the Order -does create now ambiguities in that the benefitted parties to the easement could argue that each party is entitled to the maintenance of a separate dock under the easement. This interpretation would clearly give rise to a conflict with the provisions of the Shorewood City Code of Ordinances. Thank you for consideration of the concerns of the City of Shorewood in this matter. Should you have any queotions, please contact me at $96 -3203. Sincerely, ;Timothy IN, FFMAN, DALY & LINDGREN, L td. kW cc: 'Brad Nielsen, Shorewood Planning Director Ronald H. Groth, Esq. TJK:HY2s Subject: Christmas Lake, Lot 11 Easement Owner's Appeal Thank you for your active interest in understanding the uniqueness of our private easement to Christmas Lake, formally defined as Lot 11 of the Radisson I= Addition Properties. We appreciate your active involvement in order to bring the easement owners in "permanent alignment" with the regulations of the City of Shorewood and to concurrently honor and align easement owners with their favorable decisions earned in the District and Appellate courts. Finally, thank you for your Planning Commission Service to our city. To begin a brief history is appropriate... all dates approximate and rounded to nearest year. • Lot 11 was originally and legally defined and plotted in 1940, a full 16 years before the founding of the City of Shorewood, and represented the first "lake easement for individual property owners" in the state of Minnesota. This community originally consisted of over 30 residential homes and R1 plotted building lots, designed to give existing and future residents of Radisson Inn Addition access to Christmas Lake, via a 15,000 square foot lot, (Lot 11), with — 120 feet of Christmas Lake shoreline. Pictures from this early period show on Lot 11 a common, shared dock and a lake slide as well as boats on the property. • Concurrent with the formation of this easement, Lot 11 was sold for the sum of $1 to the nearest neighbor, Joe Hayes, (copy of deed attached), clearly signaling all involved that this lot was defined and specific to the deeded recreational uses for "easement owners" and had little or nothing to do with property ownership. The concept here of naming an owner for the easement lot was to give ownership to a community leader who would assume the role of "oversight ", in the easement owner's access to Christmas Lake. Lot 11 remained in the Hayes family, virtually unchanged in square footage and with increasing recreational uses, as property was developed, (new easement owners added), and as technology and lifestyles advanced to add different types of recreational uses; i.e., fishing boats, ski boats, deck boats, pontoons, canoes, small sailing craft, rafts, etc • Early 1980's, Lot 11 was sold by the Hayes family to Ahern, a Deephaven developer, for $13K, a price reflecting a Christmas Lake, lakeshore property encumbered by an easement over the entire lot • Mid to Late 1980's to Early 1990's, Ahern prepares to build a home on Lot 11 and is initially blocked with a "temporary restraining order ". Easement owners met with the City of Shorewood Planning Commission who determined that our neighborhood resolution was the responsibility of the easement owners and not the City of Shorewood. Thus begin 3 years of legal arguments to formally define the property owner and the easement owner's mutual and exclusive rights specific to Lot 11 property and their respective recreational uses. • Early 1990's Easement owners received favorable court decisions, District Court filed in May 1992 with Appellate Court's final decision files in March 1993... court highlights include: - - -the number of easement owners reduced from over 30 to 12, later expanded to our current, 14 owners; the court ruled that if you were not legally represented you did in fact "abandon" your legal easement owner rights -- -the District Court defined new easement boundaries, (see attached Lot 11 drawing, court document 3042144), permanently dedicating approximately 40% of Lot 11, 6,000 square feet, exclusively to easement owners - -- limited boat dockage to a single dock - -- affirmed that the court was proper in admitting extrinsic evidence of the original intent of the easement. (Lot l l .org, shows historical pictures of Lot 11, presented and numbered as specific court exhibits) - -- changed the original 1940 easement description on the deed from, "ingress and egress to the bathing beach ", (arguably the only way lake beaches were used in the 1940's), to add the new easement configuration, (court document No. 3042144 previously referenced and attached) as well as affirming all recreational uses "associated with the beach and dock" (reference court document 3042143 attached) Early 1990's, Ahern abandons all plans for Lot 11 development 1999, Michael and Leslie Wille purchase Lot 11 from Ahern for $70,000 2015, Bill Hittler and Donna Watts purchase Lot 11 from Willie for $200,000 Over the most recent 45 years, one or two easement owners have challenged the boats on Lot 11, sometimes expressing the fear that easement owners want a marina. Historically and without any neighborhood or City of Shorewood control, the number of "restricted" watercraft moored on Lot 11 has never been a problem, with never less than two and rarely more than four. Via consensus, boat owning easement owners chose the number 4, a very conservative number for a community of 14 households, thus matching the same number entitled to a single Christmas Lake property. Who could possibly object? Today we find ourselves in conflict with the regulations of our city, regulations we believe are not applicable or appropriate for our unique easement community. Historically, over the past 45 + years I have lived as an easement owner there has always been a continuous presence of "restricted" watercraft moored to the Lot 11 dock and for 42 of these years I have had both a private and a shared boat moored to this dock. Intermittently during this same period of time the following easement owners have also moored "restrictive" watercraft. They include: Segal, Walker, Hastings, Seifert, Mize, Krebs, Welhner, Maxwell, Wille, Cohen, Smith and Larson. Today, our Lot 11 easement is 76 years old and remains essentially unchanged. What has changed and what will continue to change are the demographics and lifestyles of new easement owners. For the most recent five years two "restricted" watercraft have been moored on the dock. In recent years two new families with younger children have acquired easement properties and both share a long history of boating and want their boats moored on the Lot 11 dock, one immediately and the other perhaps a year or two away. Thank your for your prompt review. Sincerely, J. aul Sjt 55 A&S r E Nance 55331 612.490.1885 cell pseifert @mchsi.com .421 Quit Clolm Deed. Mlikr -Poole Co., MInneapolle, MInn. - I ndIvIduol to Ind)v)dual. Form No. 27 -M Mlanteoto Unitorm Convcyandng Dlanke 193 t), ' - - - -- - -- - — — - _. . 4 0... ��jl� �yYbenCuxe, altade this .............. � ...'...'S................... day of ............... lleaeamlaar ......,,.,....,.......,... Y9............ ................ .......................................... .. bet: eeen ............... Leuia..' lf. e... Q. Rk1. en ... an51.,.I 3; eT. te.,, G9hen� ....hu4band...Rnd „tiv „ife,,. � I of the Coanty of ............................ H.Annepin..... .......,....................and State of tinnesota ............................................................... ............................... . Ha es part .....1B bf the first• part, and ................................. ............John...J........... Y.,,.... t..,.....,.....,..,....,.....,.....,..........,..........,...... ............................... ............... . .............................. . ............ ................................. .............................................. ................ .......................................... ................. . ............... I ............. , o the Cotod o Hennepin .............. ............................and State o tinnesota f f .. ............................... . f...............,...............,........,,....,,.........,,.,,. .............................., parVy. ...... of the second part, i �TTtift>C�)YCi�r That OW said part... i.A. .............of the rst part, in consideration of the sans of and, other good.,, and valuable consideration .................................................................................... ............................... to ....t hem ..................... .............................in hand paid by the said partY. ......... of the sccorut part, the receipt whereof is hereby acknowledged, do ............ hereby Grant, Baro'atn, Qaitolainb, and Convey unto the said part..,y...... of the second, part, ..... 11 l§ .......................heirs and asstgns, Forever, all the tract .,.... or parcel:...., of land lying, and being' in, the County of..................... Re ln1m.pin ................................................... and, State of Afinnesota, described as follows, to -wit: Lot Eleven (11), Radisson Inn Addition, according to the plat thereof on file and of record in the office of the Register of Deeds in and for Hennepin County, Minnesota, subject to a permanent easement over and upon said Lot for the benefit of all of the mvners, their heirs and assigns, of the Lots of said Radisson Inn Addition, for the purpose of ingress and egress to the bathing beach adjoining said Lot Eleven (11), Radisson Inn Addition i I - E4tR11`i< i i j Mo 3)abc atib 10 V)olb lfje rwanxt, Toffether with all the h6reditan3,ents and appurtenances there- auto bclongtng or in anytoise appertaining, to the said part ....V ..... of the second part, ... ..Us ......................heirs and assigns, Forever. 'ItT SCOtimonp SZ14Mot, The said part.....Imbf the first part ha..x.H....Jtereanto sot .....ahe. ir ..................... hand.a.. the day and year first above written. �r7b6l`CSMCC of ....° u ..................... G.y ....................... Louis 11. Cohen rerie °� "ehn ..................................... ............................... 421 i ebtate of AinnegOta, 8B. CountyOf ........................ .....•••..........•••.,....•.. Onthis ................... ... ............................day of .................................................... Af?q.6AAb9.>.......... 19..:kQ..., WOW ate, a Ido, tart',,,, Ylzblio... ... .................... .... ........... .••. .......................... within and for said County, personnlly appeared LOUIS W. COIIEN and IRME COTM, husband and wife, to me known, to be the PeMOMS ....................... ......................desoribed in, and who exeouted the foregoing instrument, .....•...........•......•.••....• ............................. ......I............•...I.•..... ............................and aelcnowledged that .....•......•. t.hoy .............. ,eceouted (See Note) thesame as.......Ah. ..r ........................free art and deed..............,.......•...•.........•......•...•..........•...•...•••.....,..... ....••.•..............•.......• (See Not.) �... •. � ................................ ..... ............................... •.. • •................ •... •.......... Maurice L. Grossman Notarrl PuNio ................ UP.M.4•P.7,Y1 ............ ........................County, Artnn. My commission expires .................. .Auqust...26.th,................ 19....(12.. Note: The blank linen marked "See Note" are for use when the Instrument In executed by an attorney In fact. 1'6 :y .._d Ca z I -• c_ x A 0 hx\ zW z Wa I i ;. .. „:. w ' $X4 H � ;: u u •,F h ' FD t2 O o i ts R i 9x: r C � US c loca 3 0 1'6 :y .._d Ca z I -• c_ x A 0 hx\ zW z Wa I i w ' $X4 ' FD t2 O o i ts R i I T I u .� •0 +i .�. d e ° 0 o 1'6 :y .._d Ca z I -• c_ x A 0 hx\ zW z Wa I i w t2 i ts R i I be e 0 o v 7 L. V� C .o h V fa- i' SCALY P.10` ___. 1� r� o� P e P �z P That Part of Lot it, Radaeon Inn AdMon, which Use Ent" end Souftim y of the follow4p deeedbed @a: Begknag at the hLnWbn of the NorlMdy she of Lot t t with A Wa &NAM SMOM ly hom ISM NorSwh Tra, pareW with and dMard f 0 feet Y"w" of the Eas" a* of said Lot 11; ttwwwe BWlary Wnp ieW paratW 2 a distance of 85 feet (emd POW Wa beedhg Boffin 9 "VOW 69 mkeaea, 33 oonds Email; jC1'O 10" .. �G tlwro. soon 61 Geyer. M mows, t t aewnde w.el a astanc. of t taeo.1e feel to did `N V" ika of NW Lot 11 ud aW she then whuhmung SURVEY FOR: ._f.+—IEFEH]_ DESCRIPTION: Lot 11, Radisaon Inn Addition, — 01dI19 to the recorded plat thereof. Hennapin County. Minnesota. I hereby Certify that this survey was p ^eparcd by to or under my direct supervision and that I am a duly Raglstered Land Surveyor under the laws of the State of Ml nneso G a. Dated this 26th day of September, 1991. E O A N, F I E L J 6 N O W a K, I V C. Surveyor' by JacK So lice Hlnne9ote License No, 202B1 NOTES: I. The orientation of this bearing system is based on the north ]foe of Lot It. MDISSON INN A0017 10N. which is assumed to nevo a bearing of North 75 degrees 19 minutes 46 Seconds East. . ... _. ._._. . -- "_ ------- _....._..._ .... u.......,...... ,.. .............. rr .nru.Wranr.. .6 r t '0• ___. 1� r� o� P e P �z P That Part of Lot it, Radaeon Inn AdMon, which Use Ent" end Souftim y of the follow4p deeedbed @a: Begknag at the hLnWbn of the NorlMdy she of Lot t t with A Wa &NAM SMOM ly hom ISM NorSwh Tra, pareW with and dMard f 0 feet Y"w" of the Eas" a* of said Lot 11; ttwwwe BWlary Wnp ieW paratW 2 a distance of 85 feet (emd POW Wa beedhg Boffin 9 "VOW 69 mkeaea, 33 oonds Email; jC1'O 10" .. �G tlwro. soon 61 Geyer. M mows, t t aewnde w.el a astanc. of t taeo.1e feel to did `N V" ika of NW Lot 11 ud aW she then whuhmung SURVEY FOR: ._f.+—IEFEH]_ DESCRIPTION: Lot 11, Radisaon Inn Addition, — 01dI19 to the recorded plat thereof. Hennapin County. Minnesota. I hereby Certify that this survey was p ^eparcd by to or under my direct supervision and that I am a duly Raglstered Land Surveyor under the laws of the State of Ml nneso G a. Dated this 26th day of September, 1991. E O A N, F I E L J 6 N O W a K, I V C. Surveyor' by JacK So lice Hlnne9ote License No, 202B1 NOTES: I. The orientation of this bearing system is based on the north ]foe of Lot It. MDISSON INN A0017 10N. which is assumed to nevo a bearing of North 75 degrees 19 minutes 46 Seconds East. . ... _. ._._. . -- "_ ------- _....._..._ .... u.......,...... ,.. .............. rr .nru.Wranr.. Running in Favor of ecting that the Reg of Titles upon the filing of a certified copy or in!s Jer and a certified copy of the plat of survey defining the easement sr Lot 11, show by memorial that the easement is reformed to read as ows: Together with an easement as defined in plat of survey filed in rrens Case No. A- 24774, a certified copy of which is filed as current No. 3042144;_ for access to the beach area, the use of the ach area, and for construction, maintenance and use of dock tending from the shore line of Lot 11 into Christmas Lake and general -reation purposes associated with the use of the beach area and dock the benefit of lands described in Order Document No. 3042143 over at part of Lot 11 determined in Torrens Case No. A- 24774, and scribed in Court Order Document No. 3042143. Directing that the Re( Titles in future Ctfs of Titles omit,the recitals relating to said easemen d in lieu thereof, place in said future Ctfs the recital as set forth in this der and omit the memorial of this order. April 24, 2016 Brad Nielsen Planning Director City of Shorewood 5755 Country Club Road RE: Lot 11 Dock Expansion Hearing Dear Brad, We received notice of the appeal hearing on Lot 11 boat mooring limits. We live at 5570 Shore Road, lots 4 and 4A, certificate 699236. We are also listed as easement holders of Lot 11 over Hennepin District Court Ruling No. A -24774 and the Minnesota Court of Appeals Decision C5 -92 -1201. Our home is located approximately 250 feet east of the Lot 11 easement. We believe our close proximity to Lot 11 gives us good standing to comment on the appeal. As neighbors and easement holders, we strongly object to the expansion of the Lot 11 dock to 4 boats. We agree with your original ruling and strongly support rejection of the referenced appeal. Expansion of the mooring capacity to 4 rather than 2 boats on the Lot 11 dock will add to the ambient noise and add significant clutter to the shoreline beyond what is allowed to any other Christmas Lake shoreline residents. It would also inappropriately change the look and feel of our residential neighborhood to more of a mini commercial marina. We are concerned that the expansion of the current standards for the benefit of lot 11 easement holders could have a significant impact on our and our direct neighbors property values. Please forward our objections to the Hearing Board members prior to the May 3rd meeting. Sincer /� , City of Shorewood Planning Department 5755 Country Club Road Shorewood, MN 55331 April 27, 2016 To the City of Shorewood Planning Department,, We are writing today in response to the Public Dearing Notice regarding our Lot 11 Deeded Access to Christmas Lake on 5540 Shore Road, Shorewood, MN. We greatly appreciate this opportunity to comment on the City honing Administrator's interpretation of the City Code relative