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06-07-16 Planning Comm Agenda CITY OF SHOREWOOD COUNCIL CHAMBERS PLANNING COMMISSION MEETING 5755 COUNTRY CLUB ROAD TUESDAY, 7 JUNE 2016 7:00 P.M. A G E N D A CALL TO ORDER ROLL CALL / (LIAISON) SCHEDULE JOHNSON (Apr) ______ DAVIS (Mar) ______ RIEDEL (tbd) ______ MADDY (May) ______ BEAN (Jun) ______ APPROVAL OF AGENDA APPROVAL OF MINUTES 3 May 2016  1. 7:00 P.M. PUBLIC HEARING – C.U.P. FOR REMOVAL OF OVER 400 CUBIC YARDS OF SOIL AND DEPOSITING OVER 100 CUBIC YARDS OF FILL Applicant: Thomas Wartman Location: 27135 and 26985 Edgewood Road 2. PUBLIC HEARING – APPEAL OF ADMINISTRATIVE DETERMINATION OF NUMBER OF BOATS ALLOWED AT NONCONFORMING DOCK (continued from 3 May 2016) Appellant: Radisson Road Easement Holders Location: 5540 Shore Road (Lot 11) 3. PUBLIC HEARING – ZONING CODE TEXT AMENDMENT REGARDING ALTERNATIVE ENERGY REGULATION (continued from 3 May 2016) 4. PUBLIC HEARING – REZONE PROPERTY FROM R-2A, SINGLE & TWO-FAMILY RESIDENTIAL TO C-1, GENERAL COMMERCIAL (continued from 3 May 2016) Applicant: John Benjamin Location: 24250 Smithtown Road 5. MCC FINAL PLAN – REVIEW DEVELOPMENT AGREEMENT 6. DISCUSS SCHEDULING A SPECIAL MEETING ON 21 JUNE 2016 REGARDING OPPIDAN T.I.F. Planning Commission Meeting Agenda 7 June 2016 Page 2 7. DISCUSS JULY MEETING DATE 8. MATTERS FROM THE FLOOR 9. OLD BUSINESS / NEW BUSINESS 10. DRAFT NEXT MEETING AGENDA 11. REPORTS Liaison to Council  SLUC  Other  12. ADJOURNMENT CITY OF SHOREWOOD COUNCIL CHAMBERS PLANNING COMMISSION MEETING 5755 COUNTRY CLUB ROAD TUESDAY, MAY 3, 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; and, Planning Director Nielsen Also present: Mayor Zerby Absent: None APPROVAL OF AGENDA Director Nielsen noted the applicant asked to postpone Item 3.A on the agenda. Bean moved, Maddy seconded, approving the agenda for May 3, 2016, as amended. Motion passed 5/0. APPROVAL OF MINUTES  April 19, 2016 Maddy moved, Riedel seconded, approving the Planning Commission Meeting Minutes of April 19, 2016, as presented. Motion passed 5/0. 1. PUBLIC HEARING – CONDITIONAL USE PERMIT FOR ACCESSORY SPACE OVER 1200 SQUARE FEET Applicant: Dawn and Mike Ziegler Location: 25040 Yellowstone Trail Chair Davis opened the Public Hearing at 7:02 P.M. noting the procedures used in a Public Hearing. 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 a conditional use permit (C.U.P.) for accessory space over 1200 square feet. Director Nielsen explained Dawn and Mike Ziegler have proposed to construct an attached garage and room additions on their property located at 25040 Yellowstone Trail. The property is zoned R-1A, Single- CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 2 of 14 Family Residential and contains 84,829 square feet of area. 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 in floor area. The Zoning Ordinance allows that by C.U.P. which the Zieglers have applied for. The Zieglers propose to tear down their existing garage behind their house, remove the existing driveway that comes in from Yellowstone Trail, remove a shed, build an addition where the existing garage is, and add a new garage on the north end of the property and access it off of Spruce Hill Court. The proposed garage would contain 1500 square feet of floor area. The existing gazebo, which will remain on the site, has 342 square feet of floor area. That would bring the total area of accessory space on the site to 1842 square feet. With regard to the analysis of the case, Nielsen noted Section 1201.03 Subd. 2.d.(4) of the Zoning Code prescribes criteria for granting a C.U.P. for accessory space over 1200 square feet. He reviewed how the applicant’s plan complies with the criteria. 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 including the proposed addition). 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. 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. Nielsen stated the applicant’s plans are consistent with the Code requirements for accessory space. Therefore, staff recommends approval of the C.U.P. If the Planning Commission makes a recommendation on this request it would be considered by Council on May 23, 2016. Commissioner Bean asked if there are any timing restrictions with regard to moving the existing driveway before the new one is constructed. He then asked if the address would then become Spruce Hill Court. Director Nielsen clarified the address can remain as is; the choice is up to the applicants. Mike Ziegler, 25040 Yellowstone Trail, noted he and his wife would like to keep their current address. He stated they would like to keep the existing driveway as long as they can. The new driveway would be class 5 rock for a period of time (preferably one year) to let the ground settle before putting asphalt down. Commissioner Johnson asked if the existing driveway would be removed while the applicant is using the class 5 rock driveway. Mr. Ziegler confirmed that and stated that keeping the existing driveway during construction would reduce some damage to the site. Seeing no one present to comment on the case, Chair Davis opened and closed the Public Testimony of the Public Hearing at 7:09 P.M. CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 3 of 14 Riedel moved, Maddy seconded, recommending approval of the conditional use permit for accessory space over 1200 square feet for Mark and Dawn Ziegler, 25040 Yellowstone Trail. Motion passed 5/0. Chair Davis closed the Public Hearing at 7:10 P.M. 2. PUBLIC HEARING – APPEAL OF ADMINISTRATIVE DETERMINATION OF NUMBER OF BOATS ALLOWED AT NONCONFORMING DOCK Applicant: Radisson Road Easement Holders Location: 5540 Shore Road (Lot 11) Chair Davis opened the Public Hearing at 7:11 P.M., noting the process will be the same as for the previous item. She stated during this Public Hearing the Planning Commission is going to consider an appeal of administrative determination of number of boats allowed at nonconforming dock at 5540 Shore Road (Lot 11). Director Nielsen explained early this year the staff was asked by some of the Lot 11 easement owners (the appellant) to provide a formal determination as to how many boats could be kept at the Lot 11 easement dock. The dock has been there for a many, many years. Lot 11 is a parcel of land that was set aside in the Radisson Addition as somewhat of a common open bathing beach for use by the residents of the Radisson Addition. Over the years there have been different court cases about the Lot. The most recent court decision defined the easement on the Lot; the original easement did not specify what portion of the Lot the residents had a right to use. The easement is essentially 10 feet wide along the easterly lot line. The portion of the easement along Christmas Lake goes from the lakeshore up to a barbeque pit. The court defined that as the area the easement holders had a right to use. The dock is located off the southwesterly corner of the property. The City received a complaint that a new boat was being docked at the Lot 11 easement dock. Nielsen called the owner and told them they cannot increase the use of that dock. There had been two boats docked there for a number of years. To increase the number of boats would be a zoning violation. Staff determined it was a nonconforming use of property. The City Code states that in order to have a dock there needs to be a house on the property. Accessory uses are intended for the residents living on the property. The woman who wrote the original request, Paula Callies, takes issue with that determination. In his determination letter dated March 31, 2016, Nielsen informed the easement holders that it is a nonconforming use of property. To go from two boats to four boats (which is what they propose) is considered to be an expansion of use of the property. The letter cites a number of provisions in the Ordinance that talk about nonconforming uses, why they are regulated, and not allowing the expansion of nonconforming uses. He thought staff’s determination was backed up by the Lake Minnetonka Conservation District (LMCD) code, which the Shorewood Code adopts by reference, to cover all of the lakes in Shorewood. The City did not want to rewrite all of the various dock requirements. The Shorewood Code uses the LMCD rules. The LMCD code talks about allowing four boats; that can be done provided there is a residence on the property and the boats all being registered to those residents. He reiterated the appellant takes issue with the determination staff has made. He noted the appellant submitted a great deal of information from the court case. He clarified that no one on City staff is trying to take away any right the easement holders have. The dock is considered to be grandfathered in. As long as the dock is used in the same matter that it was used over the years it can remain that way. CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 4 of 14 He explained some of the most notable parts of the court material submitted talk about the rights of the easement holders which include having a dock. It is pointed out in one of the documents submitted that “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.” Further on in that paragraph it states “Further, it is obvious that any such rights, which exist, are subject to regulation and limitation by the appropriate governing bodies.” Another document states “In addition, there is nothing in the trial court order which purports to supersede any applicable local law on the subject.” That is the City’s position. The City thinks the court did not grant any number of slips. It simply stated there is a dock there and the easement holders have a right to use it subject to local laws. He reiterated Ms. Callies takes issue with staff’s determination on the nonconforming use issue. He stated it is a vacant lot used for recreational purposes. He reiterated the City Ordinance requires that to have a dock in the first place there has to be a house on the property. A dock is an accessory use to a house. Going from two to four boats is an expansion of a nonconforming use. He stated that earlier in the afternoon the City received new material that suggests that the City does not have a right to regulate public water at all. He forwarded that to the City Attorney for his review. The Attorney has not had time to respond to that. As a result of that, he suggested the Planning Commission take public testimony during this Public Hearing and continue the Hearing to the Commission’s June 7 meeting to allow the City Attorney time to respond to the recent letter from Ms. Callies. Paula Callies, 20465 Radisson Road, noted she submitted the initial letter to Director Nielsen asking for determination on behalf of herself, her husband and the other easement owners. She stated the easement owners are trying to be proactive rather than be served with a zoning violation. They sought direction from the City. She then stated there are other people in attendance who will provide more history on this matter. She stated she would summarize some of the documents she has submitted. She noted that she and her husband have lived in Shorewood for about the last 19 years. She also noted she is a city attorney and had at one time been a member of the Shorewood City Council, the Shorewood Planning Commission and the Parks Foundation. She explained Lot 11 is a unique situation and it has existed since the 1940s. It has always been used for a recreational purpose. While Shorewood may consider it a nonconforming use, it is the use the property has been put to. There has not been a house on Lot 11. The dock has been shared by the easement owners. Initially in the law suit that was described there were more easement owners. Some of them dropped their ownership in the easement by default. Currently there are 14 – 15 people who have easement rights on Lot 11. Therefore, Lot 11 is subject to the owners’ use and easement rights. She clarified the only issue before the Planning Commission and ultimately the City Council has to do with the number of boats. The other uses for the easement are not part of the discussion. She explained that upon her further review she does not think City of Shorewood has any jurisdiction over zoning and regulations of boats on Christmas Lake. Christmas Lake is public water and was determined to be so by the Minnesota Department of Natural Resources (DNR). The DNR regulates public waters unless there has been special authorization by legislature. Legislature created the Lake Minnetonka Conservation District (LMCD) in 1967 or 1969. The LMCD was specifically created to regulate Lake Minnetonka. The legislature also created the White Bear Lake Conservation District. Cities CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 5 of 14 only act through powers granted to them by the legislature. The legislature did not give cities the authority to regulate public bodies of water except as they specifically provided. There is no authority given to the City of Shorewood to regulate Christmas Lake which is partially located in the City of Chanhassen. In order for municipalities to regulate public waters they have to obtain approval for these types of regulations from the DNR. The City of Shorewood has not done that. The only regulations that have been approved regarding Christmas Lake have to do with water skiing; for example, wearing life jackets and the length of the tow rope. The City of Shorewood has no regulatory authority over the number of boats, type of boats and docks on Christmas Lake because it is public water. She reiterated the reason she thinks the zoning administrator’s determination should be overturned is because the City of Shorewood