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060507 pl mn . . . CITY OF SHOREWOOD PLANNING COMMISSION MEETING TUESDAY, 5 JUNE 2007 COUNCIL CHAMBERS 5755 COUNTRY CLUB ROAD 7:00 P.M. MINUTES CALL TO ORDER Acting Chair Gagne called the meeting to order at 7:00 P.M. ROLL CALL Present: Acting Chair Gagne; Commissioners Geng, Gniffke, Meyer, and Ruoff; Planning Director Nielsen; and Council Liaison Woodruff Absent: Chair Schmitt and Commissioner Hutchins APPROVAL OF MINUTES · 15 May 2007 Ruoff moved, Gniffke seconded, Approving the Planning Commission Meeting Minutes of 15 May 2007 as presented. Motion passed 4/0/1 with Meyer abstaining due to his absence at the meeting. 1. 7:00 P.M. PUBLIC HEARING - C.U.P. AMENDMENT FOR SHED Applicant: Excelsior Covenant Church Location: 19955 Excelsior Boulevard Acting Chair Gagne opened the Public Hearing at 7:01 P.M., noting the procedures utilized in a Public Hearing. He explained items recommended for approval that evening would be tentatively placed on a June 11, 2007, Regular City Council Meeting Agenda for further review and consideration. Director Nielsen explained there were two accessory structures located on the northeast comer of the Excelsior Covenant Church property, located at 19955 Excelsior Boulevard. The smaller of the two structures (a utility shed) was in need of replacement, and Jim Turnquist, representing Excelsior Covenant, proposed to replace it with a somewhat larger one. The property was zoned R-2A, Single and Two-Family Residential. Accessory structures for churches were conditional uses in residential districts, and Mr. Turnquist had requested a conditional use permit (C.u.P.), pursuant to Section 1201.14 Subd. 4. of the City's Zoning Code. Nielsen went on to explain the subject property was located between Excelsior Boulevard and Highway 7 and contained nearly 7.6 acres of land. The replacement building would be located in the same spot as the structure being replaced. The style and materials of the building would be similar to the existing two- car garage it would be located next to. Nielsen stated Section 1201.14 Subd. 4. of the City's Zoning Code referred back to section R-1B. He explained how the proposed structure complied with requirements set forth in Section 1201.11 Subd.4.b of the Code. CITY OF SHOREWOOD PLANNING COMMISSION MEETING 5 June 2007 Page 2 of 6 . a. Side yards for church facilities are required to be double that which is normally required for the zoning district. The proposed building will be 20 feet from the east side of the property, in compliance with the setback requirement. b. The site for the building was in a wooded area in the northeast comer of the property. Despite being somewhat larger than the existing structure, the replacement structure should fit into the same space with very little site alteration. c. The proposed building neither takes up existing parking spaces nor necessitates additional parking. Nielsen stated because the applicant's request was considered to be consistent with the requirements of the City's Zoning Code, Staff recommended that the conditional use permit be granted as requested. Seeing no one present wishing to comment on this case, Acting Chair Gagne opened and closed the Public Testimony portion of the Public Hearing at 7:05 P.M. In response to a question from Acting Chair Gagne, Director Nielsen stated the City had not received any comment regarding the c.u.P. request from the neighboring property owners. Gniffke moved, Meyer seconded, Recommending Approval of the Conditional Use Permit for an Accessory Structure for Excelsior Covenant Church, 19955 Excelsior Boulevard. Motion passed 5/0. . Acting Chair Gagne closed the Public Hearing at 7:07 P.M. 2. 7:!0 P.M. PUBLIC HEARING - ZONING TEXT AMENDMENT REGARDING FENCE REQUIREMENTS FOR SWIMMING POOLS Applicant: Blair and Sharon Bury Location: 28160 Boulder Bridge Drive Acting Chair Gagne opened the Public Hearing at 7:12 P.M. Acting Chair Gagne commented that the topic of pool fences had been discussed and debated in great depth in the past. Director Nielsen explained Blair and Sharon Bury had recently constructed a swimming pool on their property located at 28160 Boulder Bridge Drive. Pursuant to Section 1201.03 Subd. 2.f.(8) of the Zoning Code, they were required to enclose the pool with a four-foot, non-climbable fence with self-closing gates. It was the applicants' intent to fence their entire rear yard with a five-foot fence, rather than simply enclose the pool area, except for where their lot abuts a pond at the northwest comer of their property. The applicants had applied for a Zoning Code text amendment that would recognize the water feature (i.e., the pond) as a barrier in lieu of the required fence. In their request letter the applicants referenced an automatic closing pool cover as additional protection against children inadvertently falling into the pool. The applicants' concerns with the fencing requirement were that it obstructed their view of the pond and created a barrier for wildlife coming up from the pond. . Nielsen went on to explain the subject property was zoned Planned Unit Development (P.U.D.), subject to R-1A1S zoning standards. The property contained 58,980 square-feet of area and was occupied by the Bury's home and the new swimming pool. The property dropped offbetween the house and the pond; the CITY OF SHOREWOOD PLANNING COMMISSION MEETING 5 June 2007 Page 3 of6 . elevation changed by as much as seventeen feet. The proposed grading created a terraced effect from the pool area to the pond. With regard to the analysis of the case, Nielsen stated that with any zoning text amendment one of the first things Staff did was research what other cities did with respect to the regulation in question. The