to the number of boats allowed to be docked at the `vacant" property located at 5540 Shore Road. This is not a " vacanf' property_ This properly has been used since the 1940's by the homeowners for beach and lake rights with a shared dock. The full lakeshore of this property has been continuously used for general and recreational purposes on Christmas Lake since this time. Throughout the years there has been a history of continuous boat usage on Lot 11. The types and the number of boats have continuously changed, always in compliance with the City of Shorewood and the Department of Natural Resources, who share joint control. Currently R 1 regulations allow four boats, any combinations of motorized or not, to be moored to the dock, with a variable length of dock allowed to enable four boats to be moored. Canoes, rowboats, etc are classified by ordinance as "recreational moveable equipment" and as such are not limited by type and quantity and can be stored on Lot 11. We have used the dock continuously since we moved to our home in 1988. We share a boat with other stakeholders. This request is not unusual or unprecedented. There is another deeded access on the South side of Christmas Lake that allows four boats for neighbors who share a deeded access. The area of 5540 Shore Road that includes our deeded access and full lakeshore is currently staked out. We invite the Planning Commission to visit and view this area and see that docking four boats is an easy and reasonable request. For further information, we invited the Planning Commission to view our website at wNvw,lotl l.or, for the full history of the area. You will be able to view many pictures that demonstrate continuous use and sharing among the neighbors of our deeded access on Christmas Lake. In recent years we have new neighbors that share our deeded access and would like to use the dock to moor boats. Since there are so many property owners that share the deeded access who do not have lakefront property of their own, we think it only fair that the Shorewood Planning Commission honor the R I regulations that allow four boats. Sincerely, fir t- l ?rs 1' tchacl Coh e2J Mr. and Mrs. Michael Cohen 20640 Radisson Rd. Shorewood, MN 55331 ooW« v- 0 r 2J �, % � '• / err'^^^ � � C � 4- � � s- LL ;l m 0 a ;: 0 ww ( a } mh . �- Xr'� ' • ``tip m o VO -� .__ % a \� i'� 1 =mil' •i �` � Jyi !2% S. � g � Z \ y J LL ___Q SniT O Ul J Q u N TAD and MARY SHAW 5580 Shore Road Shorewood, MN 55331 April 29, 2016 Mr. Brad Neilsen Planning Director City of Shorewood Dear Brad: I am concerned about the request for additional boat dockage at my neighboring lot, Lot 11, Radisson Inn Addition. I am opposed to increasing the number of boats and increasing the already non- conforming use of the property. As one of the members of the city council when the owner of the lot, Mr. Ahern appeared to get a building permit, and the council turned him down, I was the council member who said the matter had to be decided by the courts, and the city shouldn't issue a building permit until the wording of the easement was cleared up. The matter was heard by the court, and the decision is what we have lived with for a number of years. I wish to testify before the planning commission as to this matter, and will speak in opposition. The length of shoreline does not allow more than two boats that are not owned by the property owner. At present, two boats are allowed. In recent years, there were four boats owned by easement holders, but they alternated placing them In the water so that there were only two boats docked at any one time. Most recently, three of the easement holders jointly purchased a boat, which they dock for most of the year on Lot 11's dock. I'll see you on Tuesday night. Sincerely, TAD SHAW My name is Gary Krebs and I live with my wife Nancy at 20555 Radisson Rd. We have been residents for the past 30 years and raised our family in this community. We are also lot eleven easement owners. We were involved in the inital six year law suit which ultimatly determined we had an easment running the full width of lot eleven 120 ft going back forty feet from the waters edge. This ruling by a district court referee was then approved by a district court judge and later after being appealed was reaffirmed by the minnesota appellate court. The minnesota supreme court refused to hear the case making the ruling final. The appellate court appeared to strengthen the inital settlement including added language referencing the use and maintence of a "dock or docks ". The city of Shorewood has already grandfathered in the dock on lot eleven. There are currently fourteen famlies who are easment owners. In the time I have lived here there have always been at least two boats on the dock and some years more than two . I currently share one of the boats with two other easment owners. All other docks on the lake are allowed four slips for one family. It would seem more than reasonable to allow four slips on the lot eleven dock since it involves fourteen families and there is 120 ft of shoreline exceeding the standard 100 ft minium by 20 ft. I do not see how this could cause a problem for the neighborhood when there has never been a problem in the past. As part of the inital lawsuit determining our easment rights we were able to prove to the court there has been a 75 year tradition of a dock and multiple recreational usage including boats on the lot eleven dock. We are reasonable people and we feel this is a reasonable request. We are asking the planning commission to look at the history and tradition of lot eleven and recommend four boat slips to be shared by fourteen families. Thank You the Krebs family 1 April 27, 2016 Brad Nielsen Planning Director City of Shorewood 5755 Country Club Road Shorewood, MN 55331 Dear Brad, RE: Hennepin County PID361173220012, 5540 Shore Road, Lot 11 (Lot 11) We own property at 5550 Shore Road, part of Lot 5 and Lot 5A Hennepin County property ID numbers 3611723220003 and 3611723220005. We are east of Lot 11 with one property 5560 Shore Road between us and Lot 11. We are also listed as easement owners of Lot 11 per the prior Hennepin District Court Ruling. We have been in continuous summer residence since our family purchased the property in 1937, post the fire at Radisson Inn. We were recently advised of the request to increase the number of power boats at Lot 11 from 2 -4, made by some Lot 11 easement holders in January 2016. At that same time we received notice of a Hearing appealing Shorewood's negative ruling on the aforementioned requested increase on the number of power boats on Lot 11 from 2 -4. We are not in favor of an expansion of the number of power boats at this site and agree with the ruling. Recalling that this was a recreational site for a Resort until 1936, our original understanding of the easement (held by our grandfather) was that it was for a bathing beach for former Radisson Inn properties. In the modern history of the site there have been two power boats there. Based on the conversion of the legacy summer rental Radisson Inn properties to year round homes this is a densely populated area. While we have all enjoyed the community of this density it is a busy, noisy, crowded stretch of lakefront. Safety and easement holders access to the lake with a material swimming beach for all need to be considered. Lot 11 easement holders value their lake access rights, as we all do, but we do not think that putting more stress on the area with more power boats is an improvement to those values for the group or the neighborhood. We are aware of similar sentiments among others along this shoreline and hope for your consideration. We appreciate your consideration request that you share this information with the Hearing Board members at your earliest convenience prior to the meeting. If we need to contact them directly please let us know. We will be present, as available, at the meeting Monday. Sincerely, Resthaven LLC, M. Cathleen Leeper, N. Susan Seifert, Nancy Tietz, John Joyce, Richard Ulring, Sally Duran, Anne Joyce, Mark Joyce, Lisa Suhaney William D. Nittler Direct Dial: (612) 305.7559 Email: whittler @nilanjohnson.com April 29, 2016 Mr. Bradley J. Nielsen Planning Director City of Shorewood 5755 Country Club Road Excelsior, MN 55331 RE: Appeal of Zoning Determination, Lot 11, Radisson Inn Addition Dear Mr. Nielsen: We write to express our support for your determination, as set forth in your correspondence of March 31, 2016 to Ms. Paula Callies, that the maximum number of boats that may be moored at the dock on Lot 11, Radisson Inn Addition, is two. We agree with the statements and positions set