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01 05 2021 Planning Commission Agenda Packet CITY OF SHOREWOOD COUNCIL CHAMBERS PLANNING COMMISSION MEETING 5755 COUNTRY CLUB ROAD TUESDAY JANUARY 5, 2021 7:00 P.M. Due to the Centers for Disease Control’s recommendation limiting the number of people present at a meeting, and pursuant to MN Statute §13D.02, the Shorewood Planning Commission meetings will be held by electronic means. For those wishing to listen live to the meeting, please go to http://ci.shorewood.mn.us/current_meeting/ for the meeting link. Contact the city at 952.960.7900 during regular business hours with questions. For link issues at meeting time, call 952.960.7906. A G E N D A CALL TO ORDER ROLL CALL / (LIAISON) SCHEDULE MADDY (FEB) ______ GORHAM () ______ EGGENBERGER (NOV) _ _ GAULT (DEC) ______ RIEDEL (JAN) ______ COUNCIL LIAISON (NA) ______ 1. APPROVAL OF AGENDA 2. APPROVAL OF MINUTES  December 1, 2020 3. MATTERS FROM THE FLOOR (This portion of the meeting allows members of the public the opportunity to bring up items that are not on the agenda. Each speaker has a maximum of five minutes to present their topic. Multiple speakers may not bring up the same points. No decisions would be made on the topic at the meeting except that the item may be deferred to staff or the City Council for more information.) 4. PUBLIC HEARINGS A) CUP for Verizon Wireless antennas on the west watertower Applicant: Verizon Wireless Location: 26352 Smithtown Road 5. NEW BUSINESS A) Variance for setback to property line for a fire pit/patio Applicant: Roger and Roberta Aronson Location: 5730 Club Lane B) Variance to the OHWL setback of Lake Minnetonka Applicant: Christian Dean Architecture Location: 454 Lafayette Avenue C) Variance to the OHWL setback of Lake Minnetonka Applicant: Lecy Brothers Location: 4320 Dellwood Lane Planning Commission Meeting Agenda January 5, 2021 Page 2 6. OTHER BUSINESS - None 7. REPORTS A) Council Meeting Report B) Draft Next Meeting Agenda 8. ADJOURNMENT CITY OF SHOREWOOD PLANNING COMMISSION MEETING TUESDAY, DECEMBER 1, 2020 MINUTES CALL TO ORDER Chair Maddy called the meeting to order at 7:02 P.M. ROLL CALL COUNCIL CHAMBERS 5755 COUNTRY CLUB ROAD 7:00 P.M. Present: Chair Maddy; Commissioners Eggenberger, Gorham, Gault and Riedel; Planning Director Darling; and Planning Technician Notermann Absent: None 1. APPROVAL OF AGENDA Riedel moved, Gorham seconded, approving the agenda for December 1, 2020, as presented. Roll Call Vote: Ayes — all. Motion passed 5/0. 2. APPROVAL OF MINUTES November 17, 2020 Eggenberger moved, Gault seconded, approving the Planning Commission Meeting Minutes of November 17, 2020, as presented. Roll Call Vote: Ayes — all. Motion passed 5/0. 3. MATTERS FROM THE FLOOR - NONE 4. PUBLIC HEARINGS Chair Maddy 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. A. PUBLIC HEARING — PUD Amendment for Minnetonka Country Club — 5920 Club Valley Road Applicant: TTD Land Holdings, LLC (Gonyea Homes) Location: 5920 Club Valley Road Chair Maddy opened the Public Hearing at 7:05 P.M. noting the procedures used in a Public Hearing. Planning Director Darling presented the staff memo and summarized the request for a PUD amendment to allow the height of the building to exceed 35 feet for the property located at 5920 Club Valley Road. She noted that in 2018, the two builders in the Minnetonka Country Club had requested a PUD amendment to allow 40 of the walk -out lots in the development to have taller homes in order to increase the variety of home styles available throughout the development. She CITY OF SHOREWOOD PLANNING COMMISSION MEETING DECEMBER 1, 2020 Page 2 of 13 explained that this lot was not part of the request, because, at the time, it was under contract for purchase. The original buyers have walked away from the purchase and the applicant would like to have more flexibility in the roof designs that they can offer. She showed renderings of what the applicant would like to propose for roof lines compared to what they are allowed under the current code. She gave an overview of the four areas that should be used when considering the PUD amendment and noted that staff looked very closely at the position of the home on the property specifically in relation to the home to the north before they made their recommendation for approval. She stated that the City received one letter in opposition to this request from Darcy Heil, 24525 Niblick Alcove, and noted that she had distributed the letter via e-mail earlier today. Commissioner Gault asked how many lots in the development were approved for the higher roof lines and asked where they are located in comparison with this lot. Planning Director Darling stated that there were 40 homes approved for higher roof lines. She stated that she is not sure where all of the lots are, but the majority are located on Prestwick Court and Bentgrass Way, with two of the homes on the west side of Club Valley Road. Commissioner Gault asked how many of the lots that were approved for the higher roof lines have been sold and been constructed. Planning Director Darling noted that she has this information on a map at her office, but does not have it at home for tonight's meeting. Chair Maddy noted that the applicant may be able to answer this question. Commissioner Riedel stated that the letter from the applicant references the section of the code that the Commission has recently discussed because there is possible ambiguity regarding the average land grade meaning the lowest land grade. He asked for an explanation of how that impacts this application for a PUD amendment. Planning Director Darling explained that the original developer and builders didn't understand the language in the code at the time which said that the building height was based on the average land grade, but the definition of average land grade in code is the lowest land within 5 feet of the home. She explained that this is where the trouble and confusion came about because they did not realize that average land grade meant lowest land grade. She stated that their proposal for the 40 lots was to use the average land grade, rather than the lowest land grade. Commissioner Riedel stated that his understanding was that there was initial confusion which then led to the application for 40 of the homes to have the higher roof line. He stated that this request was approved, however this was not one of those homes and are asking it to be included after the fact. Planning Director Darling stated that this is correct. Chair Maddy stated that the applicant had excluded ones that were under contract and the contract for this property fell through. He asked if the Commission could make the assumption that if this one had not been under contract that it would have been included in the initial request and they would have asked for 41 homes to have the higher roof line. Commissioner Eggenberger asked about the location of the resident who sent the letter in opposition to this request. CITY OF SHOREWOOD PLANNING COMMISSION MEETING DECEMBER 1, 2020 Page 3 of 13 Planning Director Darling showed the location of 24525 Niblick Alcove in relation to the subject property. Commissioner Gorham asked for clarification about the sentence in the report that