Staff checked what the cities of Chanhassen, Minnetonka, Eden Prairie, Plymouth and Maple Grove did. None of those cities allowed pool covers as an alternative to fencing. Two of those cities' ordinances referenced alternatives to fencing (e.g., buildings and walls). In discussing pool covers with those cities' staffs, the common response was concern that nothing guaranteed that the pool will be closed whenever the pool was not in use. He acknowledged the applicants' pool cover was a safety feature when it was closed; it was strong enough to support people standing on it. He commented that in the applicants request letter they stated that several local communities had eliminated the pool fencing requirement. Nielsen explained there were issues with respect to the pond being recognized as a barrier in lieu of the fence. First, the pond could be subject to fluctuation in level. Because the fence could be placed in a wetland, there was no way to ensure that someone could not get around the fence when the water level in the pond was low. There was some indication that previous owners of the property may have altered the wetland boundary. The wetland area adjoining the open water ended abruptly at the applicants' lot. With regard to providing an area for wildlife coming up from the pond, there was nothing that required the fence to immediately abut the pond. The fence could be placed further east of the pond if that was the concern. . Nielsen stated the applicants' property had been platted before the current wetland regulations (which went into effect in 1994), and therefore it was subject to the old regulations. The old regulations allowed a property to be platted right up to the wetland shoreline. The applicants clarified they owned part of the pond. Nielsen then stated the current regulations required a natural 35-foot buffer and a 15-foot setback from the buffer. He related that in the applicants' request letter they stated an individual would have to swim through a soft-bottom pond to get into their yard. With regard to the applicants' concern of obstructing view, Nielsen stated the applicants' property dropped off toward the pond. Their terrace was shaped such that a fence placed at the toe of the first drop would place the fence approximately four feet below the level of the pool deck. Also, there were fences available that were less obtrusive than others and that blended into the landscape better. Those types of fences were frequently used by lake shore owners concerned with their views of the water. Nielsen stated the issue of swimming pool fences was last discussed in 2003, and in 1995 before that. In both instances, the provisions regarding pool fencing was upheld. In fact, the consensus in 1995 was that nonconforming pool fences should be brought into conformity. Shorewood's current requirements were well-founded in concern over safety. As such, Staff recommended that no change be made to the Code at this time. Nielsen stated the applicants' had provided information on what six local cities required with regard to pool fences. He commented that he had just received the information and therefore he had not had time to review those cities' ordinances. Blair Bury, one of the applicants, stated he had met with Director Nielsen to decide if he and his wife should request a variance or should they try and resolve the problem in some other way. Mr. Bury stated Nielsen suggested it made more sense to pursue a text amendment to the Zoning Code. . CITY OF SHOREWOOD PLANNING COMMISSION MEETING 5 June 2007 Page 4 of 6 . Mr. Bury stated his wife had researched the pool fencing regulations of Deephaven, Orono, Minnetonka Beach, Tonka Bay, Mound and Wayzata, six local cities. He reviewed the findings of her research. The cities of Deephaven, Minnetonka Beach, and Orono have no pool fencing regulations. Mound approved a variance in 2006 that allowed a property owner to fence to the waters edge. Tonka Bay and Wayzata required a fence perimeter to the water's edge only. Mr. Bury made the following clarifications about the pond. The pond was a private pond and it was maintained by the Boulder Bridge Homeowners Association. There was no public access to the pond. No motorized boats were allowed on the pond. The water level of the pond was controlled; in the approximate ten years they had lived on the property, they had not seen the pond water level drop more than 2 - 3 inches below its highest level. The pond was a soft-bottom pond. Mr. Bury stated their concern with the obstruction of view if the fence were to go along the pond was an issue for them as well as some of their neighbors. With regard to safety, Mr. Bury stated they wanted to be safe and they wanted to avoid any potential with uninvited people having access to their pool. He stated they proposed a permanent fence to the pond's edge. If that were the case, an individual would have to access their yard through the soft-bottom pond. He then stated a fence would not prohibit an individual from accessing their property if the individual was driven to do so. Mr. Bury explained that the literature on their pool cover stated the cover was a safety device, and he had seen very large individuals stand on one. The cover often was referred to as a horizontal fence. He stated it was their intent to have the cover on their pool when it was not in use or when they were not home; although, he acknowledged that it would be possible to forget to cover the pool. . Mr. Bury suggested the text amendment be specific to private ponds or situations similar to this one. Mr. Bury stated if the request for a text amendment was not approved, they would comply with the existing regulations and fence the area to the edge of the pond. Seeing no one present wishing to