forth in the letters to you of April 25, 2016 from Michael Wille and April 24, 2016 from Paul and Suzanne Cossette, the April 26, 2016 e -mail to you from Patrice and Paul Aubrecht, the April 28, 2016 letter from Joe and Kris Hayes. Rather than repeat those positions and comments, as the current owners of Lot l l we wish to offer our own perspective as to why your determination is correct and why the pending appeal should be denied. In 1972, Donna's family purchased the historical cabin at 20525 Radisson Road, just north of Lot 11. Her parents, Nick and Ginny Watz, Donna and her three siblings spent many decades as one of the easement owners enjoying the "recreational use" of Lot 11. For all of those years, we can confirm there have been only one or two motorized boats docked adjacent to Lot 11, and there was no contest about the number of boats until recently. In fact, to accommodate the longstanding position of only two boats, for many years several of the easement owners jointly owned one pontoon boat that was docked on Lot 11. The easement rights of "recreational use" of Lot 11 meant enjoying time on the shoreline /beach front rather than the mooring of boats. Most recently, for over 10 years the prior owners of Lot 11, Michael and Leslie Wille, maintained one pontoon boat on Lot 11 while the easement owners shared the second boat docking there. We had been advised and fully understood for many years that being an easement owner on Lot 11 did not provide or guarantee us a right to keep a boat on Lot I I as part of our recreational use of the beachfront. Last year, we purchased Lot 11 in the hopes of maintaining peaceful community and historical perspective for this special lot that has been a part of our family's history. Our view, as supported by many others, is that allowing four boats to be moored on Lot 11 would significantly change the use of Lot 11 in a way that is inconsistent with the original intent of the easement. As 4810 -7574 -7377 Mr. Bradley Nielsen April 29, 2016 Page 2 owners of Lot 11, we pay the property taxes and maintain the property in a way that adds to the benefit of all of our neighbors. While we respectfully acknowledge the easement rights of certain parties who own homes nearby, we do not support the establishment of what could constitute a marina on our property. Recreational use, in ouropinion, does not justify an interpretation of the City ordinances and the Lake Minnetonka Conservation District Code of Ordinances to a level that would detrimentally affect Christmas Lake and the residents there. We appreciate the opportunity to submit our concerns on this petition and appeal. Please contact us if you have any questions or need additional information. Respectfully, Donna Watz/Bill Hittler e 4810 -7574 -7377 April 28, 2016 Brad Nielsen Planning Director City of Shorewood 5755 Country Club Road Shorewood, MN 55331 Dear Brad, We are writing concerning the appeal to the Zoning Determination -Lot 11, Radisson Inn Addition P.I.N. 36- 117 -23 -22 -0012. We reside at 5560 Shore Road. We share a property line with the east side of Lot 11 and the entrance for the easement is next to our home. We were dismayed to recently learn that a group of easement holders have requested an expansion of moored boats on Lot 11. We fully support your enforcement of the code and believe that expansion of easement holder rights beyond the code will ultimately lead to a degradation of Lot 11 and become a nuisance for our neighborhood, and for those homes adjacent to Lot 11. That many boats on that small lot will have a variety of negative consequences: • Additional water traffic and noise next to our shoreline. • Additional parking pressures on the extremely narrow Shore Road. • The lot will lose its residential feel and will take on the aspect of a marina. • The doubling of boats will only increase the safety hazard in our cramped area. Our family has summered on this property since the late 30's when my grandfather purchased it from Radisson Inn. Since 1985 our family has resided on this property year round, first my parents, now us. In that time, we have only witnessed one dock with one or two motorized boats moored on Lot 11 at any one time. In conclusion, we strongly object to any increase in the number of boats moored at Lot 11 and support the rejection of the appeal. We appreciate your consideration of our concern. Regards, Joe and Kris Hayes 5560 Shore Road Shorewood, MN 55331 952 - 334 -9909 11FILE COPY Brad Nielsen From: Aaron [aaronspeterson @gmail.com] Sent: Sunday, May 01, 2016 9:02 PM To: Brad Nielsen Subject: Lot 11 non conforming use meeting Brad, I may not be able to attend the meeting on Tuesday regarding lot 11 and the clarification /appeal of boat mooring. As part of the 11 easement and nearby neighbor I would like to express my agreement with your assessment that a non conforming variance can not be expanded on. I guess the bottom line is I oppose any change that would increase boat mooring from 2 boats to 4 boats on lot 11. Thank you for taking my opinion into consideration. Regards, Aaron Peterson 29595 Radisson Rd. 1 From: Nicola Peterson [nicola.peterson83 @gmail.com] Sent: Tuesday, May 03, 2016 11:02 AM To: Brad Nielsen Cc: Aaron Subject: Christmas Lake easement - lot 11 Hi Brad, I hope this email finds you well. I wanted to write a quick note regarding the meeting tonight on the easement for lot 11 on Christmas Lake. As you know, Aaron and I are new to the neighborhood and want to be supportive of everyone's interests. While we are part of lot 11, we don't use it as of now and don't necessarily see ourselves utilizing it much in the future. However, we want to be sensitive to our neighbors' concerns that 4 boats there could be problematic with unsupervised children, noise, and overall boat traffic. We also understand the desire for neighbors to have boats there and that everyone wants to enjoy the beauty of the lake. One suggestion that Aaron and I discussed (and again I preface this with the utmost humility as we don't fully understand the history of lot 11), is possibly a boat lottery for the 2 boat spots each season. This seems like it would hopefully be fair for everyone to have their turn to keep a boat there, but also keep the boat limit at 2. We are hoping to make the meeting tonight, but with this nice weather, Aaron has been planting the fields around the clock trying to get everything in the ground. With three kids under 4, I'm not sure if it'd be helpful to bring them on my own to the meeting as you can probably imagine! I did want to share our two cents though as the planning commission is deliberating. Thank you for your time and consideration! All the best, Nicola Peterson 20595 Radisson Road Sent from my iPhone file:/ //S! / ... a/User %20Data/Planning/ 2016 %20CilRRENT %20CASES /Lot %2011/ Resident %20Correspondence / Peterson %201tr %205- 03- 16.txt[5/3/2016 3:33:27,PM] bnielsen 20435 Radisson Road Shorewood, MN 55331 612- 280 -3647 lessiberchild @gmail.com steveberchild @gmail.com May 2, 2016 Brad Nielsen Planning Director City of Shorewood 5755 Country Club Road Shorewood, MN 55331 Dear Brad Nielsen: We are Lot 11 easement owners, residing at 20435 Radisson Road. We are fairly new to the neighborhood, having moved to our current residence in August of 2014. We are writing in support of the recent discussion and pending decision to allow four boats on the dock on Lot 11. Though we have not had the history with Lot 11 that many easement owners share, we do understand it to be a very unique and special place that we would like for our family to be able to fully enjoy as others have through the years. We do not believe that adding just two more boats to the dock will in any way distract from opponents' enjoyment of the lake. We do however, think that it adheres to the policies of the city. We take great pride in our ability to utilize such a beautiful lake and intend to support the betterment of the lake and the neighborhood through its use. Please kindly consider the good intent of those of us requesting additional dock space. We appreciate your attention to this matter. Sincerely, Jessi and Steve Berchild MEMORANDUM TO: Brad Nielsen, Planning Director FROM: Tim Keane, City Attorney DATE: April 29, 2016 RE: Zoning Determination — Lot 11, Radisson In Addition This memorandum is in response to your inquiry relating to an appeal of the zoning administrator's determination as to the maximum number of boats that may be moored at Lot 11, Radission In Addition. My review of this appeal is based upon: (1) your determination dated March 31, 2016; (2) the appeal of zoning administrator's determnination