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090407 pl mn CITY OF SHOREWOOD COUNCIL CHAMBERS PLANNING COMMISSION MEETING 5755 COUNTRY CLUB ROAD TUESDAY, 4 SEPTEMBER 2007 7:00 P.M. MINUTES CALL TO ORDER Chair Schmitt called the meeting to order at 7:01 P.M. ROLL CALL Present: Chair Schmitt; Commissioners Gagne, Geng, Gniffke, Hutchins, and Meyer; Planning Director Nielsen; and Engineer Landini Absent: Commissioner Ruoff APPROVAL OF MINUTES 7 August 2007 • Gagne moved, Hutchins seconded, Approving the Planning Commission Meeting Minutes of 7 August 2007 as Amended in Item 4, Page 12, delete “Chair Schmitt closed the Public Hearing at 8:42 P.M.” Motion passed 5/0/1 with Meyer abstaining due to his absence at the meeting. 1. C.U.P AMENDMENT – UPPER LAKE MINNETONKA YACHT CLUB (continued from 7 August 2007) Proposer: City of Shorewood Location: 4580 Enchanted Point Chair Schmitt re-opened the Public Hearing at 7:02 P.M. (which was continued from August 7, 2007), noting the procedures utilized in a Public Hearing. He explained items recommended for approval that evening would be placed on a September 24, 2007, Regular City Council Meeting Agenda for further review and consideration. Director Nielsen stated the City had received additional correspondence with regard to the City considering a revised resolution clarifying the original resolution granting the Upper Lake Minnetonka Yacht Club’s (UMYC) 1977 conditional use permit (C.U.P.) for nonconforming use of its property. The UMYC was formerly known as the Upper Lake Minnetonka Yacht Club. He explained because the Public Hearing had been continued there would likely be additional public comment and additional comment by the law firm representing the UMYC. Jack Strothman, with the law firm of Lindquest and Vennum PLLP, stated he was the UMYC’s principal attorney on this matter; he was not able to be present at the Public Hearing on August 7, 2007. He commented that he had been involved in defending the UMYC in the trial regarding the criminal complaint filed by the City against the UMYC. Mr. Strothman explained that the materials he had prepared (which were not distributed to the Commission until this evening for a variety of reasons) were lengthy; he suggested the Commission may want to review them in detail at its convenience and discuss them with the City’s attorney. He commented that he also provided the Commission with the transcript of the court proceeding on April 24, 2007. He stated that in his document he referenced various City records that the Planning Commission had previously received copies of from City Staff. He then stated in his document he detailed how his CITY OF SHOREWOOD PLANNING COMMISSION MEETING 4 September 2007 Page 2 of 14 interpretation of those records was different from the City’s interpretation. He also stated he was aware the City had received resident complaint about the UMYC’s nonconforming use of its property. Mr. Strothman highlighted some of the comments made in the document he had prepared. The decision to dismiss the criminal proceeding was based on the history of the City’s ?? actions regarding the UMYC’s 1977 and 1978 C.U.P.s and the use was not restricted to sailboats. Between 1977 and 1993 there had been 29 occasions on which the City Council dealt ?? with the C.U.P. and its language, and another nine occasions by the Planning Commission; a suggestion was never made to change the language in the C.U.P. In City correspondence regarding the UMYC’s 1992 application for a variance to build a ?? clubhouse on its property, there were suggestions that restrictions to sailboats could be made as a condition of approval and there was a reference to the requirement that the halyards (on sailboats) had to be tight. Although the Planning Commission recommended the variance for approval, the Council denied that request in 1993. There had not been any action on behalf of the City Council, Planning Commission or ?? Staff from 1993 to 2006 regarding limiting the UMYC’s use to sailboats; that action occurred after the City received resident complaints in 2006. In 1977, there were Public Hearings held for C.U.P. permit requests for both the UMYC ?? and the Shorewood Yacht Club (SYC); the Public Hearings were held at the same Planning Commission meeting with one following the other. Both C.U.P.s were recommended for approval by the Planning Commission – the SYC C.U.P. was limited to “sailboats only” and it included a reference to halyards being tied off; the UMYC C.U.P. did not include any limitations on the type of boats. As part of its C.U.P. the UMYC did accept a reduction in the number of slips it could have from 42 to 30. As part of its 1977 application request, the UMYC had also made a request to build a ?? clubhouse; that request was not granted. Public records indicate that the UMYC allowed powerboats to use its slips for decades; it ?? was not a change in use. The UMYC had done a terrible job of populating the marina; very few boats had been in ?? the marina. The marina was not in the best of locations. However, some portion of the boats had always been powerboats. The UYMC had been operating as a “non-profit organization” for 40 years with ?? community involvement for the benefit of the community. The Minnetonka Yacht Club’s (MYC) 36-slip marina was currently populated entirely by ?? powerboats; its slips were rented by Club members. Over the last three decades the marina had been mostly populated by powerboats. The rental of slips for powerboats had helped the Club to grow its membership. The renters of the slips were responsible, and if they were not they had to leave the marina. There had been very few “strictly powerboats” located at the UMYC in any year. ?? There had been one complaint issued in 2007 against an individual using the UMYC ?? property; because that individual did not respond positively to a warning it received from the UMYC they were no longer allowed at the UMYC marina. The UMYC had not received any other complaints; it could not respond to complaints the City may have received if it was not notified. Mr. Strothman stated from his vantage point it would not be legal for the City to consider a revised resolution clarifying the original resolution