stated, "changing the rules after the adjacent homes are constructed is problematic." Planning Director Darling stated that there could be concerns from the neighbors and there could be an issue by putting in a taller house next to a shorter home because there is a potential to block solar access. She stated that she was very cautious before she made her recommendation to seriously consider the impact on the neighbor. Commissioner Gault stated that if he was the neighbor and had been told that the building height was limited to 35 feet, he would be upset to find that his next -door neighbor was allowed to exceed that limitation. He stated that the basement and ceiling heights for this home are the same as the ones that are 35 feet high and the only difference that he can see are the roof lines. Commissioner Gorham asked if he had heard Planning Director Darling correctly that the 40 homes that were previously approved for the increased height was because they wanted more diversity. Planning Director Darling agreed that the builders wanted more diversity of housing styles. Commissioner Eggenberger asked about the hip roof versus a gabled roof and which home had greater sun access. Planning Director Darling explained that a hip roof would provide greater sun access for the home to the north than a gable roof. Rick Packer, Gonyea Homes, stated that the only reason this lot was not included in their original request was because it was under contract for a different style of house. He explained that on every walkout lot in the Minnetonka Country Club, they are faced with this same problem where the average land grade is actually the lowest land grade. He stated that on a flat lot or a lookout lot, they do not have this problem. He stated that he understands the solar access problem and believes that their design has addressed that concern. Commissioner Gault reiterated his question he had asked how many of the original 40 lots that had been approved for the higher roofline had been sold. Mr. Packer stated that some of those lots are Lennar lots, so he cannot answer for them, but noted that all of the Gonyea Homes lots have been sold. Commissioner Gault asked how many lots were left that may be in this same situation. Mr. Packer stated that he does not believe that there are any others left. Commissioner Riedel asked about the change in design and asked if it was led by the new owner. He stated that the former design worked well for the lot and asked why they couldn't just stick with the original design or if it was being changed for monetary reasons. He asked for clarification on whether the property had been sold or is under contract to build. Mr. Packer stated that they have a contract and the house plan is what is being presented. He stated that this home design is what the buyer would like to build. He reiterated that with the CITY OF SHOREWOOD PLANNING COMMISSION MEETING DECEMBER 1, 2020 Page 4 of 13 confusion between average land grade and lowest land grade they have had some problems trying to bring the homes in at that height. Commissioner Gault stated that the ceiling height on all the properties presented are exactly the same and doesn't understand why there needs to be the roof line height difference with this design. Mr. Packer stated that he cannot answer that, but noted that he had submitted the plans with the desired ceiling heights which translate to the higher roof line. He noted that before they were able to get the amendment, they were trying to work out ways to work around the code and ended up with some strange spaces inside the home. Chair Maddy stated that in looking at 5900 Club Valley Road, the ceilings are not the same as the home design being proposed. Commissioner Gault noted that it looks like the plans show different heights than what has been presented in the chart. Chair Maddy stated that he would like to be equitable to everyone in the neighborhood and 40 people have gotten this same leniency on the code. He stated that he would like to keep that in mind when the Commission is discussing the fairness of the request. Commissioner Riedel stated that variances are not supposed to be granted based on economic considerations only, but this is a PUD amendment and there is no legal guidance for this type of amendment. Planning Director Darling stated that the only guidance are the criteria that are in ordinance for a rezoning or a PUD. She noted that she had included the criteria in the staff reports: consistent with the Comprehensive Plan; compatibility with present and future land uses in the area; not depreciate the neighborhood; served by the existing public services. She explained that staff concluded that this amendment meets the criteria. Commissioner Riedel stated that he believes this decision turns on the question of how does the amount of shade that this would cause impact the immediate neighbors. He stated that according to Planning Director Darling's diligent research, he believes the answer is that it would not impact the neighbors much for the reasons she outlined in her report. He stated that according to Planning Director Darling's research, it does seem like the solar impact will be minimal. Planning Director Darling explained how she had researched the issue and all the details she took into consideration when making her recommendation. She noted that there is also a storm sewer line that runs through this area, so the homes will be 40 feet apart, which is twice as much as required for other lots, which helps mitigate the height issue. Chair Maddy opened the public hearing at 7:39 p.m., being there was none, he closed the public hearing at 7:40 p.m. Riedel moved, Eggenberger seconded, recommending approval of the PUD Amendment Allowing the Height of the Building to Exceed 35 feet at 5920 Club Valley Road. Commissioner Gorham stated that he is glad that Planning Director Darling did a thorough review of the sun access. He stated that he believes that if this had been presented earlier with the original PUD amendment, it would have been part of that original approval. CITY OF SHOREWOOD PLANNING COMMISSION MEETING DECEMBER 1, 2020 Page 5 of 13 Commissioner Gault stated that he finds it telling that the immediate neighbors did not submit a letter in opposition. Chair Maddy stated that with the large setback and the hip roof, he is not worried about allowing this amendment. Commissioner Riedel stated that with 40 feet separating the homes, he feels that overwhelms the difference height, including the angle of the sun and the shadow. Roll Call Vote: Ayes — all. Motion passed 5/0. Planning Director Darling stated that this request would be on the agenda for the December 14, 2020 City Council meeting. B. PUBLIC HEARING — CUP for a Special Purpose Fence Applicant: Roger and Roberta Aronson Location: 5730 Club Lane Planning Technician Notermann presented the staff memo and summarized the request for a CUP for a special purpose fence. She stated that the request is for a 6-foot privacy fence to enclose their rear yard. She stated that it will require a CUP because it varies in height, design and location from the current residential boundary regulations in the City Code. She showed the proposed location for the fencing and noted