submitted by Paula A. Callies dated April 12, 2016 with attachments; and (3) all applicable regulations of the City of Shorewood and the Lake Minnetonka Conservation District. Setting aside the long and somewhat contentious history relating to Lot 11, I agree with your determination that the question of dock usage is ultimately controlled by City of Shorewood code of regulations, Section 1201.03 Subd. 14. b., which provides: "b. Docks and wharves, permanent or floating, shall not be built, used or occupied on land located within the R Districts until a principal dwelling has been constructed on the lot or parcel." You conclude that because there is no principal dwelling on the subject property, a dock of any kind is a nonconforming use. I agree. While the dock which has been located on the subject property for establishment of legal nonconforming use, such nonconformity may not be expanded or intensified. Should you have any questions please contact me at (612) 334 -5015. cc: Bill Joynes, City Administrator ATTACHMENT V City Attorney's Memorandum 4821- 4627 - 8449.1 May 2 2016 Shot•ewood Planning Coaianmssion Shorewood C "ity Council Ro', Lot 11 C'hristz»as Lake= AMI(c,il tyf A mii)istrative Decision Dear Commissioner.,; and Cite Council Members: I have had clone additional research aml am stibmitthig this letter in support of our appeal of the Zoning Adiniaaistrat.or's det(-�raniaaation. Because the City of Shorewood doe ,s not havo jurisdiction over Ch- ristuiras'Lake, there is no legal basis for the Ztraaii -i fldna iiiistra�tior' a doci.,s:ioaa ita this matter On behalf of the State, the DNR has juri :dictimi over public waters in Miunesota aaa7der Minn. Stat. Ch. 10:3 A-103C1, Christmas Lake is desi noted as a public water under Ch.103C1. The City of homwood does not, have_ authority, near jurisdiction to re ulra.te the use of surface waters, inclucliaag but, not 110Ccs'Sarily limited tea, the nuinber and type of boats and docks on Christmas Lake. The City's zoning regulations stop tit, the shoreline. Pursuant to 1Vlinnesota Rule 6120.3200, local r epilations nvast receive prior approval ofthe DNR to b .effective. The DNR, maintGtins a summary of local restrictions that have beeaa approved coil :enihig lMimiesotaa lake acid river vise. f5ee, , �v.�v.clnt [a,it ann.iaa�fr,y ulaattctaasiiacaat. «oat r. The only regulations that have jeez approved for Christmas Lake relate to water skiing, not boats and docks. Accordiaag to LMC'D Code Section 1.02, the LMCD regulcat,ioris were a.d,opft,)d in order to implement the statutory rosponsibilitio; established by the Mitmesotaa looslature in 11967. The legi<,laatare oreatted the LMCD and specifically authorized it to establish regulatioias for Lake Minne.tcank<a, aas provided by .Minn. Stat. §10311.601' through §103B.645, The legis:lattare did iiot authorise the extension oflLMCD regulations to. apply to other publics water bodies, nor allow a city to unilaterally adopt its own regulation; over public waters. There is no legislative authorilw for the City of Shorewood to decay the Applie.ti ;ats request fear 4 boats at the Legit 11 (locyk hi this caise. They decision of the Zoning Adaiaaaiist.r,ator zaa this matter should be overturned. Thank you for your eonsidgroticsia, Paula A. Caallies 20465 liatd isson'Road PECITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD • SHOREWOOD, MINNESOTA 55331 Phone: (952) 960 -7900 • FAX: (952) 474 -0128 • Email: planning &i.shorewood.mn.us PLANNING AND PROTECTIVE INSPECTIONS MEMORANDUM TO: FROM: DATE: RE: FILE NO. BACKGROUND Planning Commission, Mayor and City Council Brad Nielsen 28 April 2016 Benjamin, John — Request for Rezoning from R -2A to C -1 405 (16.06) Mr. John Benjamin has arranged to purchase the property at 24250 Smithtown Road (see Site Location map — Exhibit A, attached). He has requested that the property be rezoned from R -2A, Single- and Two - Family Residential to C -1, General Commercial. The property contains 1.59 acres and is currently occupied by a single - family residence (see Survey — Exhibit B, attached). Land use and zoning surrounding the subject property are as follow: North: Shorewood Public Works Department; zoned R -2A East: South Lake Public Safety Building (Police and Fire); zoned R -2A South: Auto repair and self -serve car wash; zoned C -1 West: Candy store, in Tonka Bay; zoned commercial As noted in the applicant's project narrative (Exhibit C), the property is characterized by a rather significant change in grade — as much as 18 feet. Access to the site is located at its southeast corner where the existing driveway to the home opens onto the private driveway owned by the City and which serves the Public Works Department site and the South Lake Minnetonka Public Safety Building. There is some question as to the arrangements for this access onto the City's driveway. Initial discussions with the applicant's consultant were based on the future construction of an office building on the site, which is illustrated in the applicant's project narrative (Exhibit Q. The site sketch provided illustrates how a single -story office building containing approximately 12,880 square feet of floor area, and its associated parking might fit on the site. More recently, the applicant has indicated that he is considering proposing a motel /hotel facility for the property. Memorandum Re: Benjamin Rezoning 28 April 2016 ISSUES AND ANALYSIS A. Comprehensive Plan. Section 1201.04 Subd. Ld. of the Shorewood Zoning Code sets forth the considerations to be used by the Planning Commission in evaluating requests for amendments to the Code — in this case, a change in the zoning district. Perhaps the most significant consideration is consistency with the Shorewood Comprehensive Plan. Staff met with the applicant's consultant prior to it making an application for the rezoning. The consultant was directed at that time to the Smithtown Crossing Redevelopment Study, which had been adopted previously into the Comprehensive Plan as effectively the area plan for the vicinity in which the site is located. Specific to the subject site, the Study recommends as follows: "The single family residential property on the north side of County Road 19 is surrounded by commercial dei,elopment in Tonka Bay and public facilities (public works, police and fire). The City should be open to a rezoning of this site to R -C, Residential /Commercial. " The applicant subsequently chose to apply for C -1, General Commercial zoning, presumably for its considerably greater latitude in land use choices, its less restrictive zoning standards (e.g. setbacks, height, etc.) and its less restrictive regulations (e.g. hours of operation). In light of the applicant's most recent idea for a motel facility, the C -1 district would be his only way to achieve that use of the land. Motels are not allowed in the R -C district. B. Site Plan. The site plan submitted with the rezoning request is simply intended to illustrate how the proposed use of the property might fit. The plan suggests using the existing driveway which is located quite close to County Road 19. This location may present issues with respect to stacking on the City's access drive. The applicant indicates that he is exploring what, if any, access easement rights the subject property may have over the City's property. The plan illustrated in Exhibit C appears to maximize the site, even using C -1 setback requirements. Notably missing is any kind of storm water ponding that may be necessary to control drainage on the property. C. Traffic. Based on the Smithtown Crossing recommendation to consider R -C zoning in place of the current single - family residential use, it is reasonable to expect some increase in the number of trips generated by the new use of the site. It is interesting to note in the applicant's narrative the difference in trips between general office and medical office. It should also be noted that the trip generation table provided on page 2 of the narrative uses an office building with 18,260 square feet versus the 12,880 square feet illustrated on his site plan. RECOMMENDATION There are enough open ended issues related to this request to warrant additional study. Above all, however, is the fact that the C -1 zoning is not consistent with the Shorewood Comprehensive Plan. As such approval of the zoning request is not recommended. Cc: Bill Joynes Tim Keane Larry Brown Paul Hornby John Benjamin Brad Scheib -2- rel CL �0 CO a S_ U 10 U J MM Am -0 -0 MAN!,-, CD a) o LL oU z�° 0 LO LO N C Exhibit A SITE LOCATION Benjamin Rezoning Request II 1 0 30 60 90 SCALE IN FEET • FOUND IRON MONUMENT SET IRON MONUMENT MARKED O 87TH LICENSE NUMBER 22033 LEGEND 0 MANHOLE Vd.