granting the UMYC’s 1977 C.U.P. John Barlow, Vice Commodore of the Upper Minnetonka Yacht Club, stated his position was a volunteer position. He then stated the UMYC was a small organization that dated back 40 years; and there were CITY OF SHOREWOOD PLANNING COMMISSION MEETING 4 September 2007 Page 3 of 14 third-generation members of the UMYC. He commented that the UMYC had not been very aggressive in marketing its services prior to 2006 as it didn’t have a need to until Hennepin County reclassified the UMYC property. That reclassification resulted in its property taxes being increased to more than $27,000 from approximately $5,500. He explained the marina was the UMYC’s chief source of income. He stated the controversy at hand was not about motorboats in the marina; it was about UMYC’s survival. Without revenue from the marina the UMYC could not afford to pay its property taxes. He commented that the need to rent slips to powerboats was not a scheme. He also commented that he had been a member since 1975 and it was the worst time in the UMYC’s history. Mr. Barlow explained that every boat at the UMYC’s marina had a motor on it, and some of the boats also had sails; the sailboats required a motor to get from the marina to a sailable part of the lake. Four of the boats currently docked at the marina did not have sails. One of the boats had been used 10 – 11 times in 2007; that boat was owned by a retired couple and one of them had been a UMYC member many years. The second of the four boats was owned by the executive of a company and his wife, and that man had been a long-time sailor. The third boat was owned by a woman who was a high-powered executive of a high-tech company and her husband; she and her family had used their boat approximately 20 times in 2007. The fourth slip was rented by an analyst for an investment banking firm, but he currently did not dock a boat there. There could possibly be another two powerboat owners that may be interested in renting a slip from the UMYC. Mr. Barlow stated on the UMYC property was a sign stating “This is a private marina located in a residential area. Please be courteous to our neighbors. You are responsible for your guests. Limit noise like you would at your own home. Absolute curfew is 12:00 AM midnight until sunrise. No exceptions. Enjoy boating and be safe. UMYC Board of Directors. For any questions, comments or complaints contact John Barlow 612-759-7161.” He then stated his home phone number was 952-472-6132, and he wanted residents to call him about problems with people at the marina. Chair Schmitt opened the Public Testimony portion of the Public Hearing at 7:26. P.M. Lee Labore, 4445 Enchanted Point, stated four of his neighbors were present this evening. He then stated he felt “bad” that the UMYC’s property taxes were more than $27,000; but, the combined property taxes for he and his four neighbors were far in excess of $27,000. If he and his four neighbors came before the Planning Commission to request more boat slips on their lots so they could rent them out to make money to pay property taxes, he was confident the Commission would say that was in violation of the City’s Ordinance. Mr. Labore then quoted a statement made in the UMYC’s C.U.P. application dated April 25, 1977: “The Yacht Club may develop under the conditions of the City and LMCD, dockage and/or mooring facilities for 34 sailboat slips or lift spaces, 8 buoys, and 2 slips for Yacht Club Committee boats. Four dinghies or prams may be used by sailboat owners.” He then stated from his vantage point there never had been any confusion regarding what the C.U.P. pertained to. Originally the residents were upset because the property was residential property and it should not be used for sailboats. He stated when the C.U.P. was granted for 30 slips for sailboats the UMYC indicated that was what they wanted and they would not come before the Council to ask for anything else. He also stated in 1992 he circulated a petition to Enchanted Island residents stating the UMYC wanted to build a club house in which it would serve alcohol and the UMYC had broken its promise. Mr. Labore stated he had nothing against the UMYC; he thought it had done a remarkable job teaching children how to sail. He felt bad that the UMYC did not have the participants in its sailing program that it would like to have. He suggested the UMYC market its sailing school in the schools. He stated he was not in support of the UMYC renting slips for powerboats, that would be contrary to its original application and to the position the Planning Commission and Council had taken for over 30 years. He quoted a CITY OF SHOREWOOD PLANNING COMMISSION MEETING 4 September 2007 Page 4 of 14 statement in UMYC’s 1977 application “and the Club property shall not be rented to any individual or organization”. He then stated the UMYC ensured the residents at that time that the UMYC would be a sailing yacht club; the residents had supported that for years. He commented that the size and speed of powerboats had increased significantly over the years. He stated for the sake of justice, continuity, and protecting Enchanted Island the UMYC must remain a “sailboats only” yacht club. James Thibault, 4565 Enchanted Point, stated his property was located across from the UMYC. He stated at the Public Hearing meeting on August 7, 2007, he had reviewed a document he and his wife had submitted to the City stating their support for a revised resolution. He quoted excerpts from a memo to Planning Director Nielsen from UMYC Commodore Skip Jewett dated November 12, 1992: “The Upper Minnetonka Yacht Club is a sanctioned yacht club entity, operating under rules of the Inland Lakes Yachting Association. All yachts are sailboats only, except for one powerboat, which is used for officiating races.”, and “The use is significantly different from marinas, where boat use and times are determined by owners throughout a 24 hour day. UMYC has rules regarding property, moorings, and use, which have been drafted to eliminate neighborhood complaints and problems.” He stated he had participated in the meetings in 1976 and 1977, and when an agreement was finally reached in 1977 it was his understanding that the UMYC was authorized