that the City Code does not allow a 6-foot boundary fence to be placed on residential properties that abut a public street. She explained that the Code would allow for a 4-foot fence in this location, but the applicant is requesting a 6-foot fence to give them more shielding and privacy in their backyard and to keep their dogs from barking at anybody on the path or driving by. She stated that her understanding is the dogs are quite large and the higher fence would also provide more security for them not to be able to jump the shorter fence. She stated that the variance setback is from 35 feet to 10 feet from the property line that abuts Smithtown Road. She stated that a 6-foot privacy fence under current Code would need to be 8 feet from both the rear and the interior side lot line and this proposal is for it to be on the property line. She stated that the City does allow fences to be placed directly on the property line with the written consent of the neighbors in a situation where a CUP is not needed. She explained that the proposed fence also varies from code in its design because it is requested to be a total privacy fence versus the 25% open from the ground to the top of the fence. She stated that staff found that the proposed fence does not cause any adverse effects on the general welfare, public healthy and safety. Commissioner Gorham clarified that the setbacks can be amended with letters from the neighbors. Planning Technician explained that in a situation where a CUP is not required, they do allow people to construct fences on the property line if they have written consent from the neighbors. She stated that she believes that the applicant has spoken to the neighbors and have indicated that they are comfortable with the fence being on the property line. Commissioner Gault asked if written consent had been provided in this instance. Commissioner Gorham stated that written consent isn't necessarily needed in this case, but the spirit of it is that the neighbors would consent to it because this is a CUP. CITY OF SHOREWOOD PLANNING COMMISSION MEETING DECEMBER 1, 2020 Page 6 of 13 Commissioner Gault stated that would imply that if there is a CUP you need less agreement from your neighbors than if you don't have a CUP. Planning Technician Notermann explained that in this instance, the neighbors were notified that this was coming in front of the Planning Commission and no comments were received. Commissioner Gault stated that they also did not provide written consent, so in his opinion, their inaction implies disagreement. Commissioner Gorham stated that for the last agenda item, the Commission said that the fact that they did not hear from the neighbors was a good sign. Commissioner Eggenberger noted that he thinks not hearing from them is different than them giving permission. Planning Director Darling noted that as a condition of approval, the Commission could require the consent of the neighboring property owners. Commissioner Gault stated that he drives along Smithtown Road daily and there is only one very old privacy fence along the whole stretch within the Shorewood boundary. He stated that everyone else along this stretch of road has provided privacy with shrubbery and he feels the proposed fence would be out of character with the roadway. Commissioner Riedel stated that the applicants are applying for a CUP for a special purpose fence and noted that with other CUPs there are specific requirements that have to be met. He asked if any of those are listed within the Code for special purposes fencing. Planning Technician Notermann stated that the City's fence regulations are extensive. She explained that the Code states that if someone wants a fence that varies in any way from the noted regulations, they should follow the CUP process to construct a fence. Commissioner Riedel stated that he would agree that the fencing regulations are very specific. He stated that it appears that without specific conditions for granting the CUP, it is up to the discretion of the Commission to make a recommendation to Council. Commissioner Eggenberger asked about the setback and whether the fencing came back just enough not to obstruct the view from 24905 Club Lane. Planning Technician Notermann stated that the setback is 35 feet from their property line and they are proposing 10 feet from their property line which is 30 feet from the road. She noted that the setback is measured from the property line. Planning Director Darling explained that the reason Planning Technician Notermann is measuring from the street is so the Commission has an idea about how far back it will be from Smithtown Road when considering whether or not it would obstruct visibility from the neighbor's driveway. Commissioner Gault asked if the City had seen a landscaping plan. Planning Technician Notermann stated that requirement is only for arterial streets, and Smithtown is a collector street. CITY OF SHOREWOOD PLANNING COMMISSION MEETING DECEMBER 1, 2020 Page 7 of 13 Commissioner Gault stated that regardless of the official designation, anyone who drives on Smithtown knows that it is an arterial street. Roberta Aronson, 5730 Club Lane, stated that they have spoken with their neighbor to the west and he agreed to their request for a privacy fence and has no problems with it. She stated that they did not get it in writing, but could easily do that. She stated that the owner of the property to the south has also agreed to their proposal for a privacy fence. She stated that it is currently owned by the builder, but the people who are purchasing the lot have dogs so they would also like a privacy fence and have no objections. She stated that in their situation, if their dogs don't see people, they don't bark. She stated that they don't want that to be an annoyance to other people or cause problems when people are walking on the sidewalk. Commissioner Eggenberger asked if they could block the view to the sidewalk with a 4-foot-tall fence if it was moved further in. Ms. Aronson stated that she does not think so because they have an 80-pound goldendoodle. She stated that they are planning to put in shrubbery as well as well as some 5-foot arbor vitae to shield the yard, but it will take a few years for those to mature. Roger Aronson, 5730 Club Lane, explained that the grade of the lot is reasonably flat, so even if they push the fence in a bit anybody over 5 feet tall would be visible. He stated that their goldendoodle is a protective dog and when he sees people, he barks. He stated that their proposed fence will minimize the barking or charging up to a 4-foot-tall fence and people being on the other side wondering what would happen and potentially veering into the street. He stated that a 6-foot fence would alleviate that issue and feels the people on the sidewalk would have a more enjoyable time walking or riding their bikes. Chair Maddy opened the public hearing at 8:00 p.m., there being no comment, he closed the public hearing. Chair Maddy stated that in looking over the Code, he had a question for Planning Director Darling about who is the City's Horse Inspector. Planning Director Darling stated that she does not recall and noted that it may be City Clerk Thone because she issues the permits to