does not have the authority to be making the decision in the case. She stated that even if it were determined that Shorewood does have some authority to regulate the docks on Christmas Lake the operative word in the court decisions is “the applicable regulations” that apply to docks and boats. She does not think Shorewood Code is the applicable regulations; it defaults to the DNR. Even if under Shorewood regulations Lot 11 is considered to be a nonconforming use it is the dock that is nonconforming because there is no house associated with the Lot as she understands it. She explained the four boats they are requesting completely conform with Shorewood’s City Code which she pointed out in the documents she submitted. Four boats are allowed. When something is conforming it is not an expansion of the use. The dock may possibly be considered nonconforming but the number of boats being requested complies with City Ordinances. Therefore, the easement owners should be allowed to have four boats in total just like anyone else can have four boats. She noted this particular easement has some special features because of the court decisions and because of its history. The easement has always been used for docking a number of boats and for other recreational purposes by the easement owners. She clarified no one is talking about taking away rights from the property owners of Lot 11. The owners of Lot 11 are subject to rights of the easement owners. The owners of Lot 11 share in the easement rights but they do not have any more priority than any of the other easement owners. No one easement owner has more rights than another easement owner. The easement owners are governed by how the court decision set out the parameters of the easement and applicable regulations. She again stated if it is somehow determined that the City of Shorewood regulations apply the LMCD regulations do not apply in this case because the City Ordinances provide they can have the four boats. The regulations specifically say that unless otherwise provided these are the regulations that apply. The City Code states you can have four boats. She concluded her remarks by stating the appellant (some easement owners) is asking that the Zoning Administrator’s determination be reversed. They are requesting the Planning Commission recommend to the City Council that the Zoning Administrator’s determination be overturned and that the easement owners be allowed to have four boats at the Christmas Lake dock. Ms. Callies thanked the Planning Commission for its time. Chair Davis opened the Public Testimony portion of the Public Hearing at 7:28 P.M. Pat Aubrecht, 20575 Radisson Road, noted the property she and her husband Paul own, Lots 12 and 13, border Lot 11 on the west. Their title is listed as one of the respondents in the 1992 final Order Construing the Lot 11 Easement. She stated since 1984 they have seen and heard on a daily basis all activities on Lot 11 from their house, porch, yard and dock. They and others in attendance today do not agree with the historical accuracy pertaining to the number of boats moored at the Lot 11 easement dock. CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 6 of 14 During her and her husband’s 32 years of living next door to Lot 11 they have only witnessed two restricted motor boats tied to that dock. There have been two occasions when an easement owner had attempted to moor a boat on an illegal buoy but was always promptly removed by DNR Sheriff Water Patrol due to the inability to obtain a valid permit because they did not own the property. One thing that they all agree on today is that the Lot 11 easement dock and the number of boats moored at that dock are considered by Shorewood to be of nonconforming use because no resident or dwelling reside on the property. Shorewood has always maintained that only two boats are allowed. She noted that she and her husband Paul support Director Nielsen’s zoning determination for the reasons stated in their letter to Nielsen. They requested that the Planning Commission recommend denial of the appeal and uphold the intent of Shorewood zoning regulations that all nonconforming uses shall eventually be brought into conformity with no expansion. She thanked the Commission for its time. Tom Hayes, 21135 Christmas Lane, noted that a majority of the easement holders are not in favor of this petition. He stated there were 18 people who prevailed in the court case. But, there are many more people who on their deeds at Hennepin County say they have a deeded easement for egress and ingress or words like that for bathing uses. There are a lot of people who have a vested interest in what the property is like. Approving this will again create a level of chaos in determining which of the easement holders will get to have a boat. He asked if the person who owns Lot 11 gets to have a boat docked in front of his property. To him it is common sense that Director Nielsen’s and the Shorewood City Attorney’s opinions and the laws continue to prevail. Kris Hayes, 5560 Shore Road, noted the property she and her husband own borders Lot 11 on the east side and the entrance onto the easement is next to their home. Her husband’s family has had a 30 year history of year round residency on their property and another 30 years of summer residency prior to that. She noted that she and her husband strongly object to any increase in the number of boats moored at Lot 11 and that they support the rejection to the appeal. They look directly at Lot 11 and the easement from their home, yard and dock. They think that increasing the number of boats in such a contained area would negatively impact the serenity and beauty of the lakeshore they enjoy and look at daily. Increasing the number of boats would increase water safety issues for nearby swimmers and boaters and it would create additional parking and traffic pressures on narrow Shore Road. The addition of boats would make it feel like they live next to a marina because of the noise, traffic and appearance associated with that type of arrangement. For this reason they support the current and historical practice of having no more than two boats moored on the dock at Lot 11. She thanked the Planning Commission for its time. John Joyce, representing the owners of 5550 Shore Road, noted 5550 is the second property east of Lot 11. He stated his family has been associated with those properties since 1937 when his grandfather Joseph Hayes purchased those properties from the Radisson Inn. He explained Lot 11 was originally designated as an access for swimming and other recreation. He thought it was given to his grandfather to act as the caretaker of it. He noted his opposition to adding any boats at that dock; he thought two is more than adequate. He stated for all of this time the easement holders have not paid the tax on the land or had insurance on it. They simply are accessing the Lake. They do not maintain the property or take some form of ownership of it. Back in the 1970s on two occasions his uncle and his parents tried to split what is now 5550 and 5560 and to allow them to build a house which would incorporate Lot 11. That was denied by the City of Shorewood. The previous owner of the property now owned by the Willes tried to build a house on there and it was also denied. The owners of Lot 11 have not had full use of their property but they have had to allow the access. He again noted that those people associated with 5550 Shore Road are opposed to increasing the number of boats at the Lot 11 dock. CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 7 of 14 Steve Streed, the attorney of Elena Blanca Curt Garcia who is a two-thirds owner 20430 Radisson Road, noted Mark Garcia is a one-third owner of that property. They are mother-in-law and son-in-law. He stated they had not been notified of the appeal or of the original petition even though they have easement rights by deed to Lot 11 for swimming ingress and egress. He then stated if an expansion of use on the dock was granted to some easement holders he asked why that would not be granted to his client. If it were not granted to his client he asked if his client would not be precluded from getting a use on that dock in the future. He thought his client has been left out of the process. He expressed concern that some type of arrangement would be sealed on behalf of the appellants and therefore impliedly against his client. Mark Garcia, 20430 Radisson Road, noted he came to this Public Hearing because he just received the letter. He also noted that he has lived on the property for 36 years and never knew he could dock a boat at the Lot 11 dock. He went on to note he is not opposed to having four boats dock at that dock. He stated that because his father passed away he is forced to do something with their property. Allowing four boats at the Lot 11 dock may enhance the value of their property. Paul Seifert, 5515 Radisson Entrance, stated the first five property owners who spoke all oppose allowing four boats to dock at the Lot 11 easement dock and they all have access to Christmas Lake. He explained that at one time there were more than 30 easement owners prior to this situation going to court. There were homes on some of the properties and others were vacant lots. During the first motion in the court (he thought Paul Aubrecht was there) Mr. Ahern’s attorney (Ahern wanted to build a house on Lot 11 so people were going after him) moved that anyone not legally represented by that particular hearing were going to be in default. The Judge gave him that immediately. Only 12 people paid the legal bills. At that time it became clear who the easement owners were. Later Steve Larson, one of the twelve, divided his property creating two more building sites bringing the number of easement owners to 14. When he was doing some deed research several years ago he found another easement owner (now the Cossettes but before that Bob Meeson) bringing the number of easement owners to 15. He noted only 12 people who are easement owners paid the legal bills. He noted he had called Mr. Garcia’s father who did not want to participate back then. He also noted for the record that the Wille property had previously been owned by Phyllis Burnes; she had no money. Other easement owners understood the easement added significant value to her property so they paid her legal fees. He went on to note that David Walker previously owned the Joyce property. Mr. Walker was having employment issues so other easement owners paid his legal fees. He stated the City notified property owners within 500 feet yet the easement property goes maybe 2000 feet. That demonstrates that there should not be just one type of legislation. The property is easement property and it should be treated differently. He then stated the legal case ended up doing two things. It defined the easement area. It also affirmed all of the testified recreational uses. Prior to that easement owners used the entire part of Lot 11. He noted there is a website www.lot11.org that has certain court exhibits on it. All the recreational uses are affirmed in the photographs on the website. One of the photos shows three power boats and he thought the photo was from the 1950s. Mr. Seifert stated if the issue about the number of boats is approached using the law and the favorable opinions of two courts then four boats for 14 families is a reasonable settlement. He thanked the Planning Commission for its time. CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 8 of 14 Michael Cohen, 20640 Radisson Inn Road, noted that he has been to Shorewood City Hall many times during his 28 years of residency over this issue. Every time information has been requested, people were told that four boats were grandfathered in for the Lot 11 easement. He stated after he first moved to his property he came to City Hall and looked at certain maps and there was a notation about Lot 11. The Lot 11 issue has divided his neighborhood tremendously. The residents that are opposed to allowing four boats own properties with lakeshore. The people who are in favor of allowing four boats own property that does not have lakeshore. The court case determined that Louis Cohen gave Mr. Joyce’s grandfather the lot for the enjoyment of the neighborhood. During the discovery of the case it was testified that the boats were for off-shore residents so they could enjoy Christmas Lake from the Radisson Inn Addition just like residents who live on lake front property can. He noted that he does hold insurance for everything that appears on his deed; the easement does appear on his deed as an attachment. He thanked the Planning Commission for its time. Bill Hittler and Donna Watz, 2910 Garland Lane N., Plymouth, noted they own the cabin on 20525 Radisson Road. He stated they support the Zoning Administrator’s determination and want to ensure the easement owners are protected. They are also easement owners. Ms. Watz’s family bought the cabin in 1972. Ms. Watz stated she went to the cabin growing up and so did her children. She echoed the comments made about swimming rights and safety issues that could result from increasing the number of allowable boats at the Lot 11 easement dock. The easement is a very small area for the families that enjoy swimming rights there. Mr. Hittler stated from his perspective the court materials and the usage have no bearing on the number of allowable boats. They thanked the Planning Commission for its time. Suzanne Cossette, 5570 Shore Road, noted her and her husband Paul’s property is three properties east of Lot 11. They have lived there since 2001. Their letter to Director Nielsen