for 30 sailboats. He was not aware that anything different was occurring until he noticed four powerboats at the UMYC, it was at that point they complained to the City. He stated he hoped the City would adopt a revised resolution clarifying the 1978 resolution. Scott Brown, 4560 Enchanted Point, stated he lived next door to the UMYC. He commented he was a former member and Commodore of the UMYC. He stated there had been multiple complaints to the UMYC; he and his wife had made many complaints face-to-face to Noel Neuman (UMYC Commodore) or John Barlow (Vice Commodore). He stated the complaints were delivered verbally because of his friendship with the individuals; he did not think it was necessary to formally document them. There had been a statement made earlier that there had been only one complaint in 2007; that was clearly in error. He then stated that problems at the UMYC were still ongoing. He explained that over the past weekend sailors arrived at the UMYC around 9:00 A.M. and after a morning of sailing departed shortly after noon; later in the day two groups of power boaters came, and one of the groups never left the UMYC property (it was a party area). Mr. Brown stated in 2005 the UMYC made a definite and distinctive change in its behavior. At a January 2005 UMYC Board meeting (for which he wrote the minutes) there was discussion about how the UMYC could make money; renting slips for powerboats was part of that discussion. The documentation for membership had also changed; it went from marketing renting slips to various size sailboats to marketing renting slips to various size sailboats or powerboats. That had not occurred in previous years. He then stated no sailing lessons had been given at the UMYC in 2007. He also stated a member of the Sailing School had stated to the UMYC membership that the school was teaching people how to sail, and the money that was put into the Sailing School was driving an increase in membership and paying for itself. He commented that when he reviewed the records for the last five years; he was not able to find an instance where a child who had taken lessons at the Sailing School had joined the UMYC. He stated he liked the UMYC and its membership, and the UMYC served a purpose for people on that end of Lake Minnetonka; but the UMYC property needed to be used for a sailing club because that was what was asked for. He commented that the UMYC did not keep its judges’ powerboat at the UMYC; that boat was docked at another slip for a cost of approximately $11,000 per year. Keith Morical, 3942 Enchanted Lane, stated his property was located approximately one mile from the UMYC property. He commented he was a UMYC member. He stated he had visited the UMYC at least three times per week, at various times of the day and night, since the ice went out in spring of 2007. He then stated he had observed two groups of people on the property (other than sailors or slip renters coming or going) during those visits. One group was a family that rented a slip and it was having a family CITY OF SHOREWOOD PLANNING COMMISSION MEETING 4 September 2007 Page 5 of 14 picnic; they stayed on the property for less than two hours and were relatively quite while on the property. The other group consisted of neighboring residents that were not UMYC members. He stated he was in charge of a sailing class (learn to sail your own boat) in 2007; eight new UMYC members were a result of that class. Chair Schmitt closed the Public Testimony portion of the Public Hearing at 7:44 P.M. Commissioner Hutchins questioned when was the first time the UMYC rented slips for powerboats. Mr. Strothman responded for decades. Hutchins clarified he was referring to true powerboats, not sailboats with a power motor on them. Strothman stated sailboats with power motors on them were powerboats. Strothman then stated he had gotten the LMCD records regarding what types of boats were docked in the slips; he could not determine if the boats’ owners paid for the slips for not, but he did know powerboats went back for decades. Mr. Brown stated he purchased his property next door to the UMYC in 2005; and he saw the first true powerboat in a rental slip in 2006. Mr. Barlow stated he was Commodore during the low-water era of 1986 and there were powerboats then; also, the records showed that slips were rented for powerboats in the 1990s including one to an individual that rented from the UMYC in 2006 and as far back as 1998. Commissioner Hutchins stated Mr. Jewett’s letter to Director Nielsen dated November 12, 1992, stated all yachts were sailboats only. Mr. Strothman stated that was part of the application process and indicated what the UMYC would have going forward; as part of that negotiation process the UMYC stated it would reduce its number of slips to 25 from 30 if the variance for a club house was approved. Strothman then stated during that process the recommendation by the Planning Commission included restrictions to sailboats as a condition of approval. Hutchins quoted an excerpt from the letter: “All yachts are sailboats only, except for one powerboat, which is used for officiating races.” Strothman stated he was not involved at that time and was not sure what that was about; it was his understanding the negotiation was about a club house and the UMYC was willing to make the commitment to sailboats only. Mr. Brown stated when he was Commodore (which he believed was 1997) the UMYC Board spent hours debating why powerboat owners wanted to rent slips at the UMYC. Brown then stated it was stated in UMYC minutes that the UMYC was not supposed to rent slips for powerboats. At that time the UMYC Treasurer was aggressive and was willing to rent a slip for powerboat use as the UMYC would have a paying customer. He commented that renting a slip for powerboat use was a violation. Commissioner Gagne stated he had a lot of history with the topic of the UMYC property. From day one, the UMYC was to be a yacht club, and to him yacht club meant for sailboats. The UMYC had wanted to construct a club house on the property, and that request was denied. He stated far back in time there had been discussion that the UMYC needed one powerboat for judging races, and his recollection was