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091597 CC Reg Min . . . CITY OF SHOREWOOD CITY COUNCIL INFORMATIONAL MEETING MONDAY, SEPTEMBER 15, 1997 COUNCIL CHAMBERS 5755 COUNTRY CLUB ROAD 7:00 P.M. MINUTES 1. CONVENE CITY COUNCIL MEETING Acting Mayor Stover called the meeting to order at 7:05 p.m. A. Roll Call Present: Acting Mayor Stover; Councilmembers McCarty, O'Neill and Garfunkel; Administrator Hurm; City Attorney John Dean; Engineer Larry Brown; Planning Director Brad Nielsen; Finance Director AI Rolek Absent: Mayor Dahlberg B. Review. Agenda Acting Mayor Stover read the Agenda for September 15, 1997. She announced the Council will convene in a work session at the conclusion of the informational meeting. 2. DISCUSSION OF ISSUES RELATED TO PROPERTY LOCATED EAST OF EUREKA ROAD BETWEEN NELSINE DRIVE AND ORCHARD CIRCLE - KNOWN AS 5400 EUREKA ROAD (1) Historical Perspective on the Property and Presentation of New Data Planning Director Nielsen described the project in detail and related the historical perspective of the project. (2) Issues and the City's Role in the Process Nielsen reviewed the issues surrounding the project as well as the manner in which the City has investigated and addressed these issues. Engineer Brown explained the role the Minnehaha Creek Watershed District has played in this . project. Paul Hornby, OSM, explained the 1975 Stormwater Management Plan was reviewed to determine the sub-watershed for the subject area as well as the property contributing to the wetland area. OSM also considered the drainage analysis which was completed relative to a roadway project for Smithtown Road which was conducted by OSM in 1996. Mr. Hornby explained consideration was given to the area contributory to the portion of the wetland which is south of Pleasant A venue. The area north of Pleasant A venue has a relatively small drainage area which drains to a large holding facility. The remainder of the area south of Pleasant A venue drains to the wetland on both sides of Eureka Road. As a part of the analysis, it was assumed all water would drain to the wetland area south of Pleasant Avenue and Birch Bluff Road and across from Eureka. Using a 100 year run off event and the storage available, the peak elevation would be approximately 932.3 which would not over top Birch Bluff Road, however, it would over top a portion of Eureka Road. . . . CITY COUNCIL INFORMATIONAL MEETING SEPTEMBER 15, 1997 - PAGE 2 As part of a further analysis, it was assumed a second 100 year event would follow behind the fIrst and there is no available space remaining in the hatched areas. This analysis revealed that the peak storage elevation would reach 933.2. This elevation would over top Birch Bluff Road as well as Eureka Road. Mr. Hornby stated the restrictions put on the sub-watershed itself are very conservative from an engineering standpoint and it is unlikely this scenario would actually happen. The length of time it would take water to get from the farthest reach in a sub-watershed to the point of storage, under the analysis of an urban area, fully developed with a storm sewer, would be approximately 58 minutes. In actuality, it would take approximately four to fIve hours. Brown explained the Watershed District raised questions as to why the City did not perform a precise identifIcation as to the 100 year event. He further explained it would cost between $6,000 and $10,000 to obtain the necessary aerial photography and control survey, therefore, consideration was given to a storm which is a greater event than the 100 year flood plain defInition to see how that would impact the property. The elevation determined by OSM to be 932.3 is greater than the flood plain and still meets the requirements of the ordinance. Brown explained the Watershed District is giving consideration to utilizing the peak elevation which has been determined by OSM. Attorney Dean commented on the letter which was received from Svoboda Ecological Resources. He noted Mr. Svoboda raises a number of issues which have been discussed and addressed by staff. Relative to the authority and limits of the City in imposing restrictions and conditions on the building permit, Attorney Dean responded in a general way to the following issues. Mr. Svoboda stated the house will be built on an alluvial outwash and Attorney Dean noted a soil report has been prepared by PEC, Inc. He stated the City is building a fIle relative to this matter and to make an assertion on the face of the building permit would be exceeding the City's authority. With respect to Mr. Svoboda's suggestion there be a lO-year guarantee period for improvements, Attorney Dean explained that State statute sets forth new home warranties and guarantees which apply to all new residential construction. Attorney Dean expressed concern relative to requiring an extraordinary period of guarantee once the provisions have been met which would allow for the issuance of a building permit. Mr. Svoboda also suggested