indicates they support the City’s determination that there is a limit of two boats that could be moored in front of Lot 11 according to both the City Ordinance and the LMCD rules. Their property has direct sight lines to Lot 11. They have never seen more than two boats kept permanently at that dock. Lot 11 easement rights provide a unique opportunity for neighborhood gatherings and recreational use of Christmas Lake. They think an increase in the number of boats would interfere with all easement holders and the adjoining neighbors and their children to safely use the congested area for swimming, fishing and visiting with others on the dock. She thanked the Planning Commission for its time. Leslie Wille, 20545 Radisson Inn Road, introduced her son Lucas. She stated she and her husband Michael own the 20545 property. Their property is adjacent to Lot 11. They are also legal easement owners over part of Lot 11. Their property is on the onshore side. She explained that for more than 15 years they owned Lot 11; they sold it to Mr. Hittler and Ms. Watz last May. For the entire time they owned Lot 11 only two motorized boats were moored at the Lot 11 easement dock and one of the boats belonged to her and her husband. It was accepted by all that the Lot 11 owner would be allowed to keep one motorized boat at the dock and the easement owners would be able to keep one additional boat there. As neighbors and easement holders she and her husband strongly object to any increase in the number of boats that can be moored at the Lot 11 easement dock. They agree with the City’s original ruling and they support rejection of this appeal. She thanked the Planning Commission for its time. Anne Joyce, 20485 Radisson Road, noted that she and her sister Sally Duran own the 20485 property. They are easement holders for Lot 11. Their property is about two lots north and east of Lot 11. They support the City’s ruling in this matter because of safety and density concerns. They do not recall there being more than two boats docked at the Lot 11 easement dock. She thanked the Planning Commission for its time. CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 9 of 14 Tad Shaw, 5580 Shore Road, explained he was on the Shorewood City Council when Mr. Ahern, the then owner of Lot 11, appeared before the then Council requesting a building permit. That Council denied the request primarily because of the then existing easement. At that time he told the parties involved that the City could and would not correct the situation caused by the easement. They would have to go to court to straighten things out. The parties did so and the current easement was crafted by the court. The boat issue was handled by effectively saying that the easement owners had boat rights and the matter was regulated by the City as to the number and types. The court opted out of making any noise about that. Two boats was the determination by the City in accordance with City Ordinances and LMCD rules. He thought it should remain at two boats. He only remembers seeing two boats docked over night at the Lot 11 easement dock. On one document page he thought he read some improper words. He stated some document included in the meeting packet referred to the 75 year history of boats at Lot 11. The court decision made all of the early history irrelevant. That portion of the document and its information was fully considered by the court case. It has no bearing on today. He suggested removing that reference from the document he was referring to and start at the point where it stated six property owners exercised their right to have a boat tied to the dock over a period of time. He thought it would be useful if the dates of use were shown and whether or not the use was seasonal or a portion of the season. The last paragraph of the document was misleading to him. It stated something like most recently there have been two boats tied to the dock not four. But the owners list is correct. One boat was owned by Mike Wille and the other boat was jointly owned by the three easement owners mentioned. Mr. Shaw noted he thought Director Nielsen did a good job of outlining the issues. Mr. Seifert noted he is perplexed by the neighborhood response. He explained there are legally 15 easement owners. Nine of the owners formally signed the appeal letter or 60 percent. If two of the easement owners who already have direct lake access are removed that leaves 13 easement owners. That means 70 percent of the owners signed the appeal. Ms. Wille stated she spent several hours at the title office the previous week attempting to match up the numbers to the certificate of titles to determine who has easement owner rights. She came up with 19 people. The Friendly’s had been left off of the list; they are new easement owners. The Cossettes had never been included. The Punkes are not on the list and there is another family that is not on the list of easement owners. Chair Davis closed the Public Testimony portion of the Public Hearing at 7:59 P.M. Chair Davis asked how large the boats are that people want to dock at the Lot 11 easement dock. Mr. Seifert stated not greater than 20 feet. Davis asked how the owners determine who can dock their boat there. Mr. Seifert stated that has never been an issue. He has had a boat at the dock for 35 years. He explained the reason they are seeking assurance that four boats can be docked there is two properties have new owners and they have younger children and boats and are just getting into water skiing. He commented that he suspected it would start to be an issue because some of the easement owners are getting older and younger people are moving in. He noted the easement owners have self-directed themselves before. Davis stated she assumes all of the owners have a boat. Mr. Seifert clarified only two of the easement owners without lakeshore property have boats and noted that all property owners around the lake have boats and many of them have two. In response to another comment from Davis, Mr. Seifert clarified that generally the easement owners get along very well. When new owners move into the Radisson Inn Addition neighborhood and around the lakefront properties then sometimes people butt heads. Davis asked if people water ski in the little bay. CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 10 of 14 Ms. Callies noted that Christmas Lake is a large lake. A lot of people water ski in the Lake. She clarified that in terms of how the boat dockage would be allocated the City does not get involved in that. She stated there is precedent around Lake Minnetonka and around Christmas Lake for how to divvy up the spots that might be available. The easement owners can figure that allocation out; it does not need to be regulated. She explained the initial determination is about how many boats are allowed to dock there. All the easement owners do not have a boat but they want to ensure there is some dockage space available because that could increase the value of their properties when they are sold. Even though the easement is shared it is still an asset to the properties the easement owners own. Nine of the fifteen (the majority) of easement owners want the opportunity to use the easement in a way that other lakefront property owners can. She noted the Christmas Lake Shores division in Chanhassen has dockage for four boats of its shared easement (she was not entirely sure that was the correct name). Commissioner Bean stated that for the sake of discussion if the City does have jurisdiction over the number of boats allowed at the dock and the City does deem the request for four boats as expansion of nonconforming use then he thought distribution is somewhat relevant to understanding how the easement owners operate and what mitigation might be needed for those owners. Ms. Callies clarified the easement owners are not part of a formal association. The group does have regular meetings as easement owners. Bean stated there could be a Lot 11 association that would help in determining who could dock their boat at the dock. Ms. Callies stated one could be formed. Ms. Callies stated the court document stipulates how the easement can be used in general. In response to a comment, Ms. Callies explained there is such a thing as “sleeping on your rights” and that is what happened to some easement owners in the prior litigation. There are also new owners who buy properties and think they have an easement to Christmas Lake. The easement is on the titles to the properties. This easement is very broad. She reiterated the only issue that some of the easement owners are asking the Planning Commission and Council to decide is the number of boats. The other issues are private and between private property owners. In response to a comment from Commissioner Bean, Ms. Callies clarified that only nine of the easement owners have filed a joint appeal to the Zoning Administrator’s determination. Some of the easement owners do not want to have any more boats docked at the Lot 11 easement dock. The nine who are part of the appeal believe four boats should be allowed. Commissioner Bean stated he had some concern that some of the easement owners indicated they were not involved in the discussion. Ms. Callies noted the number of boats has been a topic of discussion for some time. Ms. Callies stated that at any time easement owners who had concerns about a new boat being docked at the Lot 11 easement dock could have contacted other easement owners rather than file a complaint with the City. They could have tried to seek a determination rather than seek a prosecution of someone. One of the easement owners (possibly Mr. Hayes) stated that there is an interpretation that certain rights were lost by easement owners. He asked if a home owner gets to have a boat. Ms. Callies stated she does not think she should be debating the people in the office. She decided to answer the question. That same owner asked if the person who owns Lot 11 can dock a boat at the Lot 11 easement dock. Ms. Callies clarified the person who owns that property shares an easement with the other easement owners. There is no priority for the owner of Lot 11 to be able to dock a boat there. The determination through the courts is CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 11 of 14 that all of the owners share the easement rights. That same easement owner stated he thought the owner of Lot 11 should be able to dock a boat at that dock. Commissioner Bean stated the easement extends across the entire lakefront side of Lot 11. Therefore, the owner of Lot 11 does not have access to the lake other than through the easement. Ms. Callies confirmed that. Commissioner Maddy stated the Planning Commission is discussing number of boats and not easements. Ms. Callies thanked him for that clarification. Commissioner Riedel stated that based on what he has heard two boats are often docked at the Lot 11 easement dock and sometimes three. Therefore, from his perspective allowing four boats would require an exception based on the Shorewood Code. He explained that the Shorewood Code permits one boat for every 50 feet of shoreline and the length of the easement is 115 feet. The number of boats can be increased to four provided all of the boats are owned by the registered people who live in the residential structure on the site. There is no residential structure on the site; the use of property is nonconforming. He asked what the argument is for extending the number of boats to four. Ms. Callies clarified it is not an extension to four boats. That is an incorrect premise to start with because four boats are allowed. She also clarified that she is not agreeing that Shorewood regulates the number of boats allowed. But if it is determined Shorewood does, then the four boats are allowed under Section 1201.03 of the Code and noted she is not sure if that is the correct section. Commissioner Riedel stated the code allows one boat for every 50 feet. Ms. Callies noted that is the LMCD regulation; there is no authority for the LMCD to regulate Christmas Lake. She noted the Shorewood Code states as otherwise stated in the regulations which say four boats. She stated because of the way the easement is, the history of it and the establishment by the court this is not a typical situation. It is the dock that is nonconforming because there has not been a residential structure on the property. All of the boats that would be docked at the Lot 11 easement dock would be owned by easement owners. Commissioner Riedel asked if the rule of one boat for every 50 feet of shoreline applies to the easement. He stated the LMCD rules are adopted by reference. He again asked what the argument is for four boats. Ms. Callies reiterated that the Shorewood Code would allow up to four boats and that all of the easement owners would own the boats. A Section of the Code talks about the owners of the boats having to be registered property owners; the easement owners are. Riedel stated the Code states the registered people have to live in one residential structure. Ms. Callies stated the lot is unique and does not neatly fit into a typical situation. Riedel stated the argument that it should go from the current usage of two boats to four because it is permitted by regulations depends upon the actual reading of the regulations. Ms. Callies reiterated it is a unique situation that does not exactly fit into the Code. Director Nielsen stated it is his determination that the LMCD rules apply by reference. He then stated the City received new information from Ms. Callies challenging the City’s authority to regulate public waters. He went on to state from his