@ CATCH BASIN 0 GATE VALVE Os SPRINKLER BOX ® AIR CONDITIONER M ELECTRIC BOX ij UTILITY POLE E— GUY PARE ,D TELEPHONE MANHOLE © COMMUNICATION BOX 0 GAS METER SIGN ® WALL — X —X —X— WRE FENCE — ° — ° —°— WOW FENCE e UNDERGROUND ELECTRIC —cRry OVERHEAD PARES T UNDERGROUND TELEPHONE c UNDERGROUND CABLE c UNDERGROUND GAS rwrvwm TREEUNE nvzs SPOT ELEVATION "_992-' EXISTING CONTOUR LINE CONIFEROUS TREE DECIDUOUS TREE BITUMINOUS SURFACE CONCRETE SURFACE GRAVEL SURFACE PAVER SURFACE 2786 50 —I-r: F.M. DRAWN B` DRAWING NAME: Z kgf 36653— TOPO,Nwa JOB NO. 36653 CHECKED BY: FILE NO. 610 L.J.N. i 0 IL i Cj i99I' OQ 2ry� W ~�� Z e� ii"3sr tiJ I,W� A) o^ ts9 y ke /S�TM / C�NFR eD PROPER—,,' ZOPI D R _. ;SI'!..__ ^;'D _ LILY RESIDEN --tj, 89` / i � I ✓N t UNEHO80 FLAT COUNTY E AID 5TAI°i REVISIONS Exhibit B DESCRIPTION SURVEY BOUNDAR A TOPOGRAPH11 Benjamin Rezoning i i �F Smithtown Crossing Parcel Rezoning Project Narrative ® 24250 Smithtown Rd Intiroduction The applicant John Benjamin is representing Bonnie Witrak for this project. John Benjamin, as nominee for Bonnie Witrak, has entered into a contract to purchase the property at 24250 subject to receiving the necessary entitlements to construct an office building on the property. The applicant has retained the assistance of professional service firms including planning and landscape architecture (Hoisington Koegler Group Inc.), architecture (RSP Architects), municipal /civil engineering (BKBM), and traffic /transportation planning (Wenck Associates). Requested Action The applicant is seeking a rezoning of 24250 Smithtown Road from R -2A, Single /Two Family to C -1, General Commercial to allow for general office, medical office, or other uses as permitted in the C -1 General Commercial district. Site Context The approximately 1.59 acre site is located on the north side of Smithtown Road (County Road 19) and boarded to the north by the Shorewood Public Works Facility, to the east by the South Lake Public Safety Building and to the west by commercial development in Tonka Bay. The site is currently occupied by a single - family home. The site sits up on a hill /null with approximately 18 feet of grade change. Access to the site is provided by a driveway onto a private drive serving the city Public Works facility. The applicant is doing title work to research any existing easement or shared driveway agreement. Access to the site will likely remain in this general configuration in order to minimize additional access points onto Smithtown Road (CR 19). Additional detail on the natural resources and infrastructure availability to the site will be determined at time of a more detailed site plan approval. M=.1 The property is guided commercial in the Comprehensive Plan as a result of adoption of the recommendations contained in the 2012 Smithtown Crossing Study (Resolution 12 -067). The requested rezoning from R -2A to C -1 will bring the property into conformance with the Comprehensive Plan. The Comprehensive Plan (Smithtown Crossing Study) notes that this area is ready for redevelopment. The conversion of this property from residential to commercial achieves the Comprehensive Plan intent of transforming non - conforming residential uses to complementary commercial uses so that a cohesive, compact activity center can be created in this general location. Exhibit C 24250 Smithtown Road — Rezoning Project Narrative — 5 April 2016 PROJECT NARRATIVE Further direction on the vision for the area can be found in the 2012 Smithtown Crossing Redevelopment Study. The study noted that this area is the northern gateway to the community. Development in this area was determined to be disjointed and containing a number of underutilized properties. Redevelopment is sought to make better use of land, enhance the tax base, grow jobs, and reflect the character of the community. The study envisioned that retail and office in this area would be an appropriate transition between the higher intensity commercial adjacent in Tonka Bay and the surrounding lower density housing. Other than the existing single - family homes retaining their residential zoning, all of the other properties in the study area were recommended to be rezoned to C -1, General Commercial. Rezoning of this property to C -1, General Commercial will be in keeping with the commercial intent for this area and will be appropriate given that the Tonka Bay sites to the west are zoned C -2, General Commercial and both the public works facility to the north and public safety facility to the east are of a commercial nature in use. Current projected uses for the site are anticipated to be office or medical office related uses. These uses are consistent with the guiding principles outlined in the Smithtown Crossing Study the purpose of the C -1, General Commercial. The site is located on a minor arterial, Smithtown Road /County Road 19. As a minor arterial, this road is designed to accommodate a higher volume of traffic consistent with the proposed use. The attached concept site plan was prepared by RSP Architects to demonstrate the feasibility of developing the site for an office related use and was developed using the development standards of the C -1, General Commercial District. The exact end use has not been determined; however, a general office or medical office use is envisioned for the property. An estimate of vehicle trips generated on the site was made usin the Trip Generation, Ninth Edition, published by the Institute of Transportation Engineers. The following is a summary of the potential trip characteristic based on the assumptions made for the attached concept. Table 1: Weekdav Trip Generation for Existing and Proposed Land Uses �� �< %� �� P � �.,% 4 �rc'f � �� . � �, � �� ��� ��; � 3� � �. � ��%c�' � C.✓fit✓" �` ��v'�'_'?i �7.. �3"' #f` Via" N�"� � P� 2 �*�.. '�'- _�?'��d'..:✓ `t rY3F^ ,Fir �.���a 5�, 3 v'i? 1Y_ �y� '� �.. Sti�p�J � �' 'k'. "� ? i" £Sn�)�,� -:. r"i �"� rL...,e�a*�`'�L�T' .,�"1y��- ,'r7�'""'zFf�S - �s�'^p9p, � gl�^ ... �'"���+ ���, �,-„ �,K fn �. x:., ���Z�t, i� �', m�iU��a;;.x Fmx a Lrfi»'f• "+"u'?G� Y,'��";e � � �.���1. . :, ,�?� �-»" f; ..,,.r,✓ � ,w. ra >,�*��±.�r:. :, Previous Use In Out Total In Out Total Total Single - Family 1 d.u. 0 1 1 1 0 1 10 Detached Housing Proposed Use In Out Total In Out Total Total Option A: 18,260 sf 25 3 28 5 22 27 201 General Office Total Added Trips 25 2 27 4 22 26 191 Option A Option B: 18,260 sf 34 10 44 18 47 65 660 Medical Dental Office Total Added Trips 34 9 43 17 47 64 650 Option B sf= square feet; d.u. = dwelling unit 2l Page 24250 Smithtown Road — Rezoning Project Narrative — 5 April 2016 Upon rezoning the site, a more detailed site plan and building plans (including elevations) will be prepared to facilitate required development approvals for the site. This site plan will be prepared following the appropriate zoning standards and the redevelopment guiding principles as outlined in the Smithtown Crossing Study. The applicant has completed a market study for the property as part of evaluating the project feasibility and potential end uses. The market study supports the development of the site for general office or medical office purposes as well as other uses supported by the C -1 General Commercial District. 31 Page 24250 Smithtown Road — Rezoning Project Narrative — 5 April 2016 s — � o y h ED g -D-R-A-F-T- CITY OF SHOREWOOD ORDINANCE NO. _______ AN ORDINANCE AMENDING THE SHOREWOOD ZONING CODE AS IT PERTAINS TO ALTERNATIVE ENERGY SYSTEMS - SOLAR Section 1 . City Code Section 1201.02 is hereby amended to include: ALTERNATIVE ENERGY SYSTEM. “ A solar energy system, wind energy system, or ground source heat pump.” BUILDING-INTEGRATED SOLAR ENERGY SYSTEM “. A solar energy system that is an integral part of a principal or accessory building, rather than a separate mechanical device, replacing or substituting for an architectural or structural component of the building including, but not limited to, photovoltaic or hot water solar systems contained within roofing materials, windows, skylights and awnings.” FLUSH-MOUNTED SOLAR ENERGY SYSTEM “. A roof-mounted system mounted directly abutting the roof. The pitch of the solar collector may exceed the pitch of the roof up to 5% but shall not be higher than 10 inches above the roof.” PASSIVE SOLAR ENERGY SYSTEM “. A system that captures solar light or heat without transforming it to another form of energy or transferring the energy via a heat exchanger.” PHOTOVOLTAIC SYSTEM “. A solar energy system that converts solar energy directly into electricity.” SOLAR ENERGY SYSTEM “. A device or structural design feature, a