have a horse. Chair Maddy stated that he had no idea that the City had a Horse Inspector. Planning Director Darling noted that there is only 1 horse in the City, so it is not a busy position. Commissioner Riedel stated that the Code is written to allow for a lot of flexibility, but stated that he agreed with Commissioner Gault that this doesn't seem like a special purpose fence. He stated that according to the Code, it says that special purposes fences are either fences for special purposes and fences differing in construction height or length. He stated that there is an "and" in the Code which means the CUP can be granted by the Council for any fence that differs in height of length outside of the Code parameters, which means, it is really up to the discretion of the Planning Commission to make a recommendation to the Council. Commissioner Gault stated that he if it would say "or" rather than "and", so he thinks this would apply to a special purpose fence that also differs in construction height or length and not a non - special purpose fence. He asked what defines this particular fence as a special purpose fence. CITY OF SHOREWOOD PLANNING COMMISSION MEETING DECEMBER 1, 2020 Page 8 of 13 He stated that keeping dogs from barking or shielding them from visibility is not something he sees as a special purpose. Commissioner Gorham asked if there was a section of the code that speaks to fences differing in construction height or length, or whether this was the section of Code that you go to if you want to build a taller fence. Commissioner Riedel stated that he is looking through the Code and all that he can find is that everyone who builds a fence needs a permit, and there is an extensive set of requirements, however if you want a fence that doesn't meet those requirements people must apply for this CUP. Planning Director Darling confirmed that this was the correct understanding Commissioner Riedel stated that it appears as though this category is a catch-all. He stated that he can remember a discussion from three or four years ago regarding whether a hockey rink put up during the winter months constituted a fence or not. Commissioner Gault stated that he sees this as a residential district fence and not a special purpose fence which clearly states that there needs to be 25% openness and that there cannot be a 100% boundary of the property. Commissioner Riedel stated that he agrees that this is the equivalent of applying for a variance, but this is a CUP and the question hinges on whether this is a special purpose fence. He stated that English grammar makes it a bit ambiguous. He noted that if the Code did not repeat the word "fences" twice, then Commissioner Gault's interpretation would be correct. He stated that if you repeat the word "fence", the word `and', in a sense, becomes the word `or'. Commissioner Gorham stated that the title is special purpose fences. Commissioner Gault stated that he sees that paragraph applying only to special purpose fences. Ms. Aronson asked whether the fact that their dog is large enough to jump over a 4-foot fence onto Smithtown Road would be something that would be considered for a special purpose because it would ensure the safety of the vehicles as well as their pets. Commissioner Gault stated that he feels this is what invisible fences are for. Chair Maddy stated that he would agree that just because their dog is big does not mean that they do not have to follow the City's rules. Commissioner Gault stated there is a home on Virginia Cove that probably would have loved to have a 6-foot-tall 100% privacy fence because their pool is clearly visible from the sidewalk and the street. He explained that they have a 4-foot-tall, open, iron fence and they are addressing the visibility issue with shrubbery. Mr. Aronson asked if it was the privacy component that is most bothering the Commission. He stated that they had considered a 6-foot-tall fence with 25% lattice work at the top and asked if that would make a difference in the minds of the Commission. Commissioner Gault stated that code states that it would have to be 25% open from ground to the top of the fence. CITY OF SHOREWOOD PLANNING COMMISSION MEETING DECEMBER 1, 2020 Page 9 of 13 Chair Maddy stated that the intent of the code is to keep the neighborhoods and community open without big walls along the property lines. Ms. Aronson stated that the board on board fencing would be fine also and they could supplement with shrubbery for additional barriers. Chair Maddy stated that there is a big loophole in the code because arborvitae is not mentioned. He asked which side of the fence they were planning to plant them. Ms. Aronson stated that they had planned to plant them in their yard inside the fence Chair Maddy noted that once they mature, they will probably provide all the privacy they desire without violating any City codes. Planning Director Darling noted that the distance between where they are proposing the fence and their property line is all drainage and utility easement. She explained that when people ask her opinion, she suggests that they not plant trees in drainage and utility easements or public right of way. Commissioner Gault stated that as a City resident he would appreciate a softening of a wall of fence on the outside of the fence line. Ms. Aronson stated that they were concerned that as the arborvitae grew bigger it would encroach on the sidewalk, so they thought keeping it on their property would be the most respectful choice. Commissioner Riedel asked if it is determined that a CUP is not the correct route for this request, could they apply for a variance instead. Planning Director Darling stated that they could and her interpretation of the code is that this application does allow for an application for a CUP for any fence that varies from the height, design or location. Commissioner Riedel stated that he agrees with that interpretation. He noted that he understands that the Commission is not supposed to take into consideration precedent in their deliberations, but would like to know if there have been CUPs granted for fences in the past. Planning Director Darling noted that she has not seen any in the three years she has been with the City. She stated that she found some early CUPs but most of the people who have asked for a taller fence or a full privacy fence will back off of this request once they are told about the CUP process, the application fee, and the wait time. Commissioner Gorham stated that he understands why a taller fence may be better for their dog, but does not understand the desire to go all the way around with the fencing. He stated that if he were to agree to this request, he would want the design to be pared down. Ms. Aronson stated that they could agree to that. Commissioner Gorham stated that he would also like to have the approval of the neighbors in writing. CITY OF SHOREWOOD PLANNING COMMISSION MEETING DECEMBER 1, 2020 Page 10 of 13 Commissioner Gault stated that the fencing request appears to be a dog containment attempt rather than using something like invisible fencing. Mr. Aronson stated that they are familiar with invisible fencing and had it at a previous home. He stated that he is also thinking of the experience of the people