the developer be required to live on the property for a minimum of two years after the building is completed. Attorney Dean felt this provision would exceed the City's authority. He felt the letter was well stated and the points well raised, however, he has signifIcant concerns relative to each of them. (3) Questions and Answers Councilmember Garfunkel asked what step the Watershed District would be taking next. Brown explained if the remaining issues relative to the plan submittals can be worked out, the Watershed would act on wetland mitigation and satisfaction of the flood plain issues. If those answers are forthcoming, the other requirements of the Watershed District have been met. CITY COUNCIL INFORMATIONAL MEETING SEPTEMBER 15, 1997 - PAGE 3 . Brown pointed out there are two variances which will need to be granted by the Watershed District relative to the wetland buffer of 35 feet. One variance is relative to the encroachment of the driveway. In addition, one of the stakes at the northwest comer of the building pad is closer than the 35-foot wetland setback. The Watershed District would have to grant approval of a variance to their regulations with regard to setbacks along with the standard wetland and flood plain mitigation issues. Brown further explained because of concerns of wetland stakes being moved and the events that have taken place in the past, the City has required that the wetland be depicted as shown by the wetland scientist and that the surveyor must review the plans and sign off stating that the wetland was staked within a close period of time. Brown stated according to the plan, the corrected house pad is approximately 43 feet by 22 feet. Councilmember Garfunkel asked what factors the Watershed District will take into account when considering the necessary variances. Brown explained based on his experience, it is more diffIcult to grant the variance for the driveway than the one stake. The stake shown near the northwest comer is one point which encroaches. With regard to the driveway, that encroachment is more extensive. Councilmember O'Neill stated the applicant has admitted to falsifying stamped engineer documents as well as moving wetland delineation stakes. A delineation stake on the driveway site was moved and fIll piled on a small part of the wetland. Councilmember O'Neill asked whether additional inspections could be required which would be charged back to the developer. . Attorney Dean stated these issues do give rise to concern the job is being completed in a proper manner. As the City building offIcial and engineer review the plans and the critical steps necessary to carry out those plans, it would behoove the City in this and every case to be sure there are prompt and thorough inspections. The City has the authority to stop work and require the steps are carried out correctly. Attorney Dean stated it would be appropriate for the City to use caution commensurate with the circumstances in this case. Councilmember O'Neill asked for comment from Jim Hafner of the Minnehaha Creek Watershed District relative to his comment at the Watershed District meeting that there is precedent set for the granting of a variance for the driveway. Mr. Hafner stated the Watershed District is not required to consider a retention pond given the fact this is a single family residence being proposed. He stated variances are considered on a site by site case. Councilmember McCarty inquired, assuming all variances are granted and permits are obtained, is there anything that can be done to stop the project. Attorney Dean explained that if all required approvals are received and there is a timely and proper application for a building permit and all conditions of the permit are met, the City will be obligated to issue a building permit. Councilmember O'Neill questioned what legal avenues are available to the City given the fact Mr. Meline admitted he altered the plans. Attorney Dean stated this is a serious matter and it is the intention of staff to investigate this matter, review the remedies available and report back to the Council. Dan Sherlock, 24460 Nelsine Drive, asked what the City is doing to ensure it can be protected in the future. Attorney Dean explained staff will investigate the remedies available. . . . . CITY COUNCIL INFORMATIONAL MEETING SEPTEMBER 15, 1997 - PAGE 4 Roger Champa, 25500 Nelsine Drive, stated ordinances were adopted for good reasons, however, changing times warrant changes to the ordinances. He expressed concern the ordinance permits a two foot flood plain on a driveway. He felt the ordinance needs to be addressed. Nielsen explained the City flood plain regulations which were adapted for the City are based on the DNR model. Mr. Champa noted a significant change in the topography with all of the new housing developments and felt this ordinance needs to be addressed. Greg Larson, 25535 Orchard Circle, felt a significant amount of conflicting data had been provided during the informational