comment on this case, Acting Chair Gagne opened and closed the Public Testimony portion of the Public Hearing at 7:25 P.M. In response to a question from Commissioner Meyer, Director Nielsen stated that the two cities' the Staff researched that referenced alternatives to fencing in their ordinances did not allow a pool cover as an alternative. In response to another question, Nielsen stated in the ordinances the Staff researched he did not see any reference to allowing a natural barrier to substitute for a fence. He again stated Staff had not researched the ordinances of the six local cities Ms. Bury had researched. Commissioner Geng stated he assumed one of the reasons for a pool fence was safety of small children. In this circumstance there was an open pond that children could access, and a small child would have to walk through the pond to access the Bury's property. Director Nielsen stated that in discussions regarding pool fences in 2003 it was stated that a pond had a gradual drop off and a pool was more drastic. Commissioner Gniffke expressed concern about the ramifications of changing the pool-fence regulation in the Zoning Code; if the Code was amended it could allow for the opportunity to have many pools that would not have pool fences. . CITY OF SHOREWOOD PLANNING COMMISSION MEETING 5 June 2007 Page 5of6 . Commissioner Meyer shared Gniffke's concern with amending the Code. He questioned how other ordinances had been drafted to allow for a natural barrier without making the regulation too broad. There may other situations where the pond did not have the same characteristics as the pond on the Bury's property. Commissioner Geng questioned how many properties in the City would be able to have a fence next to a wetland edge. Director Nielsen stated only those properties that had been platted before 1994, the year the wetland-buffer regulations were adopted. In response to a question from Commissioner Ruoff, Director Nielsen stated the suggested text amendment would only apply to a property platted before 1994. Any property platted after that could not have a fence next to the wetland. There was comment that the majority of City properties were platted before 1994. Councilmember Woodruff questioned why a variance was not being discussed; it would be easier to be more restrictive in a variance and it would apply to the Bury's property only. Director Nielsen stated it would be quite difficult to prove hardship, which was required with a variance. Nielsen stated it was possible for the Bury's to locate the fence in a different spot, such as the terraced area near the pool. Acting Chair Gagne again stated that in 2003 and 1995 there had been a great deal of discussion with regard to the pool fencing regulation. A lot of thought and consideration had gone into the existing regulation. He commented that the Zoning Code could be changed if it was deemed appropriate. He stated he had a fence in his back yard and his back yard abutted a swamp, yet wildlife have not had any problem accessing his property. . Commissioner Gniffke asked the applicant if there were other properties in the area that had pools and fences near the wetland. Mr. Burt stated he did not know. Mr. Bury clarified it was not their intent to ask for a change that would be applicable to the entire City. He felt their property was unique because of the soft-bottom private pond. He stated a variance would be acceptable, as would an amendment that would only apply to properties similar to theirs. Commissioner Meyer stated he was reluctant to amend the Zoning Code. Commissioner Geng moved, Gniffke seconded, Recommending Denial of the City Zoning Code Text Amendment with Regard to Fence Requirements for Swimming Pools for Blair and Sharon Bury, 28160 Boulder Bridge Drive. Motion passed 5/0. Acting Chair Gagne clarified that the Planning Commission was a recommending body only. The City Council would take formal action on the request. Mr. Bury questioned if it would be more appropriate to request a variance. Director Nielsen explained that the applicants could amend their application to request a variance before it came before Council for action. There would have to be notice given of the public hearing for the revised application. Nielsen stated it would be difficult to prove hardship. Acting Chair Gagne closed the Public Hearing at 7:42 P.M. . . . . CITY OF SHOREWOOD PLANNING COMMISSION MEETING 5 June 2007 Page 6 of 6 3. MATTERS FROM THE FLOOR There were no matters from the floor presented this evening. 4. DRAFT NEXT MEETING AGENDA Director Nielsen stated there would be continued discussion of Planning District 6 at the Planning Commission Meeting scheduled for June 19, 2007. He also stated there may be one C.U.P. for consideration which had a structure on the property which would be considered for preservation as a historic structure. Nielsen commented that the Shorewood Yacht Club (SYC) owners had related to him that in the near future they would be before the Commission with a request to allow some of the SYC's slips to be used for power boats. The SYC owners had engaged the services of the University of Minnesota to conduct a study regarding the community's need to have access for power boats. 5. REPORTS · Liaison to Council Commissioner Gagne reported on matters considered and actions taken at a May 29,2007, Regular City Council Meeting (as detailed in the minutes of that meeting). Councilmember Woodruff reported on the May 142007, Council work session meeting (as detailed in the minutes of that meeting). · SLUC No report was given. · Other None. 6. ADJOURNMENT Meyer moved, Gniffke seconded, Adjourning the Planning Commission Meeting of 5 June 2007 at 7:51 P.M. Motion passed 5/0. RESPECTFULLY SUBMITTED. Christine Freeman, Recorder