perspective the dock is a nonconforming use and that the City has adopted the LMCD Code for the convenience of uniformity for all of the lakes in Shorewood. He explained one boat is allowed for every 50 feet of shoreline. To go to four it has to be proved that the residents of the house own the boats. He noted that if Attorney Keane decides there is some merit to Ms. Callies challenge then it is a different matter. Ms. Callies stated if the dock is truly nonconforming then another interpretation of this is more than two boats have always been docked there. That position varies among the easement owners. She noted the CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 12 of 14 nine appellants believe that four boats is a reasonable number to allow. She reiterated there is no expansion of the so called nonconforming dock or the number of boats. When asked if the dock was going to remain the same size, someone in the audience stated it may have to be made into a U shape. Ms. Callies stated if it is confirmed that Shorewood does not have the authority to regulate public waters then it does not have the authority to regulate docks. She then stated even if the Shorewood regulations were to apply someone else could build a u-shaped dock. She asked why the easement owners could not have a u-shaped dock. She noted the discussion this evening is about the number of boats. She stated if the dock the easement owners want would conform with City regulations and if the City regulations would apply she asked what basis the City would have to deny the Lot 11 easement from having a conforming dock. Commissioner Riedel stated the intent of City’s argument is the dock is a nonconforming use and the City’s position is to try and decrease the nonconformity. Ms. Callies stated that once the dock is a given then the easement owners should be permitted to have the same number of boats any other property owner could have and any shaped dock they could have that conforms with the City Code. Bean moved, Johnson seconded, continuing the Public Hearing for an appeal of administrative determination on the number of boats allowed at a nonconforming dock to the Planning Commission’s June 7, 2016, meeting pending review by legal counsel of the matters of jurisdiction over the shoreline. Commissioner Maddy stated having received a challenge to the City’s authority to control anything on the shoreline of all of Christmas Lake he noted that he would be comfortable moving forward with making a recommendation on the appeal being considered to Council. He thought the City Attorney should be able to provide an opinion on that challenge within a week. Director Nielsen asked Ms. Callies if the motion on the table is debatable. Motion passed 5/0. Chair Davis continued the Public Hearing at 8:27 P.M. Chair Davis recessed the meeting at 8:28 P.M. Chair Davis reconvened the meeting at 8:31 P.M. 3. PUBLIC HEARING – REZONE PROPERTY FROM R-2A, SINGLE AND TWO- FAMILY RESIDENTIAL TO C-1, GENERAL COMMERCIAL. Applicant: John Benjamin Location: 24250 Smithtown Road The applicant asked to postpone this item. CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 13 of 14 4. PUBLIC HEARING – ZONING CODE TEXT AMENDMENT REGARDING ALTERNATIVE ENERGY REGULATION (continued from April 19, 2016) Director Nielsen stated in an email earlier in the day he asked that this item be continued again to the Planning Commission’s June 7, 2016, meeting. That email included attachments about the proposed Zoning Code text amendment regarding alternative energy regulation. The Commission has not had time to review the documents. Chair Davis opened the Public Hearing at 8:32 P.M., noting the Hearing was continued from April 19, 2016. Bean moved, Riedel seconded, continuing the Public Hearing for a Zoning Code text amendment regarding alternative energy regulation to the Planning Commission’s June 7, 2016, meeting. Motion passed 5/0. Chair Davis continued the Public Hearing at 8:33 P.M. 5. CONSENT AGENDA Director Nielsen stated David Moe was granted a setback variance not quite a year ago. Mr. Moe’s property is currently for sale. He asked for an extension to his variance just in case the sale of his property falls through. He anticipates the Planning Commission would consider a redo of the variance during its July 2016 meeting because the pending buyer may want to refine the plan a little. The extension would be for six months from the time the original one expires. With regard to Item 5.B, Nielsen explained there is a small sliver of land on Howard’s Point Road that went through a tax forfeiture process in 2008. The intent had been to sell the small property to one or both of the two adjoining property owners. The property was either not put on the public action in 2008 or no one wanted it. Some property owners have contacted the City about purchasing the forfeited parcel; they have easements across it. The City purchased the parcel a few days ago and it intends to sell it to them. The Commission must make a recommendation to Council about the sale of public property. Maddy moved, Johnson seconded, Approving the Motions Contained on the Consent Agenda. A. Petition for Extension of Variance Approval Petitioner: David Moe Location: 20920 Forest Drive B. Review and Comment on the Sale of Howard’s Point Road Tax-Forfeited Parcel Motion passed 5/0. 6. MATTERS FROM THE FLOOR There were no matters from the floor presented this evening. 7. OLD BUSINESS / NEW BUSINESS None. CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 14 of 14 8. DRAFT NEXT MEETING AGENDA Director Nielsen stated the two public hearings continued this evening will be on the June 7, 2016, Planning Commission meeting. 9. REPORTS • Liaison to Council Commissioner Johnson reported on the items considered and actions taken during Council’s April 25, 2016 meeting (as detailed in the minutes of that meetings). • SLUC Director Nielsen stated he had intended to go to the April 27, 2018, Sensible Land Use Coalition session which was about park dedication fees but he did not go. He intends to purchase a DVD recording of the session. • Other Commissioner Maddy noted Shorewood, MN Code of Ordinances Section 201.04 Subd. 5 Rules and Procedures states “The Planning Commission shall conduct its meeting consistent with Robert’s Rules of Order and other procedures consistent with the statutes of the State of Minnesota or with this chapter.” Director Nielsen asked Commissioner Maddy if he found anything about continuing. Maddy stated the very dated copy of Robert’s Rules of Order at the dais states “… only limited debate to postpone to another date and that debate can’t be the merits of the question it has to be the reason for postponement.” 10. ADJOURNMENT Davis moved, Maddy seconded, adjourning the Planning Commission Meeting of May 3, 2016, at 8:40 P.M. Motion passed 5/0. RESPECTFULLY SUBMITTED, Christine Freeman, Recorder CITY OF SHOREWOOI) _5755 Country Club Road ®Shorewood,, Minnesota 5533.1.952- 960 -7900 Fax: 952- 474 -0128 • www ci.shorewood.Imn.us • cityhall @ci.shoiewood.inn.us MEMORANDUM r TO: Planning Commission, IVlayor and City Council FROM:' Brad Nielsen DATE -., 3 June 2016 RE: Tom Wayfman - C.U.P.. for Fill in Excess of 100' Cub cYards FILE NO. 405(16.09)' BACKGROUND ,Mr. Tom Wartinan owns the prope'rtyat 26985,Edgewo6d Road 1(see Site Location map — Exhibit'A; attached). Iii the process of subdividing and marketing the property, it was determined that it is necessary 'to raise the grade on, th&front of site(s) to accommodate two.new homes. Mr. Wai-tman.has been worldng with the-,City Engineer to resolve drainage issues associated with the property and the construction of the new homes. The result is the grading'plan shown. on Exhibit B. As shown, the front fourth of so. of the new lot will be raised as much as five feet .at the rear of the building pad, requiring up to 3000 cubic yards'of fill to be brought; in. Shorewood's. Zoning Code.requires a conditional use permit for 'fill in excess of100 cubicyards. The subject property is zoned R -1A/S-- Single - Family Residential`and contains 88,202 square feet of area. The land,is surrounded by single= family residential development, also zoned R 1A/S: Conveniently; a new home being built just west of the subject property, at 27135 EdgewoodRoad, needs to haul approximately 1200 yards of fill away from. that site. Similar to the Wartman CUP, removal'of more than 400 cubic yards also requires a CUP.-, ANALYSIS/RECOMMENDATION The CUP process for fill /grading projects'serves several purposes I) heightened scrutiny on drainage issues; 2) control over traffic patterns for trucks hauling fill; and 3) advising local residents of what can amount to a dramatic change in terrain.' Memorandum Wartman CUP for Fill 3 June 2016 Undoubtedly, the most significant issue with this application is drainage. As mentioned, the applicant has been working with the City Engineer to determine at what elevation the new homes can be set, and where the drainage ultimately goes. h1 this case there is a small drain pipe that extends northward under Edgewood Road, which the Engineer indicates can remain. Site drainage will not, however, depend on that pipe. The Engineer and applicant have determined that drainage will continue to the west in its current pattern. To control both the rate and volume of runoff leaving the site, the Engineer has illustrated the existing storm water storage area shown in yellow on Exhibit B. He will require that grading for the new homes must maintain that same amount of storage on site. In other words, the current low area on the site will be expanded southward and somewhat eastward to makeup for lost storage. Due to the sensitivity of the drainage issue, the City Engineer will be present.at Tuesday night's meeting to answer questions the Commission or residents may have. With respect to the lot at 27135, the excavation is proposed in order to accommodate the home and does not adversely affect neighboring drainage. Subject to the City Engineer's recommendations, staff recommends approval of the CUP. Cc: Bill Joynes Paul Hornby Larry Brown Joe Pazandalc Tim Keane Tom Wattman -2- Lake Minnetonka ��Amccii to ¢+ O a I C� a i Pine CD_ nmawrL Subject` Properties Y Y Y Y i Y Y Y Noble Rd i Y Y i Y Y Y Y Y Y Mars h4 t Marsh,pt Cir Ct po�nte Y Y Y Q Y (n Y Y (� Q Y 2t Y Y O Y o Rd Y N A 0 350 700 1,400 Feet i Y Y 'ti Y Ridge Valle Y Oa Cir Cir � e Rose_ Arbor Creek �� L it � � � lim � � � � ) ` | & � § , » � \f |@ % e■ r ■j ,! m « � /� m� \ ) \ \ nil. \// \� \ \ t From: Linda Murrell [Iinda @salesandmarketing.com] Sent: Thursday, June 02, 2016 6:36 PM To: Planning Subject: 27135 Edgewood Road and 26985 Edgewood Road Conditional Use Permit Expires: Friday, June 02, 2017 12:00 AM Planning Commission, We intend to write a letter outlining our concerns about drainage issues related to the property identified as 26985 Edgewood Road, and will get that to you in the next three days. However, we are unable to attend the June 7 meeting due to prior commitments. A detailed letter will follow shortly. We just want to make sure we're on the record early as neighbors who have serious concerns about the run -off and drainage as it pertains to our contiguous property. Sincerely, Linda and Mike Murrell 27020 Noble Road Shorewood 612.709.2334 From:Mike Murrell To:Planning Subject:Shorewood Planning Commission ltr #1 Date:Sunday, June 05, 2016 5:19:38 PM planning@ci.shorewood.mn.us Mr. BradleyJ. Nielsen, Planning Director Cityof Shorewood 5755 Country Club Road Shorewood, MN 55331 Dear Mr. Nielsen, This letter is in response to your Public Hearing Notice regarding the request by Mr. Thomas Wartman to deposit soil in excess of 100 cubic yards on his property at 26985 Edgewood Road. We live at 27020 Noble Road. The back of our property adjoins Mr. Wartmans property. Our property is one of five adjacent properties on Noble Road (the backs of two of these Noble Road properties adjoin Mr. Wartmans property) that have experienced drainage issues over the years. , water seepage from the higher elevation at the backs of our lots created pooling and wet areas in the lower areas of our yards. The issue may have caused by the higher ground at the backs of the yards being comprised of rich - but porous - top soil, and the lower yards having been created by having been bulldozed flat leaving them comprised mostly of clay. From: Mike Murrell To: Planning Cc: ThomasWartman@gmail.com; Linda Murrell Subject: Conditional Use Permit -Wartman Date: Tuesday, June 07, 2016 11:16:15 AM Bradley J. Nielsen, Planning Director City of Shorewood 5755 Country Club Road Shorewood, MN 55331 Dear Mr. Nielsen, This letter is in response to the Shorewood Public Hearing Notice regarding the request by Thomas Wartman to deposit soil in excess of 100 cubic yards on his property at 26985 Edgewood Road. We had notified your office last week that we could not attend the hearing on June 7, and would be filing a written request. Our primary concern stems from serious drainage problems that resulted from an apparently significant change in the grades of five adjacent properties on Noble Road during construction and landscaping by Developer Tony Eiden, by removing top soil down to clay along what is now Noble Road. Two of those properties adjoin Mr. Wartman’s property, one of which is our property. Eiden provided partial relief with the installation of buried drain tile that runs nearly the full length of the five properties, roughly along the original top soil and graded clay dividing line, with at least three discharge runs and drains to the Noble Road curb. We purchased our home in December of 1996. To