meeting. Mr. Larson felt there cannot be controversy that the project is subject to extensive flooding. Mr. Larson stated the building site and home is completely surrounded by wetland as close as 20 feet to the house itself and the driveway will be under water for up to 300 feet. It could be several inches or up to two feet deep. Mr. Larson expressed concern relative to a building permit being issued and any action which could be taken against the City by a future owner of the home. Councilmember O'Neill questioned why the contours do not match up with the surveys. Brown stated there are points which fall outside of the line and explained staff noticed the topography map which was used matches up with the 1966 topography map that the City has. The actual topography did not include this nine or ten acre parcel. Brown noted the document is not an official boundary survey and this is one of the things which will be discussed with the registered land surveyor who signed off on the plan. Acting Mayor Stover asked what steps the City will take regarding the boundary survey. Brown stated the applicant has been asked to submit an official boundary survey to address setbacks as well as the elevation points which were completed by the surveyor to certify by the laws of the State of Minnesota that those are accurate. Brown stated the City is interested in getting the boundary survey with the spot elevations on it. A professional must sign off on that survey verifying that each individual point was found to be accurate according to professional standards. Nielsen stated in addition to a Certificate of Survey depicting the boundaries, a complete up to date topographic survey will also be required. Mr. Larson stated he is disputing the basis that is used to determine whether this is, in fact, a buildable site. Brown explained the elevations that are shown must be certified by a surveyor and must comply with the flood plain ordinance. Mr. Champa suggested more data be take.n back to the Watershed District so they may make a decision. It was his understanding the Watershed District did not know what the true elevations were for the proposed building site. The Watershed District consulted legal counsel to determine who is responsible for establishing that level and it was determined the level would be established by the Watershed District. Councilmember O'Neill stated it is part of the Legislature's mandate that the Watershed District is to set the flood plain for its districts. Councilmember O'Neill asked whether the developer could be required to do more. Nielsen stated there could be additional requirements in an effort to ensure there will be no filling or to verify the extent to which fill is placed below the flood plain elevation. There is an issue of wetland and flood plain mitigation relative to this site. Mr. Larson stated in 1987 water topped Eureka Road by approximately one foot. There is also a stream flood potential. In speaking with a representative of the Army Corp of Engineers, Mr. Larson commented there may be a floodway associated with the ravine and stream that is separate and higher than the flood plain of the wetland itself. . . . CITY COUNCIL INFORMATIONAL MEETING SEPTEMBER 15, 1997 - PAGE 5 Mr. Larson commented this project is very damaging to the trees and shrubs both on and off the project site. He noted the wetland mitigation plan calls for the removal of a large number of trees. Mr. Larson asked the Council to pass a resolution asking the Watershed District to reject the mitigation plan because it is damaging to the vegetation surrounding the wetland. Mr. Larson stated there is no association between the 100 year storm and the 100 year flood. He recalled the storm of July 1987 storm where the water was one foot over Eureka Road. This storm has been referred to as the worst storm in over 200 years. The engineer for the Watershed District stated this was not the 100 year flood event, but was a 200 year rain event. Mr. Larson spoke with the State climatologist and was informed the 100 year storm for most locations in Minnesota is approximately six inches. There have been two such storms in the past 20 years. Mr. Champa questioned the circumstances under which an ordinance was developed allowing a driveway to be two feet below flood plain. Acting Mayor Stover explained the City adopted the flood plain ordinance which was prepared by the DNR. Nielsen stated the DNR prepares a model ordinance which can be adopted by the City or adapted to the City's circumstances. He explained the City used the numbers and standards from the model because it is an acceptable and defensible standard which is recommended by the DNR. Brown asked Attorney Dean for his input relative to any ordinance changes which would be made at this point. Attorney Dean felt it would be appropriate for Brown, in connection with OSM or others, to complete some preliminary leg work to see if, in fact, there is some justification for a number