on the street who see a dog running across the yard barking at them and are simply hoping that the dog will stop. He stated that their idea with the fence is that people won't have to wonder what will happen with the dog as they travel by. Commissioner Eggenberger stated that he keeps thinking about this being a CUP for a special purpose fence and it seems as though this is being done because the applicant has dogs, which does not make sense to him. Chair Maddy stated that he is not happy with the code language Commissioner Gorham stated that he is also not happy with the language. He asked if this could be on the slate the issues to discuss at a future meeting for things like whether there should be an "and" or an "or" in this language to clarify if this is a special purpose fence or if it is a fence that differs in construction. He stated that feels this language should be cleaned up. Planning Director Darling noted that it is very common for cities to have an out, so you can apply for a CUP for a different type of fence based on specific site circumstances. Commissioner Eggenberger asked what the conditional use would be in this situation. Commissioner Riedel stated that the label of CUP does not refer to it as a use that is conditioned for a time period but is rather a process and where permission is not automatically granted without the Planning Commission and Council approving it. Planning Director Darling clarified that CUPs are a permanent approval and they run with the land. She stated that once approved, the fence would not have to be taken down upon the death of the pet or when the Aronson's move. Commissioner Riedel suggested that the Commission recommend approval, but subject to two conditions: that not having the 25% openness only applies to the portion along Smithtown Road; that they provide written consent from the neighbors to have the fence located along the property line. Ms. Aronson stated that they would be open to those conditions Commissioner Gorham questioned whether the Commission will be asked to approve other requests similar to this one. He expressed concern that they will end up asking people how big their dog is, how much it weighs, how agile it is, and ask for a demonstration of it jumping as part of the approval process. Commissioner Gault stated that his concern is that this creates a walled back yard. Mr. Aronson stated that in talking to their neighbors to the south and to the west, it was not just that they were okay with them putting up the 6-foot privacy fence. He explained that they were both strongly in favor of it for their own reasons and were not just acquiescing with their idea. CITY OF SHOREWOOD PLANNING COMMISSION MEETING DECEMBER 1, 2020 Page 11 of 13 Ms. Aronson stated that they can do the board on board for the other three sides of the fence and leave Smithtown as more of a privacy fence, but she thinks their biggest priority is the 6-foot height. She stated that they have had one dog in the past who was hit by a car and it was very traumatic for them. Commissioner Gault asked if the 25% was meant to be a visibility issue because the board on board would still not be able to seen through. Planning Director Darling stated that it is and noted that there are specifications that can be sent to the applicants to indicate how far apart the boards have to be in order to qualify for the 25%. She noted that you can see through this type of fence at an angle and shared the specifications with the Commission. Commissioner Eggenberger asked if the dogs only barked when they saw someone Mr. Aronson stated that seeing someone would certainly get more of their attention than just hearing someone. Planning Director Darling shared a photo of a board on board fence with 25% openness. She noted another possibility would be to put lattice at the top to achieve the 25% figure. Commissioner Gault stated that he thought the lattice option was only for interior fence lines and not boundary fences. He read aloud a portion of the fence regulations and noted that he did not feel the board on board design showed by Planning Director Darling met code requirements. Chair Maddy asked what the difference is between and arterial street and a collector street. Planning Director Darling stated that she does not have the official language in front of her, but in her mind, it does meet the definition of an arterial roadway, but the Comprehensive Plan has it designated as a major collector. Commissioner Riedel stated that he feels a CUP can be justified because this is a busy road and feels the intent is if you live on a busy road, you can have a 6-foot fence on that road. He stated that he feels the CUP gives the Commission and the Council some discretion. He suggested allowing that along Smithtown Road, but the other 3 sides of the fence the applicant consider options for 4-foot fences. Planning Technician Notermann stated that she believes the applicant would be allowed to have the 6-foot fence along the south property line with only administrative approval. Planning Director Darling stated that as long as the fence is 25% open. Planning Technician Notermann agreed that it can be 6 feet tall as long as there is 25% open. Planning Director Darling stated that the way she interprets this information is that the applicant could also have a 6-foot fence up the 35-foot setback line of Smithtown Road. Ms. Aronson reiterated that they would be fine having the 25% open fencing around their yard The Commission reviewed the full request by the applicant. CITY OF SHOREWOOD PLANNING COMMISSION MEETING DECEMBER 1, 2020 Page 12 of 13 Commissioner Gault noted that he would like to see a landscape plan for the exterior side of the fence. He suggested that the Commission approve the CUP, with the stipulation that 100% of the fence be board on board, that written agreement from the 2 neighboring properties is provided, and that there be landscaping along the exterior of the fence along Smithtown Road. Chair Maddy stated that they will need to be careful that the shrubbery is not too big because there are utility easements in the area. Commissioner Riedel stated that it would just need to be something that would break up the monotonous look of the fence and believes the intent of this entire ordinance is so you don't have a wall of fences as you drive down a nice street. Chair Maddy reopened the public hearing at 8:47 p.m. There being no public comment, Chair Maddy closed the public hearing. Gault moved, Riedel seconded, recommending approval of the CUP request for 5730 Club Lane, with the following conditions: that 100% of the fence be board on board; that the neighbors to the west and south provide written consent for the fence being on the property line; and that the applicant submits a landscaping plan for the exterior of the fence along Smithtown Road, in compliance with regulation 1201.03, Subd. 2G to be approved by staff. Roll Call Vote: Ayes — Gorham, Gault, Riedel; Nays - Eggenberger. Maddy. Motion passed 3/2. 