the best of our recollection, snow melt and spring rains provided the first evidence of the drainage issues in 1997 or 1998. While the drain tile alleviated some of the water issues, it didn’t totally resolve the problem. During periods of high rainfall, we ended up with water pooling in our back and side yards and under our sun porch (often more than six inches of standing water). Three years ago, we had a French drain installed – at our own expense – at the lowest point in the aforementioned area. So far, there has not been a reoccurrence of pooling. However, we are wary about any additional changes to the grade that would allow rainfall or snowmelt to run to our property. Mr. Wartman contacted us by phone on Sunday, June 5, to discuss his plans. In the course of that conversation, he mentioned that he is working with Advance Surveying & Engineering, an independent engineering firm, to study the drainage issues affecting our property and those of the contiguous properties. Our original request would have been to invite an independent engineering firm to evaluate our drainage concerns related to the conditional use permit request. Since Mr. Wartman has assured us that this has been done, our only remaining request to the Planning Commission is to receive, in a timely manner, a copy of the engineering report so that we may further understand how these issues will be addressed by either Mr. Wartman or the new property owners’ developer/builder. Thank you for seeking our input. Best regards, Mike and Linda Murrell 27020 Noble Road, Shorewood 952.401.1283 612.709.2334 nL,,, MEMORANDUM CITY OF 5755 Country Club Road • Shorewood, Minnesota 55331 •952- 960 -7900 Fax: 952- 474 -0128 • NvNvw.ci.shorewood.mn.us • cityhall &i.sborewood.mmus TO: Planning Commission, Mayor and City Council FROM: Brad Nielsen DATE: 3 June 2016 . RE: Lot 11 Appeal —Legal Opinions FILE NO. 405 (16.07) Having received additional information just before the 3 May meeting regarding the issue of docks on Lot 11 (see Exhibit A, attached), the Planning Commission continued the matter to 7 June in order to obtain an opinion from the City Attorney. Since then we have received the following correspondence (attached): Exhibit B Letter from Scott Smith, attorney for the property owners, dated 13 May 2016 Exhibit C Response letter from appellant attorney, Paula Callies, dated 2 June 2016 Exhibit D City Attorney's opinion, dated 2 June 2016 Cc: Bill Joynes Tim Keane Paula Callies May 2, 20I Shorewood Planni —ng Commission Shorewood City C'oianCil Re,* Lot 1.1 Chriwtznay Lake =,k a}�e tl taf Acl ninistrcttivc Decision Dear Coin miss ion ers and C'itly Council Members: 1 have had done aaddit;ional reseaarch aand am submitting t"W'sletter in support of' our appeal of the Zoning -Administrator's detoranin atioaX... Because the Cit.), of Shorewood dons not have jurisdiction over Christmas Lake, there is no legal basis for the Zonin- Administrator's clew ision iaa this matter On behalf of the State, the DNR has jurisdiction over public waters in 1lflintaa ; ota- under Mina. . Stet. Ch, 103A- 10.3(1. Christmas Lake is designated as a pubhe wafter under C IAA03Ct. The City of Shorewood does not have authority, nor jurisdiction to regulate the us {' of surface waters, including but not necessarily limited to, tbo number and type of boats and docks on C "hristmah Lake. The City's zoning regulations 8top at the shorel.i.ne. Pursuaaaat, to Minnesota Rule 6120,3200, local regulations must receive prior approval .of the DNR to lacy affective, The DNR maintains as summary of local restrictions that. have been aapprove(d concerning ing .11`.Tin esota lake and liver use. x56e, WWw.char.8katoi ill n ,X1sh"o- ill;at.ion,/bo.at-\v itf >i-.'l`he only regulat.ions't.h €at have been approved for Christmas Lake relate to watts skiaaa.{;, not boats and docks. According to L11t1.0 D Code Section I .t) 2, t.lae L WC D regulal ions were adopted in order to ia>,plc yeah the st.attit,ory ros.Ponsibilities established lay the N innesota legislature in 1967, The lc:gisl ature created the. LMC'D and specifically authorized it to establish regulations for Lake} Minnetonka, as provide([ by Minn. Stat. §10313,601 through §1()313.045. The legislature- slid not. authorize the extension of LAICID regulations to apple to other public water bodies, nor pillow as city to umilatelally adopt -its own rogulabons over public waters. There is no legislative authority for the City of Shorewood to deny the Applicants' request ffor =1 boats at the Lot 1.1 (dock in this cease. The decision of the Zoning AGlaaainist.rtator in this matter shou.Id bo overturned. Thank you for your consideraltion, Paula A. Ctalhe 20465 Rtadisso`b Road Exhibit A y� may. SWTH'i LEGAL PUG Liui 2 io ll iit)d ;7Cwm il[t_' t?l.lh( kt �C "t �t1( L ,iSI'�'t'i'� �ltl�_� l��i \1' hlr lwl May 13, 2016 Mr. Bradley J. Nielsen Planning Director City of Shorewood 5755 Country Club Road Excelsior, MN 55331 Re: Appeal of Zoning Determination, Radisson Iran Addition, Lot 11 Dear Mr. Nielsen: I am an attorney representing Bill Hittler and Donna Watz, the fee owners of Lot 11, in connection with the pending appeal referenced above. They are among the many property owners affected by the present appeal who received no notice until just a few days before the May 3, 2016 public hearing of (1) Appellants' January 7, 2016 request to allow four boats on the Lot 1 I dock, (2) the City's March 31, 2016 rejection of that request, or (3) Appellants' April 12, 2016 appeal thereof. While Bill and Donna did submit written comments to you on April 29, Paula Callies' supplemental letter to you dated May 2 and several of the oral comments made during the May 3 hearing raise new and important concerns. Because the May 3 hearing was continued, my clients wish to address those concerns so that the Planning Commission may be fully informed of their position on them before its next meeting. 1. The City Is Expressly Authorized By Statute To Regulate The Number Of Water -crab Aloored Or Docked On Lakefront Lots Situated On Christmas Lake Including Lot of 11 In correspondence to the Shorewood Planning Commission and Shorewood City Council dated May 2, 2016, Ms. Callies incorrectly asserts that, ostensibly due to an absence of legislative authority, "the City of Shorewood does not have authority nor jurisdiction to regulate ... the number and type of boats and docks on Christmas Lake."' To the contrary, Minn. Stat. § 412,221, subd. 12 plainly empowers the City to "to establish harbor and dock limits and by ordinance regulate the location, construction and use of piers, docks, wharves, and boat houses on navigable waters ...." (Emphasis added.) The Minnesota Supreme Court agrees. Welsh v. City of Orono, 355 N.W.2d 117, 121 (Minn. 1984) ( "Minn. Stat. Sec. 412.221, subd. 12 (1982) . .. [gives] Orono the power to regulate docks. . . by municipal ordinance of the location and length, as well as other reasonable regulations of docks extending into Lake Minnetonka ... "). The Planning Commission's determination to limit to two the number of watercraft that may 1 Notably, Ms. Callies took the exact opposite position in her January 7, 2016 letter to you at 2: The specific number ofdocks, slips and boats on the easement is subject to applicable regulations, including City of Shorewood ordinances. See January 6, 1992 Examiner's Report, pp. 4 -5 and Court of Appeals decision, p. 10. (Emphasis added.) Exhibit B Mr. Bradley J. Nielsen May 13, 2016 Page 2 of 5 moor or dock at Lot 11 is well within the powers expressly granted to the City by the Minnesota Legislature and affirmed by the Minnesota Supreme Court. 11. The Maximum Number Of Watercraft That May Be Legally Moored Or Docked At The Lot 11 Dock, As Established By Long- Standing City Ordinances, Is Two Appellants' primary argument is that City Code section 1201.03, subd. 14(c), "allows" property owners on Christmas Lake to keep four watercraft at a single dock. See, e.g., Appellants' correspondence of April 12, 2016 at 3 ( "city code section 1201. 03, subd. 14 (c) ... states that four boats are allowed "). Accordingly, Appellants contend, the City has no authority to limit the number of boats mooring at Lot 11 to two. This argument misinterprets and ignores the City Code ordinances and violates accepted principles of legislative construction and interpretation. Within Shorewood, two separate ordinances regulate the number of boats that may moor at docks extending into Christmas Lake. The first is section 2.02, subd. 1 of the Lake Minnetonka Conservation District Code, which the City has expressly adopted by reference as part of the City Code; see sect. 1201.03, subd. 14(g) ( "Unless specified otherwise in the city zoning code, all docks on all lakes shall comply with the Lake Minnetonka Conservation District Code of Ordinances "). In pertinent part, section 2.02, subd. 1 of the LMCD Code provides: General Rule. No docks or mooring areas shall be constructed, established or maintained that provide space for or are used for mooring or docking a greater number of restricted watercraft than one for each 50 feet of continuous shoreline in existence on May 3, 1978.... For sites with continuous shoreline greater than 100 feet, when measurements determining the number of restricted watercraft allowed result in the provision of a fractional restricted watercraft, any fraction up to and including one -half (112) shall be disregarded, and fractions over one -half (1/2) shall be counted as one additional restricted watercraft. (Emphasis added.) Lot 11 contains approximately 115 feet of continuous shoreline. Accordingly, in accordance with section 2.02, subd. 1, only two watercraft may moor or dock on the Lot 11 dock? The second ordinance is City Code sect. 1201.03, subd. 14(c). Appellants interpret that ordinance as allowing the mooring of four boats on the Lot 11 dock. (See, e.g., January 7, 2016 Ietter at 3; April 12, 2016 letter at 3). That interpretation is demonstrably incorrect. On its face, subd. 14(c) creates a four -boat upper limit that may moor on a given dock, and not a blanket allowance of four boats regardless of the length of shoreline involved: 2 The definition of "moored or docked" is found at LCMD Code, subd. 8. In essence, the Lot 11 dock would be in violation of section 2.02, subd. 1 if more than two watercraft are moored, docked, anchored or otherwise secured to the Lot 11 dock for any period of time on three or more calendar days in any 14 -day period. Mr. Bradley J. Nielsen May 13, 2016 Page 3 of 5 The number of restricted watercraft ... that may be docked or moored on a single property is limited to four. (Emphasis added.) Asa matter of law, wherever possible statutes and regulations are to be harmonized so as to give meaning and effect to both. Minn. Stat. § 645.26, subd. 1; General Drivers, Local No. 346 v. Aitkin County Board, 320 N. W.2d 695, 708 (Minn. 1982). Were Appellants correct in their reading of subd. 14(c), the City's adoption of LMCD Code section 2.02, subd. 1 would be rendered meaningless; by Appellants' argument, owners of a lot in Shorewood with as little as ten feet of Christmas Lake shoreline would be entitled to moor four boats there. The only reasonable construction of the City Code, giving effect to both provisions, is that owners of Shorewood properties on Christmas Lake may permissibly moor no more than one watercraft for every 50 feet of continuous shoreline (rounded up or down as allowed by LMCD Code sect. 2.02, subd. 1), with an upper limit of four watercraft for any property having more than 200 feet of continuous shoreline. Far from arbitrary, this construction reasonably balances and fosters the City's legitimate governmental interests in protecting the safety and welfare of those who use Christmas Lake for recreational purposes and the right of lakeshore residents to the quiet enjoyment of their properties. Finally, Appellants contend that the City may allow up to four watercraft to dock or moor at Lot 11 in conformity with LMCD Code sect. 2.02, subd. 3. That argument also fails. Among other things, that provision requires either (1) "one, and no more than one, single family residential structure on the site," or, (2) if there is no residential structure on the site, "common ownership and unified use" of a property "adjoin[ing] the site." Id., subd. 3(a). Neither condition is satisfied; there is no residential structure on Lot 11, and Appellants have no "common ownership and unified use" of any property adjoining Lot 11. For these reasons, allowing four boats to moor on the Lot 11 dock is prohibited by the City Code — regardless of whether or not the current dock is a non - confirming use under the City's zoning ordinances, or whether Appellants' request for four boats on Lot 11 would constitute an expansion of a non - confirming use.3 The City cannot violate its own ordinances. III. There Is No "Grandfathered" Right To Moor Four Watercraft At The Lot 11 Dock The preceding analysis also demonstrates the error in comments offered during the public hearing that some unexplained "grandfathered" right to moor four boats at Lot 11 exists. As a factual matter, the overwhelming weight of public comment offered prior to and at the public hearing demonstrates that, historically and at present, the status quo vis -a -vis the Lot 11 dock is two boats, not four. See, e.g., .written comments of Joe and Kris Hayes (in 30 years, never more than one or two motorized boats on Lot 11 dock at any one time), Tad Shaw (easement holders alternated docking their boats there or shared ownership so that no more than two boats were docked there), Patrice and Paul Albrecht (adjacent landowners, never seen more than two boats docked at Lot 11 in 31 years), and Michael Wille (never more than two boats moored at Lot 11 3 That said, my clients agree with your determination that the current use of the dock on Lot 11 is non - conforming and that the City is obligated not to expand that non - conforming use. Mr. Bradley J. Nielsen May 13, 2016 Page 4 of 5 dock during the 15 years he owned Lot 11); also, oral comments at hearing from Suzanne Cossette (never seen more than two boats permanently moored at Lot 11 dock), Kris Hayes ( "historical practice" of only two boats on Lot 11 dock), Patrice and Paul Albrecht (recalling occasion where citation was issued for having a third boat at Lot 11 dock), and Ann Joyce (no recollection of more than two boats at Lot 11 dock at any time). Regardless, given the facts that (1) Shorewood has regulated dock use since 1987, when the current City Code was enacted, and (2) the Lot 11 dock was constructed in 1998, no possible "grandfathered" right to moor four boats at Lot 11 can exist; such a use of the Lot I 1 dock would have violated the City Code from the first day the dock was put in the lake. N. The Rights Of The Current Owners OfLot 11 To Use The Dock And The Lakeshore Stem From Their Fee Ownership, Not The Easement Finally, during the public hearing and in follow -up questions from the Commissioners, certain comments were made regarding the rights of Bill and Donna to the use and enjoyment of the Lot I 1 dock and lakeshore. Because some of those comments were not entirely accurate, a brief response is necessary. The right of the fee owners of Lot 11 to occupy, use and enjoy all of Lot 11, including the dock and the "hockey stick" easement area, is vested in them by their ownership of the fee interest to Lot 11 and their historical use of the dock. Though Bill and Donna are also easement holders by virtue of their ownership of the adjoining lot, unlike the other easement holders they also own the real property which is encumbered by the easement. While Bill and Donna fully recognize and respect the easement holders' rights to reasonable access to and use of the "hockey stick" easement area, it is incorrect to state that the rights and obligations of Bill and Donna on the one hand, and Appellants on the other, are "equal" vis -a -vis the Lot 11 dock and lakefront, or that neither is "superior" to the other. Those rights and obligations are different in character and spring from the different legal interests each holds in the "hockey stick." Equally incorrect is Appellants' apparent suggestion that the easement holders "occupy" Lot 11 (see January 7, 2016 letter at 2) and therefore should be considered the equivalent of property owners for purposes of City Code 1201.03, subd. 14(c). Given that the City Code provisions recited above limit the number of watercraft that may be moored to the Lot 11 dock to two, no matter whether the Lot 11 dock is conforming or non - conforming, the argument is of no moment. Regardless, the plain language of the easement limits the easement holders' property rights to "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 ...." Appellants possess no right to "occupy" the "hockey stick" area of Lot 11, nor do they enjoy any other property interest beyond that provided by the plain language of the easement. Because neither the fee owners nor the easement holders may unreasonably burden the other's property interests, the Lot I 1 fee owners and the easement holders have historically each kept one boat moored to the Lot 1 I dock at any given time, in conformity with the overall limit of two. In the case of the easement holders' mooring, at times the easement holders have rotated Mr. Bradley J. Nielsen May 13, 2016 Page 5 of 5 different boats, owned by different individuals, into and out of their allocated mooring; at other times, the easement holders have shared ownership in a single boat. That has transpired without objection from the Lot 11 fee owners. Similarly, the fee owners of Lot 11 have owned and moored the second boat there for decades, again without objection by the easement holders. Regardless, however Appellants may propose to allocate the use of the easement holders' single mooring, the long - standing history of use of the Lot 11 dock entitles Bill and Donna, by virtue of their fee ownership of Lot 11 and not the easement, to the second mooring. As such, they are not subject to whatever allocation process Appellants might propose. Thank you for your consideration of these additional comments. Sly, -- Scott A. Sniith`_­�_" cc: Shorewood City Attorney Paula Callies (on behalf of all Appellants) Bill Hittler and Donna Watz 5"YXI li °'a}; °rst,t Itle�,.i, � `"iiitc WOO - N- illm-'aphs; Ail`'? 55,111; June 2, 20143 Bradley J. Nielsen Planning Direutor /7oninw Adnlinist•nator City of Shorewood 5755 County Club Rottd Shorewood, MN 55331 Re: Lot 11 Chri -Q,mas Lake— Ao )coil of Aclrninistrwt Le i)eeisiau Derr Commissioncgrti qnd ('ity Council itIellibers: 1 am writing in rvsponse to 1,11e 13, 2016 letter of Scott Slllil�,h who is representhig Bill 1 -tit t.ler and Donna Waz. PaUla A. Callies (763)546 -802(r Nothing in i1'll'.Smith's let:tr change + the conelut tons stated In ill`' correspondence dated May 2, 2016 ;jud appeal d.oculnellLs. 1 will not repeat my prior Coil) nlents, taut am responding at this tirue to specific errr)rs by Mr, Smith. First. the core of 14,'(?1512 11. Cib of'CJr(..o, 3t�5 N.N17.2-d 117 Q\,linn.lt)M -) is not o11 point: to the issuer before the t y' of Shorewood concernilig the Lot 1.1. dock. The 1101dirlg of Ole. 14,olsh case is t:b at Orono has no uthority t.o regulate dre(i„ ing in L;:1ke Minnet•onka lit- ?cause Ole UNR has exclusivo juris(lic ilior_a ovt�r clreclf,Tint; irl 1)uhl.ic. waters, �1�llile the c�olu t in 1,lreh�lj cornrllent.eci, as 4111 ,:aside, that under Afi11n. Stott §4 12,221, subd.l2 t1 city has a 9etter"11 poNvt r t -o establish harbor and clock limits anti to regulate (locks, the deeision in Rlelsh li ad not,h -ing to do with the into r•pltay of MR Rules and LMC.D regulations. This fact rem ns that under Mimiesota Rule 6120.3200, local regulations must receive prior approval from the DNR to bo effective and Shorewood h'-Is not doll(? so. Moreover, Christmas L,_1ke is not self-contained within the jurisdiction of Shc ro ood, It: is against the public int,ere.m (i)1, Shorewood t.O impose its regulations such that wllat is perrnit,t,ed at one dock may not he permitted across the lake in Chanhassen, or vice v(,r`!a. ��k ?[?, iY/f S' ()1 1�1rC'11 i•r'(1t_)C1 1,1'!lkwo— v.. ?ll)rf_-'.ti, 576 N.W.2d 4,558, 462 (Minn. Ct,. App. 1998). Second, the cr1'CtrmsiarlCSE ' ti 411r'r'oltnd111 Lot 11 and t-he (lock shared by the easement, owi)ers tare unique and very unlikely t:o be rcplic-4lted. There is ti lone; history est;ablishint; the recreational use and clock on Lot 11 going; back to the 1930's, Mr. Exhibit C Bradley,), Nielsen June 2. 2016 Pag,e Two Smith tries to paint, a drastic "slippel;y slope " argument 1ay asserting that allowing d boats on the Lot. 11. dock would mean that, even property owners with ,-Is litt,lci ns ICi feet, of shoreline could moor 4 boasts on a:! dock. This is simply not true. To my knowledge, there is not aanot•her situation oll Chrishims Lake similar to the historic, leg- all;i° established-easement of Lot, 11, nor will there be. This case i ;Brat. as t, re to the privaite property right,, of lakes limo owners. The Lot. 1 l easement owners have jast als Duch right, to the quiet ain(] peaceful enjoyment, of Christmas Lake as do the laakeshore residents who seek, to control the public waiters for their exclusive private Ilse. '1'lie implication by Mr. SmAh that the City of Shorewood has a day to protect. the Iakoshore residents from how tilt :' "off-lake" i',t soment; owners lase Christmas Lake is offensives and unwarranted, Third, the csxi.stii7ri docsk i; n1eyely oiaey of,a. series of cicicslt : t.hrit, has continuously been in existence on Lot 11 since at least 1940. Mr. Smith erroneously staates that. the dock was first., constructed in 1993, It goes without saying that. a dock does 1lot last forever and must be replaced. Assuming that the Lett, 11 dock is considered +` non -conforming "), 1lflinnosot,u law specifically allows a non-conforming use to he continued th l{ an rough repair, replacement., restoration, maienonce or iin prove inent 5) Minn. Start. §462.357, SubdJo. Nor is it correct., as Mr. Smith states, that the "overwbohning weight" of public comment ;supports the position that 2 beats should be allowed. Nine separate households, comprising 1t8 a.dult:s, signed the aippc�al in this platter, regaardless if not all spokiy again tit the p1i131ic hi?ai "ing. Finally, the issue of how the easoment owners allocate boat slips to the Lot 11 diki`1�. anaont 51 theill4elvr'w is not at fall ri31(!vaatat to tI1C' C1t,y of Shorewor d's determination in this mat or. COntrary to 111% Smith's assertions, the easement owners of this appeal have always and continuously ob,jecst.ed to elaiiins by the underlying land owners of Lot: 11 thin they somehow own specdal or pre-eminent, lights over the dock and 0 3se"Ient, as compared to the eaa senio It owners. Sincerely, L'aaula A. Ca e;; cc: Scott. A. Smith Shorewood City Attorney Scott. Zerhy, Mayor Appeal Easonient• Owners MEMORANDUM TO: Brad Nielsen, Planning Director FROM: Tim Keane, City Attorney DATE: June 2, 2016 RE: Lot 11, Radisson Inn Addition This memorandum is in response to your inquiry relating to the zoning administrator determination that a maximum of two boats are permitted on the dock located contiguous to Lot 11, Radisson Inn Addition. Discussion The issue in the present case is the number of boats allowed to be moored at Lot 11, Radisson Inn Addition. Lot 11 presently exists as a vacant lot. Lot 11 is subject to an easement that allows several other lot owners within Radisson Inn Addition to use a portion of Lot 11 for recreational purposes. Recreational use of property is not a permitted, accessory or conditionally use in the R -1C /S District. Therefore, the current use of Lot 11 is nonconforming. As a nonconforming use, the current dock configuration is a legal nonconforming use subject to the limitations of Shorewood City Code Section 1201.03 Subd. 14. The City of Shorewood shoreline and shoreland regulations were submitted to the Minnesota Department of Natural Resources ( "DNR "). After extensive review, by way of letter dated January 2, 1997, the DNR conditionally approved the City's land use controls. (\ nnnlncinn Based upon my review of the record, the Shorewood City Code, the Lake Minnetonka Conservation District Code, the correspondence in this matter and the additional supporting documents included in the record, I support the March 31, 2016, deterinination of the Zoning Administrator. 4849- 8156- 9585.1 Exhibit D J. Paul & Carol J. Seifert 5515 Radisson Entrance – Shorewood, MN 55331 612.490.1885 pseifert@mchsi.com June 4, 2016 City of Shorewood – Planning Commission Thank you again for your role in defining the appropriate recreational uses and guidelines for the majority of Lot 11 easement owners. And once again I apologize that these meetings and discussions did not take place 20 years ago, immediately after the favorable District and Appellate court decisions, when the neighborhood, including the current owner of Lot 11, was over 80% united on the court’s opinion. In simple language, what were the highlights of the court decisions? -Easement rights over the entire portion of Lot 11 were reduced from the full portion, ~ 15,000 square feet to ~ 6,000 square feet and this reduction was careful to include the full portion of the lake shore, ~ 120 feet, signaling to all and affirming that the original intent of the easement was for “full” recreational uses and access to Christmas Lake. -It addressed the issue of multiple docks and advised that local government would control the appropriate dock number -The Appellate Court affirmed, specific to “recreational uses”, that the District Court “was proper in admitting extrinsic evidence of the original intent of the easement”. A quick review of our website, Lot11.org, shows photographic court exhibits, (extrinsic evidence), of all sorts of recreational uses on Lot 11, on the beach and in the water of Christmas Lake, including multiple restrictive watercraft moored on the dock What’s changed? The simple answer is everything and the continued trends of entitlement. Beginning with the Ahern ownership, easement owners united in resisting his efforts to develop…build a home on Lot 11. The successful District and Appellate court decisions favorable to easement owners ended his efforts. Ten years later the Wille family, with full knowledge of the existing court decisions, purchased Lot 11 for ~$70,000, and almost immediately begin a process of trying to control and limit easement owner’s recreational uses and to elevate themselves to “privilege” by claiming that the owner of Lot 11 has an exclusive right to one of the boat moorings on the Lot 11 dock. Attorneys and the City of Shorewood were involved in the restoration of all easement owners’ rights and the denial of owner special privileges. Recently, the Watz/Hittler family purchased Lot 11 for over $200,000 and again, almost immediately, began their unique process of trying to control and limit easement owner’s recreational uses. Additionally, the Watz/Hittler family, as owners of Lot 11, refused to apply to the City of Shorewood for a variance, which almost certainly would be granted and thus enabling four boats on the dock. Finally, the Watz/Hittler