that was okay. He could understand why the UMYC would want to rent its slips for powerboats because of the potential revenue from the rentals and because of its high property taxes. He then stated it was his personal opinion that the City Council would have to make a decision. From his vantage point, the UMYC was supposed to be a yacht club with sailboats and maybe one or two powerboats for judging races and that was what it was designed for. The residents had compromised on sailboats, even though they did not want any nonconforming use in the residential neighborhood. He thought the intent of the original special permit/C.U.P. should be adhered to. Commissioner Geng stated after listening to the public comment at this public hearing and the one on August 7, 2007, he was impressed that all of the neighbors who spoke were supportive of the sailing function of the UMYC. The long-time residents thought the restriction to sailboats was consistent with the compromise they had agreed to, and that was important to him. Enchanted Island was entirely a residential neighborhood, and a sailing yacht club was a nonconforming use in an R-1C/S, Single-Family Residential/Shoreland district. CITY OF SHOREWOOD PLANNING COMMISSION MEETING 4 September 2007 Page 6 of 14 Geng then stated in the transcript of the court proceedings the attorney representing the UMYC stated “with respect to the issue of taxes, I think that that is a question wholly outside of what this case is about.” He then stated when it was convenient for the UMYC to disassociate itself from the property tax issue during the criminal preceding it did so. Now the UMYC was stating it needed the rental it could receive from renting slips for powerboats because of its high property taxes. He found that change to be “disingenuous”. Geng went on to state that a lot of this controversy had been “placed on the Planning Director’s doorstep”. He noted the transcript of the court proceeding indicated it was the State of Minnesota versus the UMYC. He doubted the Planning Director or any other member of the City staff could have initiated the law suit without approval from the City Council. Commissioner Gniffke stated the long-term intent of the UMYC had been for a sailing yacht club in a residential area. It appeared as if there was a desire to become a marina in the residential neighborhood; the area was not zoned for commercial use, and he thought a marina would be classified as a commercial use. Commissioner Hutchins stated he thought the property tax issue was a “non-issue” because financial hardship had no bearing on the C.U.P. The spirit of the intent of the original application for a special use permit and the agreement that was forged between the UMYC and the neighboring property owners, with involvement from the City, was for a sailing yacht club. He then stated when he looked at the UMYC website it was stated that the UMYC was quiet, affordable, and sailboat friendly. The website identified the marina features as twelve slips with Crepeau docks for sailboats less than 30 feet long, eighteen shoreline lift spaces for dingy and scow sailboats. The website had no mention of rental for powerboats. The remainder of the website (although much of it appeared to be out of date) spoke fully of the UMYC’s purpose of sailing. From his vantage point, he sensed the rental of slips for powerboats was because of financial need; it appeared to be an attempt to take undue advantage of an administrative oversight in the resolution which stated “boats” rather than “sailboats”. He did not think the rental of slips for powerboats was within the intent of the original agreement. Chair Schmitt stated from a purely planning perspective, a marina was not an appropriate use in a residential area. He did not think the Planning Commission would have recommended a C.U.P. for commercial use for a marina with powerboats in the residential area when the original agreement was approved. At least one of the other yacht clubs on Lake Minnetonka was located in a commercial district and was not in a residential neighborhood. He can sympathize that the population of sailboats was on the decline. Financial hardship did not factor into a C.U.P. for nonconforming use. It appeared the UMYC found an oversight with the language of resolution granting the C.U.P. to satisfy the UMYC’s financial needs. He stated commercial use in a residential district would be inappropriate. Gagne moved, Hutchins seconded, recommending approval of a revised resolution clarifying Resolution No. 30-78, and patterned after the 1969 approval, limiting the use of the facility to 30 sailboats and two power boats for the use of the Club. Motion passed 5/0/1 with Meyer abstaining. Chair Schmitt closed the Public Hearing at 8:02 P.M. 2. MINOR SUBDIVISION. Applicants: Dan and Melissa Nelson Location: 25865 Birch Bluff Road Director Nielsen stated Dan Nelson owned the property at 25865 Birch Bluff Road, and Mr. Nelson proposed a minor subdivision of his property. Nielsen explained the property was zoned R-1A/S, Single- Family Residential/Shoreland, and it was occupied by the applicant’s house. The property contained CITY OF SHOREWOOD PLANNING COMMISSION MEETING 4 September 2007 Page 7 of 14 approximately 2.61 acres (113,596 square feet) of area, of which 37,701 square feet was wetland. The site was characterized by relatively steep slopes that dropped from an elevation of 980 on the north side of the site to 931 at the wetland on the south side of the site. The property was substantially wooded with large deciduous trees forming a dense canopy. The existing home was accessed via a private driveway that was located in the right-of-way of Second Street, a “paper street” that had never been improved. He commented that Clara Avenue was also a paper street. He stated the property owners had been granted an incidental use of right-of-way permit in 2004, prior to them purchasing the property. Nielsen then explained the proposed subdivision would result in two lots. Both lots would exceed the width requirements of the R-1A district. The westerly lot (Parcel A) with the existing house on it would contain 45,895 square feet of area, exclusive of wetland area; the easterly lot (Parcel