5. REPORTS • Council Meeting Report Planning Director Darling gave an overview of the recent Council Work Session to discuss the Comprehensive Plan. She stated that they have suggested revisions based on direction from the Met Council. She explained that the Council has referred it back to the Planning Commission to hold a public meeting to discuss the changes. She stated that this will be on the next agenda. She gave an overview of the November 23, 2020 Council meeting as outlined in the minutes. • Draft Next Meeting Agenda She explained that the Comprehensive Plan discussion will be at the next Commission meeting. Commissioner Gault asked if there has been a date set for the Commission to have another joint meeting with the Park Commission to continue the fire lane discussion. Planning Director Darling stated that in addition to the Comprehensive Plan there will be a PUD development plan and a preliminary plat for a 14-lot subdivision, 2 variances, and a CUP permit for a telecommunication antennas. She stated that the agenda was so full, they were not able to host the joint Planning/Park Commission meeting to discuss the fire lanes on that meeting. She stated that it will work better at the January Park Commission meeting date on January 12, 2020. Planning Director Darling noted that there are a few Commissioners whose terms are expiring and noted that she had sent them applications for another term. 6. ADJOURNMENT CITY OF SHOREWOOD PLANNING COMMISSION MEETING DECEMBER 1, 2020 Page 13 of 13 Gault moved, Riedel seconded, adjourning the Planning Commission Meeting of December 1, 2020, at 9:03 P.M. Roll Call Vote: Ayes — all. Motion passed 5/0. CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD, SHOREWOOD, MINNESOTA 55331-8927 · 952.960.7900 www.ci.shorewood.mn.us · cityhall@ci.shorewood.mn.us MEMORANDUM TO: Planning Commission, Mayor and City Council FROM: Emma Notermann, Planning Technician MEETING DATE: January 5, 2021 REQUEST: Variance to setbacks for a firepit/patio APPLICANT: Roger and Roberta Aronson LOCATION: 5730 Club Lane REVIEW DEADLINE: March 22, 2021 LAND USE CLASSIFICATION: Low Density Residential ZONING: R-1C FILE NUMBER: 20.18 REQUEST: Roger and Roberta Aronson have requested a variance to install a patio with a firepit in their backyard at 24 feet from the side property line abutting a public street where 35 feet is required. Notice of this application and the public meeting was mailed to all property owners within 500 feet of the property at least 10 days prior to the meeting. BACKGROUND The property is zoned R-1C, Single Family Residential and contains approximately 19,856 square feet of area. The north side of the property runs along Smithtown Road. Applicable Code Sections: City Code section 1201.12 subd. 5. regulates the lot requirements and setbacks for the R-1C, Single-Family Residential District. Section 1201.12 subd. 5. d. Setbacks: (1) Front yard: Not less than 35 feet; (2) Rear yard: Not less than 40 feet; (3) Side yard: Not less than 10 feet on each side nor less than 35 feet on a side yard abutting a street. City Code section 1201.03 subd. 3. c. 5. Allows patios to extend 4.5 feet into the rear yard setback. Page 2 Additionally, fire pits need to be located at least 25 feet from any structure, as regulated by the Minnesota State Fire Code. ANALYSIS The applicant’s narrative is attached and indicates that the property owners propose to add a firepit to their backyard. The firepit/patio would have a diameter of 13 feet. It would encroach into the required side yard setback by 11 feet. The applicants plan to have a four-foot chain link fence on the north (side) property line. The fire pit/patio is 36 feet from the rear property line, where 40 feet is required. Patios are allowed to encroach into a rear setback by 4.5 feet, so a variance is not needed for the rear yard setback. Additionally, the fire pit would meet the requirements of being at least 25 feet from any structure as submitted in the plans. The Applicant states that the placement of the fire pit/patio is due to the location and size of the rain garden and infiltration area, as shown on the attached plans. The size of the rain garden is based on the amount of impervious surface coverage for their newly constructed home and additional backyard patio space. Their landscaping contractor installed the fire pit/patio last fall because he was unaware that the setbacks applied to the fire pit/patio. Variance Criteria: Section 1201.05 subd.3.a. of the zoning regulations sets forth criteria for the consideration of variance requests. These criteria are open to interpretation. Staff reviewed the request according to these criteria as follows: 1. Intent of comprehensive plan and zoning ordinance: The property owner would continue to use the property for residential purposes and proposes no uses on the site that would be inconsistent with either the intent of the residential land use classification or the district’s allowed uses. 2. Practical difficulties: Practical difficulties include three factors, all three of which must be met. a. Reasonable: The applicant has proposed an outdoor gathering place (patio) with a fire pit. This is a reasonable residential use on the property. b. Unique Situation vs. Self-Created: Th original property was recently subdivided and developed into two residential lots. The rain garden and infiltration area and size are a direct result of the impervious surface coverage that the applicants created during the initial development. The applicant states in their application that the size and placement of the rain garden and infiltration area is the reason for the placement of the fire pit/patio. Staff finds this reasoning to be a self-created situation that does not constitute a unique situation. c. Essential Character: The average setback for most development on Smithtown Road is 35- 50 feet. Allowing a gatherings space that is 10 feet closer to the road than any other allowed use could alter the essential character of the neighborhood. 3. Economic Considerations: The applicant has not proposed the variance solely based on economic considerations, but to enhance the livability of the home. Page 3 4. Impact on Area: The property owner is not proposing anything that would impair an adequate supply of light and air to an adjacent property, increase the risk of fire, or increase the impact on adjacent streets. There will be a board-on-board fence separating the fire pit/patio from the neighbor to the west (rear yard.) The pedestrian path along Smithtown Road creates a wider than typical right-of-way of 37 feet to the north between the sidewalk and the fire pit. 5. Impact to Public Welfare, Other Lands or Improvements: Staff finds the fire pit could be detrimental to the public welfare if it is out of character with the area. 6. Minimum to Alleviate Practical Difficulty: Staff finds the variance request is not the minimum to alleviate practical difficulty because the applicant has alternative options to have a fire pit and/or patio in their backyard. The size of the fire pit/patio could be decreased, or the applicant could use a portable fire pit and chairs over lawn to achieve a similar gathering area in their backyard. FINDINGS/RECOMMENDATION Staff finds the variance proposal does not meet the criteria above and recommends denial of the variance while acknowledging that the variance criteria are open to interpretation. Consequently, the Planning Commission could reasonably find otherwise. Should