substantial purpose of which is to provide daylight for interior lighting or provide for the collection, storage and distribution of solar energy for space heating or cooling, electricity generation or water heating.” Section 2 . City Code Section 1201.03 is hereby amended to include: “Subd. 23. Alternative Energy. a. Purpose. It is the intent of the City Council, consistent with the Comprehensive Plan, to provide a sustainable quality of life for the city’s residents, making careful and effective use of available natural, human and economic resources and ensuring that resources exist to maintain and enhance the quality of life for future residents. In accordance with that intent, the City finds that it is in the public interest to encourage alternative energy systems that have a positive impact on energy production and conservation while not having an adverse impact on the community. Therefore, the purposes of this ordinance include: (1) To promote rather than restrict development of alternative energy sources by removing regulatory barriers and creating a clear regulatory path for approving alternative energy systems. (2) To create a livable community where development incorporates sustainable design elements such as resource and energy conservation and use of renewable energy. (3) To protect and enhance air quality, limit the effects of climate change and decrease use of fossil fuels. (4) To encourage alternative energy development in locations where the technology is viable and environmental, economic and social impacts can be mitigated. b. Solar Energy Systems. (1) Zoning districts. Solar energy systems in accordance with the standards in this section are allowed as a permitted accessory use in all zoning districts. (2) Standards. (a) Height. Roof-mounted solar energy systems shall comply with the maximum height requirements in the applicable zoning district. Ground-mounted solar energy systems shall not exceed 20 feet in height. (b) Location. In residential zoning districts, ground-mounted solar energy systems are limited to the rear yard. In non- residential zoning districts, ground-mounted solar energy systems may be permitted in the front yard of any lot or the side yards on corner lots, subject to applicable building setback requirements. (c) Setbacks. Ground-mounted solar energy systems including any appurtenant equipment shall be set back a minimum of 20 feet from all property lines. Roof-mounted systems shall comply with all building setbacks in the applicable zoning district and shall not extend beyond the exterior perimeter of the building on which the system is mounted. (d) Roof mounting. Roof-mounted solar collectors shall be flush mounted on pitched roofs. Solar collectors may be bracket mounted on flat roofs. -2- (e) Easements. Solar energy systems shall not encroach on public drainage, utility roadway or trail easements. (f) Screening. Solar energy systems shall be screened from view to the extent possible without reducing their efficiency. Screening may include walls, fences or landscaping. (g) Maximum Area. In residential zoning districts, ground- mounted solar energy systems shall be limited to a maximum area of 120 square feet. In other zoning districts, ground-mounted solar energy systems shall be limited to a maximum area consistent with the accessory structure limitations or no more than 25 percent of the rear yard, whichever is less. (h) Aesthetics. Reflection angles from collector surfaces shall be oriented away from neighboring windows. Where necessary, screening may be required to address glare. (i) Feeder lines. The electrical collection system shall be placed underground within the interior of each parcel. (3) Safety. (a) Standards – Electrical. (i) All utilities shall be installed underground. (ii) An exterior utility disconnect switch shall be installed at the electric meter serving the property. (iii) Solar energy systems shall be grounded to protect against natural lightning strikes in conformance with the national electrical code as adopted by the City. (iv) No solar energy system shall be interconnected with a local electrical utility company until the utility company has reviewed and commented upon it. The interconnection of the solar energy system with the utility company shall adhere to the national electrical code as adopted by the City. (b) Certification. The solar energy system shall be certified by Underwriters Laboratories, Inc., and comply to the requirements of the international building code. -3- (c) Abandonment. Any solar energy system which is inoperable for twelve (12) successive months shall be deemed to be abandoned and shall be deemed a public nuisance. The owner shall remove the abandoned system at their expense after obtaining a demolition permit. (4) Permits. Building-integrated solar energy systems shall require a building permit prior to installation. Ground-mounted solar energy systems shall require a zoning permit, pursuant to Section 1201.07 of this Code prior to installation. c. Wind Energy Systems. (Reserved for Future Use) d. Ground Source Heat Pump Systems. (Reserved for Future Use)” Section 3 . This Ordinance shall be in full force and effect upon publishing in the Official Newspaper of the City of Shorewood. ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD this _____ day of ______________ 2016. Scott Zerby, Mayor ATTEST: Jean Panchyshyn, City Clerk -4- April 4, 2016 Re: 20920 Forest Dr Shorewood, MN 55331 To whom it may concern, I need an extension on my lot build variance for 20920 Forest Dr in Shorewood. I would like a six month extension from the date of expiration of the current variance. The property is currently on the market and is being sold as a lot so keeping the approved variance in tact is critical. I . . ►R[• CITY OF SHOREWOOD RESOLUTION NO. 15 -040 A RESOLUTION GRANTING A SETBACK VARIANCE TO DAVID MOE WHEREAS, David Moe (Applicant) is the owner of real property located at 20920 Forest Drive, City of Shorewood, County of Hennepin, State of Minnesota, legally described as: "Lot 22 and that part of Lot 23 lying southerly of the southwesterly line of Lot 21 extended to the east line of Lot 23, Block 4,Minnetonka Manor, Hennepin County, Minnesota "; and WHEREAS, the Applicant has an existing single- family dwelling, which dwelling is located approximately 19.5 feet from the right-of-way of Forest Drive and six feet from the north side lot line of the property; and WHEREAS, the Applicant has applied for variances to replace the existing structure with a new home and attached garage; and WHEREAS, the Applicant's request was reviewed by the City Planner, whose recommendations are included in a memorandum, dated 29 April 2015, a copy of which is on file at City Hall; and WHEREAS, after required notice a public hearing was held and the application reviewed by the Planning Commission at a regular meeting held on 5 May 2015, the minutes of which meeting are on file at City Hall; and WHEREAS, the City Council considered the application at its regular meeting on 26 May 2015, at which time the Planner's memorandum and the Planning Commission's recommendations were reviewed and comments were heard by the Council from the Applicant and from the City staff, and NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Shorewood as follows: FINDINGS OF FACT 1. The subject property is located in an R -1D /S, Single - Family Residential /Shoreland zoning district, which requires a 30 -foot setback from the street and a 10- foot setback from the side lot line. 2, The existing building on the property is located approximately 19.5 feet from the right -of -way of Forest Drive and six feet from the north side lot line of the property, 3. The subject property is substandard with respect to lot width, having only 49 feet, tapering to 37.5 feet, where 75 feet is the minimum lot width for the R -1D /S zoning district. 4. The subject property contains approximately 10,288 square feet of area, 5. The Applicant proposes to replace the existing house with a new house and an attached garage which requires a four -foot setback variance on the north side of the property and a 19 -foot variance from Forest Drive, 6. The Applicant's project would result in only 17 percent impervious surface on the property, where 25 percent is allowed. 