B), or new lot, would contain 40,000 square feet of area, exclusive of the wetland area. The applicant proposed that the new lot would share the portion of driveway that lies within Second Street with the existing home. From the northeast corner of the property a new driveway would split off at the intersection of Second Street and Clara Avenue to serve a new home on Parcel B. With regard to the analysis of the case, Nielsen reviewed the significant issues that were raised by applicant’s request with respect to site alteration and access. A. Site Alteration. The land in question was extremely sensitive from an environmental perspective. The plans presented result in approximately half of the site being altered by tree clearing and grading. Existing grades are at 33 percent over much of the property. The proposed grades result in disturbed slopes as steep as 46 percent – all of which would result in extensive tree removal. A tree inventory had not been signed by a landscape architect, licensed forester or certified arborist. The applicant had not submitted a tree replacement plan. The Natural Resources chapter of the Shorewood Comprehensive Plan recommended “…12 percent grades will be considered a ‘warning flag’.” It also said development on slopes greater than 12 percent must be reviewed and approved by the City Engineer. Finally, the Plan recommended that development which would result in disturbed slopes exceeding 3:1 (33 percent) should not be allowed, except in extreme situations. A situation would include allowing an existing lot of record to be put to use, but not necessarily the creation of a new lot. The plan submitted did not include the 35-foot wetland buffer area and the fifteen-foot setback from the buffer. If the subdivision was approved, the applicant must provide legal descriptions of the wetland buffer area and deed a conservation easement to the City over the buffer area. No erosion control plan had been submitted with the plans. The applicant’s home was served by a single sanitary sewer line that extended across their property along Second Street into the sewer system on Birch Bluff; the system was a lift system which meant the system had to be pumped. If the applicant’s lot were to be subdivided, and if Block 5 were to be subdivided, there would be a potential for four individual pump sewer lines in a very narrow piece of right-of-way. If both lots were to be subdivided, there should be a right-of-way wide enough to accommodate the installation of City sewer. B. Access. In the original plat of Mann’s Addition to Birch Bluff, three large lots were created along a network of platted rights-of-way that were never developed as City streets. The subject property was currently accessed by a private driveway located on a public right-of-way known as Second Street. The driveway was approximately 12 feet CITY OF SHOREWOOD PLANNING COMMISSION MEETING 4 September 2007 Page 8 of 14 wide, which was all the existing right-of-way could accommodate; that left five feet on each side of the traveled surface for snow storage. Under Shorewood rules a second property could share this as a common driveway; that was what was anticipated for the property to the east of Second Street (Block 5), another existing lot of record. If this access was to serve three properties, as proposed by the applicant, it would require, at minimum, a private road. Shorewood’s Subdivision Code required all lots to have frontage on a public street. While private roads were highly discouraged, the Comprehensive Plan allowed them where no other alternative existed, where no more than three properties were served, and where a 50-foot wide easement with an adequate turn-around was provided. A Fire Code access road (a 20-foot paved surface) was the minimum design for a private road. Even a private road design could not be achieved within the 22-foot wide Second Street right-of- way. Consequently, the existing lot of record on the east side of the right-of-way (Block 5) could not be built upon unless an additional right-of-way or easement was acquired and the fire access road was constructed, placing the entire cost of it on that owner. Further, if the current request was approved, it was reasonable to expect that there may be a desire to subdivide Block 5 in the future; that would be precluded because the number of properties served would then exceed three. Any development, beyond allowing the existing lots of record to be built upon and being served by a shared driveway, should involve a cooperative effort by the affected land owners. If it appeared that more than three lots could be achieved from the properties, the existing “paper street” network (Second Street and portions of Clara Avenue) should be upgraded and improved as City streets. In this regard, additional right-of-way for Clara Avenue and Second Street should be required with any subdivision approval. C. Process. When the applicant initially contacted staff, the applicant was advised that the request should be submitted as a formal preliminary plat, rather than a minor subdivision. This was due to the right-of-way issues, the dedication of drainage and utility easements, and the dedication of conservation easements for the wetland. In addition, the platting process would involve a public hearing, while a minor subdivision would not. Based on neighborhood concerns at the time the right-of-way permit was approved in 2004, there was considerable interest in the development of the subject property. For these reasons, staff stands by its recommendation that the division be processed by formal platting. The applicant has chosen, as was his right, to apply for a minor subdivision, citing the cost of formal platting as his reason. Nielsen stated based upon the preceding, Staff did not recommend approval of the applicant’s proposed subdivision; at minimum, it should be considered a premature subdivision. No more development should occur beyond the use of the existing lots of record until the affected property owners acquire the necessary right-of-way to comply with City standards. If consideration of a subdivision was to continue, it should be done through the formal platting process, addressing the concerns raised. Nielsen noted