other than two feet. He stated a report should be made back to the Council as soon as possible. In terms of the subject project, Attorney Dean did not feel it would be too late to factor this into the review of this particular matter. Acting Mayor Stover asked for an explanation of the 100 year flood. Brown explained the 100 year event has to do with statistics of the law of averages over time and how often that type of storm would occur. He stated OSM did run two back to back 100 year events to see what would happen and that elevation came up to 933.2 which does not impact the house pad. Attorney Dean noted his understanding tlus would, however, impact upon the driveway and Brown confirmed this. Brown clarified the discussion was not about the 100 year flood plain precisely, but something more conservative. Mr. Larson provided photographs of the mitigation areas which will impact the trees in the area. Councilmember O'Neill suggested a resolution be developed and added to the next Council agenda relative to the mitigation area and the impact it will have on the trees. Barbara Cameron, 5490 Wedgewood Drive, asked what guarantees there are that her home will not flood as a result of this project. She noted she has made a substantial amount of improvements to her home. Brown stated the signature of a professional engineer will be required and under the City's authority it is the only tool available to address that issue. Ms. Cameron expressed concern relative to utilizing Mr. Meline's engineer given his previous conduct regarding this matter. Councilmember McCarty asked if a neutral engineer could be utilized at the expense of the applicant. Brown suggested OSM review the stormwater calculations as a neutral engineer, however, he did not feel the cost could be passed on to the applicant. Mr. Hornby stated OSM would charge under $800 to do this work. Acting Mayor Stover felt an applicant would have the right to obtain their own engineer. Frank Svoboda, 25580 Nelsine Drive, stated he has not seen the soils report. He expressed concern the material which eroded out of the ravine would, over time, consolidate and compact. He felt conceivably there could be peat somewhere below 7.5 to 9 feet. . . . CITY COUNCIL INFORMATIONAL MEETING SEPTEMBER 15, 1997 . PAGE 6 Councilmember O'Neill asked for Mr. Hornby's opinion on building a house on peat which is 8 to 10 feet down. Mr. Hornby stated that peat which is that far down will probably not consolidate. Brown stated there were concerns relative to the foundation and, therefore, it is being required that a professional engineer sign off on the foundation design. Mr. Sherlock asked whether this is a high risk site given the number of signatures which are being required. He felt this to be a marginal site and asked why the City is even considering it. Brown commented no one feels this is a prime building site, however, the City uses the tools it has available and in that regard has requested a number of certifications. Councilmember O'Neill proposed this matter be added to the next agenda and at that time the Council will discuss having another engineer review the soil report and render an opinion. Acting Mayor Stover suggested this be scheduled for another meeting given the agenda which has already been established for the next meeting. Brown noted another engineer may have a problem with reviewing the report since he did not perform the borings. He commented Mr. Meline may be open to an easement situation in which borings could be taken. Attorney Dean stated engineering reports many times contain disclaimers which limit what they are responsible for given what they actually saw. Councilmember McCarty pointed out there are more borings taken for a tennis court than have been taken for this project. Mr. Svoboda suggested elevation points of the wetland edge stakes be taken. Brown explained because of the arnount of controversy and the events which have taken place with regard to the stakes, there was a requirement the stakes be surveyed directly after the wetland was reestablished. In addition, there was a precise sequence of events which had to take place with regard to the plan preparation because of the credibility issues which were raised. Mr. Svoboda commented in constructing the driveway there may be excess material which will need to be removed and disposed of. He noted that removing material from the building pad area is going to also generate excess material which will need to be disposed of. When the wetland is mitigated this will require the removal of cubic yards of material. Mr. Svoboda asked where this excess material will be placed. Nielsen stated the material which comes out of the building foundation is typically spread around the building to create drainage around the building. The material which is excavated for wetland mitigation would have to be deposited in an approved dumping site and disposed of off of the site. Mr. Svoboda felt there will be substantial