family, working carefully and socially with some neighbors, has united a group in opposition to the majority of “land locked” easement owners, pushing an agenda of two boats and not four. Summarizing: -1940 easement creation with over 30 property titles carrying the original easement language -1994 after both court opinions, 20 titles carrying the new, revised easement language Of the 20 unique titles, their breakdown includes: -19 unique properties, of these… - 6 properties with direct lake access, all in opposition to 4 boats, leaving… -13 properties, all land locked easement owners, and of these… - 9 properties are united in favor of 4 boats…a substantial majority Sincerely, J. Paul & Carol J. Seifert [DRAFT] June 3, 2016 CITY OF SHOREWOOD DEVELOPMENT AGREEMENT MINNETONKA COUNTRY CLUB PLANNED UNIT DEVELOPMENT THIS AGREEMENT, made this day of , 2016, by and between the CITY OF SHORE WOOD, a Mitmesota municipal corporation, hereinafter referred to as the "City ", and MATTAMY HOMES OF MINNESOTA, LLC, a Delaware corporation, hereinafter referred to as the 'Developer" setting forth the rights and obligations of the parties relating to the Minnetonka Country Club (the "Project "). RECITALS 1. The Developer has an interest in certain lands legally described in Exhibit A, attached hereto and made a part hereof, which lands are hereinafter referred to as the "Subject Property "; and 2. The Developer proposes to develop the Subject Property by means of a Planned Unit Development ( "PUD ") consisting of 142 single family residential lots and 15 outlots; and 3. The Developer made application to the City for a PUD and submitted a Concept Plan for the Subject Property, which was considered by the Planning Commission at its meeting of 18 August 2015; and 4. Upon recommendation of the Planning Commission, the City Council, at its 9 October 2015 meeting, did consider and grant Concept Plan approval as set forth in Resolution No. 15 -073, attached hereto and incorporated herein as Exhibit B; and 5. The Developer submitted a Development Stage Plan for the property, which was considered by the Planning Commission at its meeting of 16 February 2016; and 6. Upon recommendation of the Planning Commission, the City Council, at its 22 February 2016 meeting, did consider and grant Development Stage Plan approval as set forth in Resolution No. 16 -013 attached hereto and incorporated herein as Exhibit C; and 7.) The Developer filed with the City the Final Plat for Phase I of "Minnetonka County Club ", a copy of which plat is attached hereto and incorporated herein as Exhibits D -1, D -2 and D -3; and In consideration of the mutual covenants and guarantees contained herein, the parties hereto agree as follows: 1 [DRAFT] June 3, 2016 AGREEMENT 1. General Conditions of Approval. The Developer shall comply with the conditions of approval as adopted by the City Council and set forth in Resolution No. 15 -073 and Resolution No. 16 -013. In addition, development of the PUD is subject to the requirements of the R -1C, Single - Family Residential zoning district, as may be modified herein. A. Minimum setbacks (for all structu; (a) Front: (b) Rear: (c) Side: (d) Side yard abutting a street: (e) Wetland buffer /Setback: 'es) shall be as follows *: 35 feet 40 feet 10 feet 35 feet 35/15 feet *Setbacks and exceptions to those set forth above are illustrated in a Setback Map, attached hereto and incorporated herein as Exhibit E. B. Maximum building height, as defined by the Shorewood Zoning Code, shall be two and one -half stories or 35 feet, whichever is less. C. Use of Outlots within the plat: The preliminary plat for the PUD, attached hereto and incorporated herein as Exhibit- F, includes 15 outlots, which shall be maintained as set forth in the Landscape Manual, attached hereto and incorporated herein as Exhibit G. Use and ownership of the outlots shall be as follows: Outlot A Open space to be conveyed to owners of adjoining property Outlot B Entry monument and landscaping; Home Owner's Association (HOA) Outlot C Entry monument and landscaping; HOA Outlot D Open space; HOA Outlot E Entry monument and landscaping; HOA Outlot F Entry monument, landscaping and common open space; HOA Outlot G Natural open space, trail; City Outlot H Trail; City Outlot I ? Outlot J ? Outlot K ? Outlot L ? Outlot M Natural open space, trail; City Outlot N Open space to be conveyed to owners of adjoining property Outlot O Open space to be conveyed to owners of adjoining property D. The Developer shall comply with the requirements of Shorewood's wetland code (Chapter 1102) and the Wetlands Conservation Act of 1991 [Minn. Stat. 103 2 [DRAFT] June 3, 2016 G.221 et. seq. (hereinafter referred to as the WCA)]. It is the intent of this Agreement that areas adjacent to wetlands be maintained in their natural state. (a) A minimum 35 -foot buffer strip shall be maintained adjacent to all delineated wetland boundaries except as otherwise approved by the Watershed District. (b) Natural vegetation shall be maintained in wetland buffer strips. Where disturbed by site development, wetland buffer strips shall be restored with natural vegetation. (c) Wetland buffer strips shall be identified within each lot by permanent monuments approved by the City. (d) A monument is required at each lot line where it crosses a wetland buffer strip and as necessary to establish required setbacks from the wetland buffer strip. Monuments shall be placed within 60 days of completion of site grading or prior to issuance of a building permit, whichever occurs first. (e) The Developer shall record with the Hennepin County Recorder or Registrar of Titles, a notice of the wetland buffer requirement against the title of each lot with a required wetland buffer strip. (f) No structures, including, but not limited to, decks, patios, and play equipment may be located in the wetland buffer strip or the required wetland setback area, except that fences shall be allowed within the wetland setback area. E. Phasing: The PUD is proposed to be developed in three phases over a period of 3- 5 years, as illustrated in Exhibit H, attached hereto and incorporated herein. All stone water facilities, landscaping of natural open space areas, and relocation of the Metropolitan Council Environmental Services ( "MCES ") sanitary sewer, shall be completed as part of the first phase. 2. Improvements Installed by Developer. Developer agrees at its expense to construct, install and perform all work and furnish all materials and equipment in connection with the installation of the following improvements (the "Improvements "): A. All site grading including building pads; B. Street grading, stabilizing and bituminous surfacing; C. Surmountable concrete curb and gutter; D. Sanitary sewer; 3 [DRAFT] June 3, 2016 E. Storm sewer and surface water drainage facilities; F. Water mains, laterals and service connections; G. Street name signs and traffic control signs; H. Landscaping, planting and reforestation; I. Public trails and sidewalks; consistent with the plans and specification prepared by Carlson McCain, dated <, 2016, and received and approved by the City Engineer. 3. Special Conditions of Approval. A. Upon acceptance of Improvements, the City shall be responsible for maintenance of public trails and sidewalks within the PUD. B. Maintenance and necessary replacement of boulevard trees within the PUD shall be the responsibility of the HOA. C. Maintenance of ponding areas within the PUD shall be the responsibility of the Home Owners Association. D. Total impervious surface on each lot within the plat shall not exceed 40 percent. E. It is anticipated that the Developer will purchase the easterly portion of the property, located at 5985 Seamans Drive and incorporate it into the final plat for the third phase of the development. It is understood that private underground utilities, including gas, electric, telephone, and cable shall be installed by the respective private utility companies pursuant to separate agreements with the Developer. 4. Final Plat, Grading, Drainage and Utility Plan, Building Plan. The Developer has filed with the City Clerk the final plat titled Minnetonka Country Club for the development of Phase 1 the Subject Property. The final plat, together with the grading, drainage, and utility plans, referenced in paragraph 2 above and this Development Agreement, is herewith adopted and approved by the City as the Developer's final plan for development of the Project on the Subject Property. The final plat shall be recorded with the Hennepin County Recorder not later than 29 July 2016. 5. Pre- construction Meeting. Prior to the commencement of construction of each phase, the Developer shall arrange for a pre- construction meeting at least 10 days prior to the 11 [DRAFT] June 3, 2016 commencement of construction, to be held at Shorewood City Hall. Such meeting shall be coordinated with the Planning Director and City Engineer and shall include all appropriate parties specified by the City Engineer. 6. Standards of Construction. Developer agrees that all of the improvements set forth in paragraph 2 above, shall equal or exceed City standards, shall be constructed and installed in accordance with engineering plans and specifications approved by the City Engineer and the requirements of applicable City ordinances and standards, and that all work shall be subject to final inspection and approval by the City Engineer. 7. Materials and Labor. All of the materials to be employed in the making of the Improvements and all of the work performed in connection therewith shall be of uniformly good and workmanlike quality, shall equal or exceed City standards and specifications, and shall be subject to inspection and approval of the City. In case any materials or labor supplied shall be rejected by the City as defective or unsuitable, then such rejected materials shall be removed and replaced with approved materials, and rejected labor shall be done anew to the satisfaction and approval of the City at the cost and expense of Developer. 8. Schedule of Work. The Developer shall submit a written schedule in the form of a bar chart indicating the proposed progress schedule and order of completion of work covered by this Agreement. It is understood and agreed that the Phase 1 work set forth in paragraph 2, except the final lift of asphalt, the trails and the entry monument, shall be performed so as to be completed by 31 October 2016. The final lift of asphalt, trails and entry monument shall be completed by 1July 2017. Upon receipt of written notice from the Developer of the existence of causes over which the Developer has no control which will delay the completion of the work, the City, at its discretion, may extend the dates specified for completion. 9. As -Built Plan. Within sixty (60) days after the completion of construction of the Improvements, Developer shall cause its engineer to prepare and file with the City a full set of "as- built" plans, including an electronic version and two (2) black line prints, showing the installation of the Improvements within the plat. Failure to file "as- built" plans within said sixty (60) day period shall suspend the issuance of building permits and certificates of occupancy for any further construction within the plat. 10. Easements. Developer, at its expense, shall acquire all easements from abutting property owners necessary to the installation of the sanitary sewer, storm sewer, surface water drainage facilities and water mains within the Project, and thereafter promptly convey said easements to the City. 11. Pre - existing Drain Tile. All pre- existing drain tile disturbed by Developer during construction shall be restored, replaced or properly abandoned by Developer. 12. Staking, Surveying and Inspection. The Developer, through its engineer, shall provide for all staking and surveying for the improvements and delineation of the wetland buffer areas. In order to ensure that the completed improvements conform to the approved plans and 5 [DRAFT] June 3, 2016 specifications, the City will provide for resident inspection as determined necessary by the City Engineer. 13. Grading, Drainage, and Erosion Control. Developer, at its expense, shall provide grading, drainage and erosion control plans to be reviewed and approved by the City Engineer. Said plans shall provide for temporary dams, earthwork or such other devices and practices, including seeding of graded areas, as necessary, to prevent the washing, flooding, sedimentation and erosion of lands and streets within and outside the plat during all phases of construction. Developer shall keep all streets within, and adjacent to, the plat free of all dirt and debris resulting from construction therein by the Developer, its agents or assigns. 14. Street Signs. Developer, at its expense, shall provide standard city street identification signs and traffic control signs in accordance with the Minnesota Manual on Uniform Traffic Control Devices, as directed by the City Engineer. 15. Access to Residences. Developer shall provide reasonable access, including temporary grading and graveling, to all residences affected by construction until the streets are accepted by the City. 16. Occupancy Permits. The City shall not issue a certificate of occupancy until all Improvements set forth in paragraph 3 are completed and approved by the City Engineer. 