Dan and Melissa Nelson were present this evening. Dan Nelson distributed various aerial photos of his property. He then addressed some of the issues reviewed by Director Nielsen. On the drawing depicting how a house could be built on the new lot while adhering to ?? zoning regulations, the surveyor located a driveway to the house starting at the corner of CITY OF SHOREWOOD PLANNING COMMISSION MEETING 4 September 2007 Page 9 of 14 Second Street and Clara Avenue. If the driveway was moved 30 feet the loss of trees would be reduced to two. With regard to the 46 percent grade, he stated that was the grade in existence today. The ?? grade was that severe because the City had requested the existing private driveway be placed on Second Avenue, and it was adjusted slightly on to their property to accommodate the installation of full storm sewer system. The highest slope of the land was from the corner down to the wetland; there would not ?? be anything built close to the drop-off. The proposed grade of 34 percent could be modified. There was a property on Lake Virginia where the grade was significantly greater than 34 percent, and it was reduced by putting in a great deal of fill. The surveyor’s plan did not reflect the 35-foot and 15-foot setbacks; that was an error by ?? the surveyor and it would be corrected. The narrowest part of the driveway was approximately 15 feet wide. The reason the ?? driveway was not 22 feet wide all the way was because of the placement of a neighbor’s retaining wall and another neighbor’s driveway. His house was required to have a fire-suppression system installed in it to meet fire code. ?? He assumed any house that would be built on the proposed new lot would also have to have a system. Shorewood rules allowed for a second property to share a common driveway, and it was ?? assumed that was anticipated when the area was originally platted. All regulations were met when Second Street and Clara Avenue were developed. The property owners of Block 5 had no interest in selling their property at this time. ?? Although the City would prefer the applicants’ wait until Block 5 was sold, they should not be penalized for wanting to subdivide prior to that happening. Access to Block 5 could be accommodated by using Mapleview Court; therefore, there ?? would not be an issue to access the proposed new lot off of Second Street. Private roads had been allowed. There were three houses on Third Street that were ?? accessed off a private drive off of Birch Bluff. On Grant Lorenz Road there were two houses that were accessed via a single drive; also there were five other houses on Grant Lorenz Road that were accessed via a single road. The sewer system to the existing house was originally supposed to be a gravity-flow ?? system; water conditions under Birch Bluff Road prohibited that. An E-1 System was then installed; the system was recommended by City staff. The cost to do a formal plat to subdivide the property was estimated to be $30,200 for the ?? survey. To date the applicants had spent over $6,000 on survey costs. In the Ridge Road area, a property with a more significant grade than the applicant’s, had ?? recently been approved for a subdivision, even though it did not meet all the City’s regulations. When the right-of-way permit was approved in 2004, there had been concerns expressed ?? by the neighbors to the west and east. Their concerns had been addressed. A licensed arborist had been to the site, and marked and counted the trees on one half of ?? the lot. The legal description of his property was Block 6 (not Lot 6 as stated on the City’s ?? documents regarding this case); blocks were meant to be split into individual lots. Ms. Nelson commented that the Minnehaha Creek Watershed District had no interest in their property at this time; it would be interested at the time the property was further developed. Mr. Nelson stated there was no stream that ran through his property (as some people assumed), it was a trench that was dug by the property owner of Block 5 to drain water from his property into the wetland. CITY OF SHOREWOOD PLANNING COMMISSION MEETING 4 September 2007 Page 10 of 14 Greg Buckley, 25885 Birch Bluff Road, expressed concerns about access. If the proposed subdivision and access were to be approved, he questioned what the impact would be on lots located to the east of the Nelson’s property. He would also want to have the existing private driveway covered with something other than gravel, to minimize noise and dust from increased traffic. He also had concerns about the existing width of the road. Chair Schmitt explained the Planning Commission had to abide by the existing City code; the Code that existed at the time Second Street and Clara Avenue were built was different from today. He stated he thought access to the property and its impact on access to Block 5 would be a major issue. He then stated he thought the Planning Commission needed more information before it could make a recommendation on the request to the Council. He commented he would prefer to see a preliminary plat unless the applicant had another way to demonstrate how the road would be engineered to meet existing safety standards and the City’s current Ordinance. Mr. Nelson stated they had only received one quote for a formal plat. He clarified that it was a private driveway not a road that provided access to his property; the driveway had a 10-ton per axel rating. Chair Schmitt stated the width of the private driveway was more concerning if it were to be used to access multiple properties. Director Nielsen clarified the applicant proposed the existing private driveway would be shared with the proposed new lot; the issue was if/when Block 5 were subdivided a house could not be built on the new road unless a private road was installed (three houses required a private road; two houses could be accessed from a private driveway). Chair Schmitt stated the applicant should not be held responsible for the impact on future potential development on Block 5 as he could not control it. Director Nielsen clarified the City’s Ordinance did speak to premature subdivisions. This proposed subdivision (and private driveway access) would leave a future new subdivided lot