the Planning Commission recommend approval of the variance, staff recommends that the applicant be required to acquire all necessary permits prior to construction. ATTACHMENTS Location map Applicants’ narrative and plans Page 4 5730 Club Lane Location Map CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD, SHOREWOOD, MINNESOTA 55331-8927 · 952.960.7900 www.ci.shorewood.mn.us · cityhall@ci.shorewood.mn.us MEMORANDUM TO: Planning Commission, Mayor and City Council FROM: Marie Darling, Planning Director MEETING DATE: January 5, 2021 REQUEST: Variance to setback from Lake Minnetonka APPLICANT: Christian Dean Architecture LOCATION: 454 Lafayette REVIEW DEADLINE: March 23, 2021 LAND USE CLASSIFICATION: Minimum Density Residential ZONING: R-1A/S FILE NUMBER: 20.23 REQUEST: The applicant requests a variance to the required 50-foot setback to construct a patio on the north side of the home, add a second story with an encroachment staircase that would be 28.6 feet from the ordinary high water level (OHWL) of Lake Minnetonka. Notice of this application and the public meeting was mailed to all property owners within 500 feet of the property at least 10 days prior to the meeting. BACKGROUND Context: The lot was created in 1943 as part of the Auditor’s Subdivision #313. The home was constructed in 1955, prior to the modern shoreland regulations. A portion of the property is within a floodplain and entirely within the shoreland district for Lake Minnetonka. No wetland is present on the site according to either the national wetland inventory or the Hennepin County wetland inventory. The property contains mature trees, but the proposed project is not subject to the tree preservation policy. No trees are proposed to be removed for the proposed project. Page 2 The shed on the property is legally nonconforming. The adjacent properties are all developed with single-family homes and zoned R-1A. Applicable Code Sections: Section 1201.26 subd. 5. a. of the zoning regulations require all structures except stairs, lifts, piers and docks to be setback 50 feet from the OHWL of Lake Minnetonka. Where development exists on both sides of a proposed building site, building setbacks may be altered to more closely conform to adjacent building setbacks. There is only one adjacent home and that home was constructed in 1920 at 44.7 feet from the OHWL, according to the applicant’s survey (attached). The proposed patio and addition would both be closer than that home to the OHWL. Impervious Surface Coverage Required Existing Proposed Impervious Surface Coverage 25 % (max.) 25.8 % 24.5 % The applicant has proposed to remove a large portion of the bituminous driveway and install a pervious system instead. The applicant would be required to provide details of the pervious surfaces prior to issuance of any permits for the property and the system must allow water, air and roots to penetrate through the materials. Most pervious systems require subsurface corrections to be considered pervious. ANALYSIS The applicant’s narrative is attached and indicates that the property owners propose to add a porch to the north side of the home, add a second story over the easterly portion of the home (that meets the required setbacks), remove the existing roof over the westerly portion of the home, add a flat roof and a roof deck. The roof deck would overhang the southwest corner of the home and would be right up to the existing walls of the home, where the previous roof was slanted. The southwest corner of the current home is 29.5 feet from the OHWL and the new rooftop addition would be 28.6 feet. The plans are attached. Variance Criteria: Section 1201.05 subd.3.a. of the zoning regulations sets forth criteria for the consideration of variance requests. These criteria are open to interpretation. Staff reviewed the request according to these criteria as follows: 1. Intent of comprehensive plan and zoning ordinance: The property owner would continue to use the property for residential purposes and proposes no uses on the site that would be inconsistent with either the intent of the residential land use classification or the district’s allowed uses. 2. Practical difficulties: Practical difficulties include three factors, all three of which must be met. Staff finds the practical difficulties are related to the age of the home and the application of modern setbacks to an existing home. a. Reasonable: The applicant has proposed reasonable residential uses on the property. Page 3 b. Unique Situation vs. Self-Created: The situation is unique, as the home was constructed under different regulations. Allowing a patio and rooftop deck encroachment allows the property owner to update the home. c. Essential Character: The proposed improvements would not be out of character with the home or other improvements in the neighborhood. Staff notes that the roof top deck is proposed on the west side of the home with the second story addition providing a privacy buffer between the open deck and the existing home to the east. Staff notes that the patio proposed is closer than the adjacent structure to the OHWL and recommends that the patio be reduced in size so that it is no closer than 44.7 feet to the OHWL. d. Economic Considerations: The applicant has not proposed the variance solely based on economic considerations, but to enhance the livability of the home. e. Impact on Area: The property owner is not proposing anything that would impair an adequate supply of light and air to an adjacent property, increase the risk of fire, or increase the impact on adjacent streets. f. Impact to Public Welfare, Other Lands or Improvements: Staff finds the additions would not be detrimental to the public welfare. g. Minimum to Alleviate Practical Difficulty: With the condition that the patio on the north side of the home be reduced to no closer than 44.7 feet to the OHWL, staff finds the variance request is the minimum necessary to alleviate the practical difficulties on the property. FINDINGS/RECOMMENDATION Staff finds the variance proposal meets the criteria above and recommends approval of the variance while acknowledging that the variance criteria are open to interpretation. Consequently, the Planning Commission could reasonably find otherwise. Should the Planning Commission recommend approval of the variance, staff recommends that the applicant be required to acquire all necessary permits prior to construction, and that the following conditions be included: o Prior to issuance of the permits, the applicant shall revise the site plan to correct the OHWL elevation label from 924.4 to 929.4  Reduce the size of the patio on the north side of the home to be no closer than 44.7 feet to the OHWL  Add a 931.5 elevation line to the survey  Submit copies of any permits required from the MCWD for the addition and changes to the site  Submit information on the permeable driveway materials proposed ATTACHMENTS Location map Applicants’ narrative and plans S:\\Planning\\Planning Files\\Applications\\2021 Cases\\454 Lafayette Ave Variance\\PC memo.docx CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD, SHOREWOOD, MINNESOTA 55331-8927 · 952.960.7900 www.ci.shorewood.mn.us · cityhall@ci.shorewood.mn.us MEMORANDUM TO: Planning Commission, Mayor and