7. Forest Drive is a dead -end road with a 60 -foot right -of -way that exceeds the 50- foot standard prescribed by the Shorewood Subdivision Code. CONCLUSIONS A. The Applicant has satisfied the criteria for the grant of a variance under the Shorewood City Code and has established practical difficulties as defined by Minnesota Statutes, B. That based upon the foregoing, the City Council hereby grants to the Applicant setback variances to construct a new home and attached garage on the property in place of the existing home. The Applicant or his successors or assigns shall use the variance within one year from the date he receives a certified copy of this resolution, if he chooses to request an extension of no more than six months, he must do so prior to the end of the one -year deadline, C. That the City Clerk is hereby authorized and directed to provide a certified copy of this resolution for filing with the Hennepin County Recorder or Registrar of Titles, ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD this 26th day of May 2015, ATTEST: P2" Jean Panchyshyn, City Clerk -2- Scott Zerby, M or C-� 1111 III I r. �� � �� �� r� r ,� tc vi► ��4j I FA lRyll�bill" `1111627 Jal AUo 91 O O LU 0 cu 4o aU4i •r .,&, Q CO � N V-- 4i SI'L'L LOCATION a z C) N r III I r. �� � �� �� r� r ,� tc vi► ��4j I FA lRyll�bill" `1111627 Jal AUo 91 O O LU 0 cu 4o aU4i •r .,&, Q CO � N V-- 4i SI'L'L LOCATION ' IS 1 I 1 � o I I 1 � I I 1 ' I I I I I I I I 1 1 I „ 1 1 � I I 1 I 1 I I I I 1 1 I I � I 1 I 1 I I I I 1 � I I , I 1 II 11 11 II Q N W yy 0 w W LL °an NS k fE I 1 I I 1 I 1 1 p�T RUSTIC WAY PROPOSED SITE PLAN MEMORANDUM CITY OF HOREWOOD 5755 Country Club Road • Shorewood, Minnesota 55331 •952- 960 -7900 Fax: 952- 474 -0128 • www.ci.shorewood.mn.us • cityha11@ci.shorewood.mn.us ci.shorewood.mn.us TO: Planning Commission, Mayor and City Council FROM: Brad Nielsen DATE: 29 April 2016 RE: Sale of City -Owned Property — Howard's Point Road Tax - Forfeited Lot FILE NO. 405 (Admin) A very small parcel of land, located just north of 5460 Howard's Point Road (see Site Location map — Exhibit A, attached) has once again come up on Hennepin County's tax - forfeited land list. The property was forwarded to the City in 2008, at which time the City asked the County to limit the sale of the parcel to one or both of the adjoining property owners, as it was quite useless to anyone else. It is far too small to build on, and it cannot have a dock without a house on the lot. For some reason, the parcel was either not put on the auction in 2008, or no one was interested in its purchase. The City has since been approached by nearby property owners who have easements across the parcel for swimming, picnicking, fishing, etc. They are willing to pay approximately $50,000 in back taxes to purchase the property. The City has agreed to acquire the property and sell it to them for the amount of the taxes. Although the City will only own the property for a very short time, it is necessary for the Planning Commission to make a recommendation to the City Council as to the sale of any public property. This is very much considered to be a housekeeping matter and we have placed it on a consent agenda for next Tuesday's meeting. Essentially, we are looking for a motion stating that the sale of the parcel is consistent with the Shorewood Comprehensive Plan. If you have any questions relative to this matter, please do not hesitate to call or email me prior to Tuesday night's meeting. Cc: Bill Joynes Tim Keane Bruce DeJong a� o o u- 0 z<o LO 0 LO N O 0 Cam_ G KUTAK ROCK LLP SUITE 1750 U.S. BANK PLAZA SOUTH 220 SOUTH SIXTH STREET MINNEAPOLIS, MINNESOTA 55402 -4513 TIMOTHY J. KEANE timothy.keane@kutakrock.com (612) 334 -5000 VIA EMAIL ian.duffieWtennepin.its Jan Duffie Hennepin County Resident and Real Estate Services 300 South Sixth Street, A -600 Minneapolis, MN 55487 -0060 612 - 334.5000 FACSIMILE 612. 334.5050 www,kutakrock.com April 20, 2016 RE: Shorewood Parcel Acquisition — Assurance Letter PID 31- 117 -23 -11 -0004 Dear Jan: #1OB ATLANTA CHICAGO DENVER FAYETTEVILLE IRVINE KANSAS CITY LITTLE ROCK LOS ANGELES OKLAHOMA CITY OMAHA PHILADELPHIA RICHMOND ROGERS SCOTTSDALE SPOKANE WASHINGTON, D.C. WICHITA This letter is offered on behalf of the City of Shorewood requesting the City's purchase of the above - referenced parcel as the "Assurance Letter" prior to the tax forfeit auction scheduled for -April 29, 2016. This letter represents the commitment by the City of Shorewood to purchase the subject parcel pursuant to the terms of the cost sheet attached as Exhibit A. The commitment to purchase is subject only to the approval of the attached resolution by the Shorewood City Council on April 25, 2016, The City shall provide to your office a check for the purchase amount of $51,746 (the "Funds ") together with the executed authorizing resolution to purchase on April 26, 2016. It is understood that in the event the funds and certified copy of the resolution are not delivered to your office by the end of business on April 26, the parcel will be made available at auction on April 29, 2016. Should you have any questions you may contact me at (612) 334 -5015. Sincerely, Timothy J. Keane cc: Scott Zerby, Mayor Bill Joynes, City Administrator Jeffery Cameron Exhibit B 4838- 1641 - 3232,1 CITY ATTORNEY'S LETTER Dated 20 April 2016 EXHIBIT A Hennepin County Resident and Real Estate Services Tax Forfeited Land Cos( Sheet for Governmental Subdivision Lance Robinette - Senior Property Management Specialist 04/14/20 10 612- 348 -8158 ID# 31- 117 -23 -11 -0004 ssessed Value pecials After Forfeiture ssurance Fee (3 %) tale Deed Preparation Fee: iling Fees: 1TFL to File deed) title Deed Tax: 1 $ 1.70 / $500 or part thereof - see char) } FL Holding Costs per MN Statute 282,01 Subd 1. ULL PAYMENT REQUIRED: Total: TE PREPARED: 4114/2016 * VALID THROUGH: 6/15/2016 eat must be postmarked June 15, 2016 'ERTIFIED FUNDS PAYABLE AT TIME OF APPLICATION LAKE PAYABLE TO: HENNEPIN COUNTY TREASURER UBJECT PARCEL: 00026 Address Unassigned, MN 55331 ID NUMBER: 31- 117 -23 -11 -0004 *Hennepin County reserves the right to update cost at anylime Revised 6/0912015 4838- 1641 - 3232.1 $50,000.00 S 1,5(10.00 $25.00 $51.00 $ 170,00 $0,00 x+51,746.00 CITY OF SHOREWOOD RESOLUTION NO. 16 -028 A RESOLUTION RELATING TO THE ACQUISTION OF TAX FORFEITED PARCEL LOT 1, AUDITOR'S SUBDIVISION 367 WHEREAS, that certain parcel of property located within the City of Shorewood, PID Number 31- 117 -23 -11 -0004, and legally described as Lot 1, Auditor's Subdivision No. 367, Hennepin County, Minn., has forfeited to the State of Minnesota due to the non - payment of real property taxes ( "Property "); and WHEREAS, to avoid the creation of a nuisance condition, the City of Shorewood has requested Hennepin County Resident and Real Estate Services to remove the Property from the public auction scheduled for April 29, 2016; and WHEREAS, Hennepin County has computed the full payment for the purchase of the Property prior to auction at $51,746 (the "Purchase Price ") payable to the Hennepin County Treasurer; and WHEREAS, the City of Shorewood desires to acquire the Property at the Purchase Price. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD: 1. The City of Shorewood approves the purchase of the parcel with Hennepin County PID Number 31- 117 -23 -11 -0004, and legally described as Lot 1, Auditor's Subdivision No. 367, Hennepin County, Minn., from Hennepin County in the amount of $51,746. ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD this 25th day of April, 2016. Sco erby, M r ATTEST: Jean Panchyshyn, City Clerk 4828- 2715- 3712.1 CITY OF SHOREWOOD RESOLUTION NO. 16- A RESOLUTION RELATING TO THE SALE OF TAX FORFEITED PARCEL LOT 1, AUDITOR'S SUBDIVISION 367 WHEREAS, that certain parcel of property located within the City of Shorewood, PID Number 31- 117 -23 -11 -0004, and legally described as Lot 1, Auditor's Subdivision No. 367, Hennepin County, Minn., has forfeited to the State of Minnesota due to the non - payment of real property taxes ( "Property "); and WHEREAS, to avoid the creation of a nuisance condition, the City of Shorewood has requested Hennepin County Resident and Real Estate Services to remove the Property from the public auction scheduled for April 29, 2016; and WHEREAS, Hennepin County has computed the full payment for the purchase of the Property prior to auction at $51,746 (the "Purchase Price ") payable to the Hennepin County Treasurer; and WHEREAS, the City of Shorewood desires to sell the Property at the Purchase Price. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD: The City of Shorewood approves the sale to the easement holders of the parcel with Hennepin County PID Number 31- 117 -23 -11 -0004, and legally described as Lot 1, Auditor's Subdivision No. 367, Hennepin County, Minn., in the amount of $51,746. ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD this 25`h day of April, 2016. Scott Zerby, Mayor ATTEST: Jean Panchyshyn, City Clerk 4828 -2715- 3712.1