from Block 5 without access. The Ordinance did require the “big picture” be considered as part of planning process for minor subdivisions. Chair Schmitt stated if Block 5 were to be subdivided and access to both lots were to be off of Mapleview Court (which ends in a cul-de-sac), that could potentially become an issue if the road had to be lengthened. That was one example of the long-term planning considerations that must be taken into account when considering a subdivision. The impact for future development of Block 5 must be taken into account. Mr. Nelson commented the property owners of Block 5 had stated to him that City water and sewer would come down Mapleview Court to their property. Commissioner Meyer stated he shared many of the same concerns Chair Schmitt expressed. He thought it was important that the property owners of Block 5, and other neighboring property owners, be informed of the request and the possible impact on a future subdivision of their property, and they should have the opportunity to comment on it. Commissioner Gagne stated the Planning Commission had never made a recommendation based on cost. Director Nielsen clarified if the application were denied the worst case would be the applicant could not reapply for a minor subdivision for six months. He then stated the applicants survey stated it showed proposed contour lines; there appears to be confusion as to whether they are proposed or current. CITY OF SHOREWOOD PLANNING COMMISSION MEETING 4 September 2007 Page 11 of 14 In response to a question from Commissioner Meyer, Director Nielsen stated if the existing grade exceeded the 33 percent allowed in the Comprehensive Plan that was different than allowing someone to create a grade in excess of that; the development did not cause the grading limit to be exceeded. After ensuing discussion there was consensus that this request could be continued to a future Planning Commission meeting subject to the applicant providing the Planning Commission with the following additional information. The impact on future subdivision and development of Block 5, including a proposed plan ?? for how it could be developed in conformance with the City Ordinance, and input from the current Block 5 property owners. An updated survey to reflect setback requirements, and accurate and correctly labeled ?? topography information. A code analysis which identified how the plan would conform to the City Code. ?? Gniffke moved, Gagne seconded, continuing the request for a minor subdivision for Dan Nelson, 25865 Birch Bluff Road, to the October 16, 2007, Planning Commission meeting, subject to the applicant providing the additional information listed above. Motion passed 6/0. 3. MINOR SUBDIVISION Applicants: Jack and Anne Carter Location: 5705 and 5725 Smithtown Way Director Nielsen stated Jack and Anne Carter, the applicants, had withdrawn their request for a minor subdivision. 4. 7:20 P.M. PUBLIC HEARING – C.U.P. FOR FILL IN EXCESS OF 100 CU. YDS. Applicants: Tom and Debra Mahoney Location: 6150 Deer Ridge Chair Schmitt opened the Public Hearing at 8:49 P.M. Director Nielsen stated Tom and Debra Mahoney, 6150 Deer Ridge, proposed to raise the level of their back yard to create a level play area for their children. The project would involve bringing in approximately 1800 cubic yards of fill material and the construction of a rather large retaining wall. The City’s zoning regulations require a conditional use permit for fill in excess of 100 cubic yards; therefore, the Mahoneys have requested a C.U.P. Nielsen explained the property was zoned R-1C, Single-Family Residential, and contained approximately 53,503 square feet of area. The lot sloped from south to north with approximately 25 feet of grade change between the back of the house and the north (rear) property line. The area in which the fill would be placed had been cleared. A relatively dense deciduous wooded area encompasses the rear yard of the site. Nielsen then explained the retaining wall would be terraced, with the upper portion being approximately 240 feet in total length. The lower portion of the wall would be approximately 50 feet from the rear lot line and 10 feet from the side lot lines. The wall would be approximately 18.5 feet tall at its highest point. The two walls would be separated by a five-foot deep terrace, in which the applicants propose to plant dogwoods. They proposed arborvitae for the top of the wall, and the wall would be constructed of Keystone masonry block. The plans for the retaining wall had been prepared by a company called Civil Solutions Group, LLC. CITY OF SHOREWOOD PLANNING COMMISSION MEETING 4 September 2007 Page 12 of 14 With regard to the analysis of the case, Nielsen stated from a planning perspective the C.U.P should address the potential impact on surrounding properties. Because the retaining wall would be 18.5 feet at its highest point, it was recommended the wall be broken up into three sections, rather than two, with no section being taller than six feet. The terraces should be no less than five feet apart and should be landscaped, based upon an approved landscape plan, prepared by a registered landscape architect. The additional terracing should allow more light to the landscaped areas. The landscaping should break the wall up and soften the view from surrounding properties; it would not have to completely block the wall from view. The landscaping should include, but need not be limited to, evergreen plant materials. The landscape plan should be accompanied by copies of bids for the landscaping, upon which a letter of credit or cash escrow for one and one-half times the amount of the bids should be required. The security should be in place for two growing seasons. Nielsen then stated the location of the wall was considered to be too close to the side lot lines. It is recommended that the wall be moved to be 10 feet from the drainage and utility easement; the additional ten feet would allow a skid-steer vehicle to maneuver along the wall without compacting soil over the tree root system. Tree protection fencing should be placed at the drainage and utility easement in order to protect the root zone of the trees along that border from construction traffic. Engineer