costs associated with soil correction. There will also be an issue of obtaining permission from some other property owner to dispose of the material which is not suitable for construction elsewhere. Councilmember O'Neill felt there to be significant costs in just preparing the site for the house. Acting Mayor Stover stated when an application is made for a building permit, the City cannot critique the advisability of the plan. Mr. Svoboda inquired whether OSM made calculations relative to how much water will flow through the ravine in the first 100 year event and in the second 100 year event. Mr. Hornby stated he did not take into consideration the different topography along the route. Brown stated although OSM analyzed two back to back 100 year storms, the only thing which can be enforced is the 100 year event. This was simply done for the City's own comfort level. ... CITY COUNCIL INFORMATIONAL MEETING SEPTEMBER 15, 1997 . PAGE 7 . Colleen O'Neill, 25540 Nelsine Drive, commented on Mr. Meline's behavior and attitude regarding the project. She asked why there is a discrepancy between the City's information and the Watershed District's information relative to the size of the site and the percentage which is wetland. Nielsen explained his calculation was based on measuring the site, especially the part which is very uneven. Mr. Hafner stated the Watershed District obtained their figures from the hydrologic calculations which had been provided. Ms. O'Neill asked if the proposed ditch on the south side of the driveway is a requirement. Nielsen stated it is a requirement and for any feature which would trap water, there would need to be a means of relieving the water. . With respect to the sprinkling of the house, Ms. O'Neill asked whether that will require municipal water to the property. Nielsen stated he anticipates this will be city water and was unsure whether this service could be provided through a well system. Ms. O'Neill questioned how deep the line will be. Brown stated typically the service would be 6 to 8 feet deep. Mr. Meline will be required to pay for this service on a per foot basis. Brown stated he has observed situations in which booster pumps and storage pressure tanks have been added to a private well system. He note this is not economical and he would not expect to see that on the plan. Ms. O'Neill expressed concern relative to the soil excavation and the recommendation the excavation be carefully performed with the use of a backhoe. She asked what can be done to supervise and protect this private site. Nielsen explained in terms of excavation, there is a requirement that the building inspector be called to examine the excavation. The building inspector routinely has people clean out excavations which have been over worked or rained on. Beyond that, the issue is the fill which is brought in and compacted over that. There will be a requirement his soil engineer be there for the compaction which is done since he has requested this be done in lifts. Ms. O'Neill asked what will happen if the developer abandons the project. Brown stated a nuisance/eye sore complaint could be made if the house were unfinished and construction debris were left. In regard to the Watershed District permit in connection with proper restoration to avoid erosion into the wetland, the permit is very clear as to the specified time in which the open material needs to be restored and seeded. Mr. Hafner stated the time limit to be 48 hours to two weeks, however, the Watershed District would prefer a shorter period of time. Ms. O'Neill questioned whether there is a specified period of time in which the building permit is valid. Nielsen stated the applicant must start construction within 180 days and maintain progress every 180 days. It was noted it could take as long as three years to build a home under those guidelines. Ms. O'Neill suggested the City establish a review board for developers utilizing marginal properties and expressed concern this builder does not live up to the standards expected of a developer in Shorewood. Administrator Hurm will work with staff to investigate this matter. Rick Stromberg, 5510 Wedgewood Drive, displayed the pictures which were provided at the previous Council meeting and Brown noted they are on file. Ms. Cameron provided the members of the Council with a copy of the police report in which Mr. Meline was abusive to her daughter. . . . . . .. .., CITY COUNCIL INFORMATIONAL MEETING SEPTEMBER 15, 1997 - PAGE 8 Acting Mayor Stover thanked everyone for coming and commented staff will continue to monitor the situation. A status report will be returned to the Council on September 24, 1997, and a resolution will be considered asking the Watershed District to reject the mitigation plan. 3. ADJOURNMENT Garfunkel moved, O'Neill seconded adjourning to work session format at 9:55 p.m. Motion passed 4/0. RESPECTFULL Y SUBMITTED, Cheryl Wallat, Recording Secretary TimeSaver Off Site Secretarial, Inc. ATTEST: YOR