17. Final Inspection. At the written request of the Developer, and upon completion of the Improvements set forth in paragraph 2 above, the City Engineer, the contractor, and the Developer's engineer will make a final inspection of the work. When the City Engineer is satisfied that all work is completed in accordance with the approved plans and specifications, and the Developer's engineer has submitted a written statement attesting to same, the City Engineer shall recommend that the improvements be accepted by the City. 18. Conveyance of Improvements. Upon completion of the installation by Developer and approval by the City Engineer of the improvements set forth in paragraph 2 above, the Developer shall convey said improvements to the City free of all liens and encumbrances and with warranty of title, which shall include copies of all lien waivers. Should the Developer fail to so convey said improvements, the same shall become the property of the City without further notice or action on the part of either party hereto, other than acceptance by the City. 19. Replacement. All work and materials performed and furnished hereunder by the Developer, its agents and subcontractors, found by the City to be defective within one year after acceptance by the City, shall be replaced by Developer at Developer's sole expense. Within a period of thirty (30) days prior to the expiration of the said one -year period, Developer shall perform a televised inspection of all sanitary sewer lines within the plat and provide the City with a record of the televised inspection. 20. Restoration of Streets, Public Facilities and Private Properties. The Developer shall restore all City streets and other public facilities and any private properties disturbed or damaged as a result of Developer's construction activities, including sod with necessary black [DRAFT] June 3, 2016 dirt, bituminous replacement, curb replacement, and all other items disturbed during construction. 21. Reimbursement of Costs. The Developer shall reimburse the City for all costs, including reasonable engineering, legal, planning and administrative expenses incurred by the City in connection with all matters relating to the administration and enforcement of the within Agreement and the performance thereof by the Developer. Such reimbursement of costs shall be made within thirty (30) days of the date of mailing of the City's notice of costs to the address set forth in paragraph 29 below. 22. Claims for Work. The Developer or its contractor shall do no work or furnish no materials not covered by the plans and specifications and special conditions of this Agreement, for which reimbursement is expected from the City, unless such work is first ordered in writing by the City Engineer as provided in the specifications. Any such work or materials which may be completed or furnished by the contractor without such written order first being obtained shall be at its own risk, cost and expense. 23. Surety for Improvements - Deposit or Letter of Credit. For the purpose of assuring and guaranteeing to the City that the improvements to be constructed, installed and furnished by the Developer as set forth in paragraph 2 above, shall be constructed, installed and furnished according to the terms of this Agreement, and to ensure that the Developer submit to the City as -built plans as required in paragraph 8 and that the Developer pay all claims for work done and materials and supplies furnished for the performance of this Agreement, the Developer agrees to furnish to the City either a cash deposit or an irrevocable letter of credit approved by the City in an amount equal to 150% of the total cost of said Improvements estimated by the Developer's engineer and approved by the City Engineer. Said deposit or letter of credit shall remain in effect for a period of one year following the completion of the required improvements. The deposit or letter of credit may be reduced in amount at the discretion of the City upon approval by the City of the partially completed Improvements, but in no event shall the deposit or letter of credit be reduced to an amount less than 125% of the cost of the remaining Improvements. At such time as the Improvements have been approved by the City, such deposit or letter of credit may be replaced by a maintenance bond. 24. Insurance. The Developer shall take out and maintain during the life of this agreement public liability and property damage insurance covering personal injury, including death, and claims for property damage which may arise out of the Developer's work or the work of their subcontractors, or by one directly or indirectly employed by any of them. This insurance policy shall be a single limit public liability insurance policy in an amount not less than $2,000,000.00. The City shall be named as additional insured on said policy and the Developer shall file a copy of the insurance coverage with the City. Prior to commencement of construction of the Improvements described in paragraph 2 above, the Developer shall file with the City a certificate of such insurance as will protect the Developer, his contractors and subcontractors from claims arising under the workers' compensation laws of the State of Minnesota. 7 [DRAFT] June 3, 2016 25. Laws, Ordinances, Regulations and Permits. Developer shall comply with all laws, ordinances, and regulations of all regulatory bodies having jurisdiction of the Subject Property and shall secure all permits that may be required by the City of Shorewood, the State of Minnesota, the Minnehaha Creek Watershed Districts, and the Metropolitan Council Environmental Services before commencing development of the plat. 26. Local Sanitary Sewer Access Charges LSSAC). Developer shall, prior to release of the final plat for Phase I by the City, make a cash payment to the City in the sum of $87,600 ($1200 for each lot) as local sanitary sewer access charges. Subsequent phases shall pay LSSAC, based on the fees in effect at the time of filing of each final plat. 27. Municipal Water Charges. Pursuant to Shorewood City Code a $10,000 municipal water connection charge is required to be paid for each lot, prior to the release of the final plat. The City shall credit the Developer the cost of extending water mains from the outside boundary of the Subject Property to the front property of each lot. In no event shall the credit to the Developer exceed the water connection charges paid. 28. Park Fund Pam. In consideration of land dedications, trail construction and PUD approval, the Developer and the City hereby agree to a total park dedication payment of $780,000, to be paid proportionately at the time of final plat for each phase. 29. Notices. All notices, certificates and other communications hereunder shall be sufficiently given and shall be deemed given when mailed by certified mail, return receipt requested, postage prepaid, with proper address as indicated below. The City and the Developer by written notice given by one to the other, may designate any address or addresses to which notices, certificates or other communications to them shall be sent when required as contemplated by this Agreement. Unless otherwise provided by the respective parties, all notices, certificates and communications to each of them shall be addressed as follows: To the City: Zoning Administrator City of Shorewood 5755 Country Club Road Shorewood, Minnesota 55331 With a Copy to: Shorewood City Attorney c/o Kutak Rock LLP 220 South Sixth Street, Suite 1750 Minneapolis, Minnesota 55402 To the Developer: Mattamy Homes of Minnesota LLC 7201 Washington Avenue South Edina, MN 55439 30. Proof of Title. Developer shall furnish a title opinion or title insurance commitment addressed to the City warranting that Developer is the fee owner or has a legal right to become fee owner of the Subject Property upon exercise of certain rights and to enter upon the [DRAFT] June 3, 2016 same for the purpose of developing the Subject Property. Developer agrees that in the event Developer's ownership in the Subject Property should change in any fashion, except for the normal process of marketing lots, prior to the completion of the Project, the Improvements and the fulfillment of the obligations under this Agreement, Developer shall forthwith notify the City of such change in ownership. Developer further agrees that all dedicated streets and utility easements provided to City shall be free and clear of all liens and encumbrances. 31. Indemnification. The Developer shall hold the City harmless from and indemnify the City against any and all liability, damage, loss, and expenses, including but not limited to reasonable attorneys' fees, arising from or out of the Developer's performance and observance of any obligations, agreements, or covenants under this Agreement. It is further understood and agreed that the City, the City Council, and the agents and employees of the City shall not be personally liable or responsible in any mariner to the Developer, the Developer's contractors or subcontractors, materialmen, laborers, or any other person, firm or corporation whomsoever, for any debt, claim, demand, damages, actions or causes of action of any kind or character arising out of or by reason of the execution of this Agreement or the performance and completion of the work and Improvements hereunder. 32. Declaration of Covenants, Conditions and Restrictions. Developer shall provide a copy of the Declaration of Covenants, Conditions and Restrictions, which Declaration shall include the City as a signatory thereto, for review and approval by the City prior to recording. 33. Remedies Upon Default. A. Assessments. In the event the Developer shall default in the performance of any of the covenants and agreements herein contained and such default shall not have been cured within thirty (30) days after receipt by the Developer of written notice thereof, the City may cause any of the Improvements to be constructed and installed or may take action to cure such other default and may cause the entire cost thereof, including all reasonable engineering, legal and administrative expenses incurred by the City to be recovered as a special assessment under Minnesota Statutes Chapter 429. The Developer agrees to pay the entire amount of such assessment within thirty (30) days after its adoption. Developer further agrees that in the event of its failure to pay in full any such special assessment within the time prescribed herein, the City shall have a specific lien on all of the Subject Property for any amount so unpaid, and the City shall have the right to foreclose said lien in the manner prescribed for the foreclosure of mechanic's liens under the laws of the State of Minnesota. In the event of an emergency, as determined by the City Engineer, the notice requirements to the Developer prescribed by Minnesota Statutes Chapter 429 shall be and hereby are waived in their entirety, and the Developer shall reimburse the City for any expense incurred by the City in remedying the conditions creating the emergency. B. Performance Guaranty. In addition to the foregoing, the City may also institute legal action against the Developer or utilize any cash deposit made or letter of credit delivered hereunder, to collect, pay, or reimburse the City for: 0 [DRAFT] June 3, 2016 (a) The cost of completing the construction of the Improvements. (b) The cost of curing any other default by the Developer in the performance of any of the covenants and agreements contained herein. (c) The cost of reasonable engineering, legal and administrative expenses incurred by the City in enforcing and administering this Agreement. C. Legal Proceedings. In addition to the foregoing, the City may institute any proper action or proceeding at law or at equity to abate violations of this Agreement, or to prevent use or occupancy of the proposed dwellings. 34. Headings. Headings at the beginning of paragraphs hereof are for convenience of reference, shall not be considered a part of the text of this Agreement, and shall not influence its construction. 35. Severability. In the event any provisions of this Agreement shall be held invalid, illegal, or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof, and the remaining provisions shall not in any way be affected or impaired thereby. 36. Execution of Counterparts. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original, and all of which shall constitute but one and the same instrument. 37. Governing Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of Minnesota. 38. Successors and Assigns. It is agreed by and between the parties hereto that the Agreement herein contained shall be binding upon and inure to the benefit of their respective legal representatives, successors, and assigns. IN WITNESS WHEREOF, the patties hereto have caused these presents to be executed on the day and year first above written. 10 [DRAFT] MATTANY HOMES OF MINNESOTA LLC CITY OF SHOREWOOD By: Its: STATE OF MINNESOTA ss. COUNTY OF HENNEPIN By: Its: Mayor ATTR,T- Bv: Its: City Administrator June 3, 2016 On this _day of , 2016, before me, a Notary Public within and for said County, personally appeared Scott Zerby and William Joynes to me personally known, who, being each by me duly sworn, did say that they are respectively the Mayor and City Administrator of the municipal corporation named in the foregoing instrument, and that said instrument was signed and sealed on behalf of said corporation by authority of its City Council, and said Mayor and City Administrator acknowledged said instrument to be the free act and deed of said corporation. STATE OF MINNESOTA ss. COUNTY OF HENNEPIN Notary Public On this day of , 2016, before me, within and for said County, personally appeared , the of Mattamy Homes of Minnesota LLC, the Developer, described in and who executed the foregoing instrument and acknowledged that it executed the same as its free act and deed. Notary Public 11