Landini made the following comments, which were documented in his report. The 1800 cubic yards of fill would require approximately 150 12-yard-capacity truck ?? trips across Deer Ridge Road and adjoining roads. The construction access for the fill and retaining wall would be tight; therefore, a ?? temporary construction easement from the adjoining property was recommended. Techny Arborvitae should be planted outside the geogrid reinforcement area; the geogrid ?? would interfere with tree root development. Low permeable soil should be used to cap unit core fill to reduce the amount of water ?? behind the wall. If the ground cover stayed pervious as was shown in the plans, runoff or drainage should ?? remain similar to existing conditions. The area should be graded to minimize runoff over the top of the wall. Engineer Landini recommended the following conditions be included as part of the C.U.P. An escrow account should be opened to repair infrastructure damages in the amount of ?? $5,000. A structural engineer should inspect the wall during and after construction for quality ?? assurance and plan conformance; the results should be reported to the City. Mike Jaunich, with Alpine Landscape, stated he would be installing the retaining wall. He stated he did not foresee any problems accommodating the recommendations of Director Nielsen and Engineer Landini. He explained the top section could be reduced so it was no higher than 6 feet above grade. The applicants would prefer to keep the retaining wall to two sections because of cost. He stated plantings other than arborvitae could be planted in the geogrid area. The fill would be brought in from inside the proposed wall. Therefore, there would not be any traffic on the outside of the wall and he did not see a need to move the wall 10 feet from the drainage and utility easement to allow a skid-steer vehicle to maneuver along the wall without compacting soil over the tree root system. The neighbors had already been contacted about a temporary construction easement and had no problem with it. Deb Mahoney stated they wanted to install the retaining wall to assist in leveling out their steep back yard; it did not allow for their two boys to play in the yard without major supervision and concern. The neighbors had already agreed to a construction easement. The retaining wall would be built from the inside out; there were a variety of options that could be used for construction access that would not CITY OF SHOREWOOD PLANNING COMMISSION MEETING 4 September 2007 Page 13 of 14 damage the existing trees. They had previously cleared out dead trees and buckthorn; unfortunately, they cleared some from neighboring properties by mistake and those items would be replaced on those properties. They were working with a landscaper on plantings, and currently 50 – 60 trees were planned to be planted. She stated they would prefer to have two tiers, and she thought the landscape could be done such that it would be a nice view for the neighbors. Mr. Jaunich stated there would be a fence on the top tier of the retaining wall. Mr. Mahoney explained there would be a layer of trees on top of the top tier and behind that would be a 6-foot wrought-iron fence. Director Nielsen stated he wanted to ensure the fill on the back side of the northeast corner of the wall would not occur within the root zone of the trees. He stated the landscape plan should identify the location of the root zone of the existing trees. Chair Schmitt stated his major concern was safety; but the fence should eliminate that concern. He questioned if the applicants considered boulder walls because of the natural look. Mrs. Mahoney stated their first choice was boulder block, which was more expensive. She commented the neighbors would not see the property line. She explained the keystone block that would be used would have a rock face, and they would be of varying sizes. She thought the amount of plantings they would put it in would make it denser than it was today. Director Nielsen noted the fence had to be 5 feet back from the edge of the wall. Gagne moved, Hutchins seconded, Recommending Approval of Conditional Use Permit for Fill in Excess 100 Cubic Yards for Tom and Debra Mahoney, 6150 Deer Ridge, subject to Staff recommendations which were modified to include a two-tier retaining wall with each tier no higher than six feet, a six-foot wrought-iron fence on the top tier of the wall with plantings on each side of the fence, and no trees being damaged as a result of the fill. Motion passed 6/0. Chair Schmitt closed the Public Hearing. 5. DISCUSS PLANNING DISTRICT 6 This item was continued to a future Planning Commission meeting. 6. SET DATE FOR JOINT PLANNING COMMISSION/CITY COUNCIL MEETING The Planning Commission selected 16 October 2007 at 6:00 P.M. for a joint meeting between the City Council and the Planning Commission to discuss Planning Commission activities. The meeting would be held prior to a Planning Commission meeting. 7. MATTERS FROM THE FLOOR There were no matters from the floor presented this evening. 8. DRAFT NEXT MEETING AGENDA Director Nielsen stated there was a Conditional Use Permit for a Multiple Signage Plan, a Conditional Use Permit for Accessory Space over 1200 square feet, and a request for an amendment to a Conditional Use Permit to allow more than 50 percent powerboats at the Shorewood Yacht Club slated for the 2 October 2007 Planning Commission Meeting Agenda. CITY OF SHOREWOOD PLANNING COMMISSION MEETING 4 September 2007 Page 14 of 14 9. REPORTS Liaison to Council • Commissioner Hutchins reported on matters considered and actions taken at the August 13, 2007, and August 27, 2007, Regular City Council meetings (as detailed in the minutes of those meetings). Council Liaisons were selected as followed: September 2007 Chair Schmitt October 2007 Commissioner Geng November 2007 Commissioner Meyer December 2007 Commissioner Gagne January 2008 Commissioner Gniffke SLUC • No report was given. Other • There was no other business presented this evening. 10. ADJOURNMENT Gagne moved, Gniffke seconded, Adjourning the Planning Commission Meeting of 4 September 2007 at 9:44 P.M. Motion passed 6/0. RESPECTFULLY SUBMITTED, Christine Freeman, Recorder