City Council FROM: Marie Darling, Planning Director MEETING DATE: January 5, 2021 REQUEST: Variance to setback from OHWL of Lake Minnetonka APPLICANT: Lecy Brothers LOCATION: 4320 Dellwood Lane REVIEW DEADLINE: April 3, 2021 LAND USE CLASSIFICATION: Low Density Residential ZONING: R-1C/S FILE NUMBER: 20.23 REQUEST: The applicant requests a variance to the setback from the ordinary high water level (OHWL) of Lake Minnetonka in order to add and widen the steps and stoops into a non- conforming home. Notice of this application and the public meeting was mailed to all property owners within 500 feet of the property at least 10 days prior to the meeting. BACKGROUND Context: The lot was created around 1979 as part of Albitz Addition and is a consolidation of two lots. The home was constructed in 1987-8. In 1996, the City Council approved a CUP to allow a gazebo which would increase the accessory space over 1200 square feet. The patios were not present at that time and the impervious surface coverage was noted at 24.95 percent. Page 2 There is no wetland on the property, but the property is within a floodplain and the shoreland district. The property contains mature trees, but the proposed project is not subject to the tree preservation policy. No trees are proposed to be removed for the proposed project. The OHWL for Lake Minnetonka is currently at 929.4 and the floodplain elevation is 931.1. The Shoreland Regulations were adopted in 1987. The shoreland regulations were not adopted when the home at 4320 Dellwood Lane was constructed, and the zoning regulations included a setback of 50 feet to the lake (not the OHWL). The survey submitted when the home was built (graphic - right) indicates that the setback was measured from the water level of the lake, which was at 927.9 feet in 1987. The current survey (attached) indicates the home is built as close as 38 feet from the OHWL of Lake Minnetonka. The adjacent properties are all developed with single- family homes and zoned R-1C\\S. Applicable Code Sections: Section 1201.26 subd. 5. a. of the zoning regulations require all structures except stairs, lifts, piers and docks to be setback 50 feet from the OHWL of Lake Minnetonka. Where development exists on both sides of a proposed building site, building setbacks may be altered to more closely conform to adjacent building setbacks. The adjacent home at 4300 Dellwood Lane was constructed at 41 feet to the edge of the deck, which was the closest projection toward the lake. (That home was also constructed under the previous zoning regulations.) As the home at 4320 Dellwood Lane is already closer than the adjacent home, a variance would be required to add more projections toward the lake that would be closer than 41 feet. Impervious Surface Coverage Required Existing Proposed Impervious Surface Coverage 25 % (max.) 32.38 % 31.91 % At some point after the approval of the gazebo in 1996, a previous property owner added patios in two locations on the property within the lake setback as well as other improvements to the property. As a result, the property is currently over the maximum impervious surface coverage allowed. Although the applicant has proposed a reduction to offset the additional stoop impervious surface coverage, staff recommends additional removals beyond those proposed. By removing the two nonconforming patios, the property would be around 30.5 percent impervious. This would not bring the property down to the maximum 25 percent impervious surface coverage, but the action would reduce the non-conformities on the property in terms of both impervious surface coverage and setbacks. Page 3 ANALYSIS The applicant’s narrative is attached and indicates that the property owners propose to replace the aging stoops and add additional stoops in front of new doors on the west and the northernmost point of the home. The doors were replaced by a previous property owner, but the stoops were never widened to match the doors. The proposed stoops would all be uncovered, the stoops on the east side of the home would be conforming to a 41-foot setback (consistent with the adjacent home to the south). The stoops on the west and north sides would not extend as far into the setback, they would be wider than the existing stoops. Variance Criteria: Section 1201.05 subd.3.a. of the zoning regulations sets forth criteria for the consideration of variance requests. These criteria are open to interpretation. Staff reviewed the request according to these criteria as follows: 1. Intent of comprehensive plan and zoning ordinance: The property owner would continue to use the property for residential purposes. They propose no uses on the site that would be inconsistent with either the intent of the residential land use classification or the district’s allowed uses. The removal of additional impervious surface coverage is consistent with the intent of the ordinance to reduce and eliminate non-conformities where possible. 2. Practical difficulties: Practical difficulties include three factors, all three of which must be met. Staff finds that the practical difficulties for the property are related to the topography. a. Reasonable: The applicant has proposed reasonable residential uses on the property. b. Unique Situation vs. Self-Created: The situation is unique as the home was constructed under different regulations and allowing stoops provides for safe egress into and out of the existing home. c. Essential Character: The stoops would not be out of character and are a customary improvement to provide safe passage in and out of homes. 3. Economic Considerations: The applicant has not proposed the variance solely based on economic considerations, but to enhance the livability of the home. 4. Impact on Area: The property owner is not proposing anything that would impair an adequate supply of light and air to an adjacent property, increase the risk of fire, or increase the impact on adjacent streets. 5. Impact to Public Welfare, Other Lands or Improvements: Staff finds the deck addition would not be detrimental to the public welfare. The improvements would be customary addition and virtually invisible to other homeowners. The removal of the non-conforming patios would provide consistency with other properties around the lake. 6. Minimum to Alleviate Practical Difficulty: Staff finds the variance request is the minimum necessary to alleviate the practical difficulties on the property. Page 4 FINDINGS/RECOMMENDATION Staff finds the variance proposal meets the criteria above and recommends approval of the variance while acknowledging that the variance criteria are open to interpretation. Consequently, the Planning Commission could reasonably find otherwise. Should the Planning Commission recommend approval of the variance, staff recommends that the applicant be required to acquire all necessary permits prior to construction in addition to the following:  Prior to the issuance of any permits for the property the applicant shall remove the two non- conforming patios and the other impervious surfaces proposed for removal and request an inspection to confirm. ATTACHMENTS Location map Applicants’ narrative and plans S:\\Planning\\Planning Files\\Applications\\2021 Cases\\4320 Dellwood Lane Variance\\PC memo.docx