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PC-05-03-16 CITY OF SHOREWOOD COUNCIL CHAMBERS PLANNING COMMISSION MEETING 5755 COUNTRY CLUB ROAD TUESDAY, MAY 3, 2016 7:00 P.M. MINUTES CALL TO ORDER Chair Davis called the meeting to order at 7:00 P.M. ROLL CALL Present: Chair Davis; Commissioners Bean, Johnson, Maddy and Riedel; and, Planning Director Nielsen Also present: Mayor Zerby Absent: None APPROVAL OF AGENDA Director Nielsen noted the applicant asked to postpone Item 3.A on the agenda. Bean moved, Maddy seconded, approving the agenda for May 3, 2016, as amended. Motion passed 5/0. APPROVAL OF MINUTES  April 19, 2016 Maddy moved, Riedel seconded, approving the Planning Commission Meeting Minutes of April 19, 2016, as presented. Motion passed 5/0. 1. PUBLIC HEARING – CONDITIONAL USE PERMIT FOR ACCESSORY SPACE OVER 1200 SQUARE FEET Applicant: Dawn and Mike Ziegler Location: 25040 Yellowstone Trail Chair Davis opened the Public Hearing at 7:02 P.M. noting the procedures used in a Public Hearing. She explained the Planning Commission is comprised of residents of the City of Shorewood who are serving as volunteers on the Commission. The Commissioners are appointed by the City Council. The Commission’s role is to help the City Council in determining zoning and planning issues. One of the Commission’s responsibilities is to hold public hearings and to help develop the factual record for an application and to make a non-binding recommendation to the City Council. The recommendation is advisory only. She stated this evening the Planning Commission is going to consider a conditional use permit (C.U.P.) for accessory space over 1200 square feet. Director Nielsen explained Dawn and Mike Ziegler have proposed to construct an attached garage and room additions on their property located at 25040 Yellowstone Trail. The property is zoned R-1A, Single- CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 2 of 14 Family Residential and contains 84,829 square feet of area. The floor area of the new garage when combined with the existing gazebo brings the total area of accessory space on the property to over 1200 square feet in floor area. The Zoning Ordinance allows that by C.U.P. which the Zieglers have applied for. The Zieglers propose to tear down their existing garage behind their house, remove the existing driveway that comes in from Yellowstone Trail, remove a shed, build an addition where the existing garage is, and add a new garage on the north end of the property and access it off of Spruce Hill Court. The proposed garage would contain 1500 square feet of floor area. The existing gazebo, which will remain on the site, has 342 square feet of floor area. That would bring the total area of accessory space on the site to 1842 square feet. With regard to the analysis of the case, Nielsen noted Section 1201.03 Subd. 2.d.(4) of the Zoning Code prescribes criteria for granting a C.U.P. for accessory space over 1200 square feet. He reviewed how the applicant’s plan complies with the criteria. a. The total area of accessory space (1842 square feet) does not exceed the total floor area above grade of the principal structure (4263 square feet including the proposed addition). b. The total area of accessory space does not exceed ten percent of the minimum lot area for the R- 1A zoning district (.10 x. 40,000 square feet = 4000 square feet). c. The proposed garage and addition comply with the setback requirements of the R1-A zoning district. Hardcover on the property will go from approximately 13.9 to 19.5 percent. d. The new garage addition will be integrated into the architecture of the existing home. As such the roof lines, materials and architectural character of the garage are consistent with the principal dwelling. Although four garage doors will be visible on the north elevation, the building is 114 feet from the north property line. Nielsen stated the applicant’s plans are consistent with the Code requirements for accessory space. Therefore, staff recommends approval of the C.U.P. If the Planning Commission makes a recommendation on this request it would be considered by Council on May 23, 2016. Commissioner Bean asked if there are any timing restrictions with regard to moving the existing driveway before the new one is constructed. He then asked if the address would then become Spruce Hill Court. Director Nielsen clarified the address can remain as is; the choice is up to the applicants. Mike Ziegler, 25040 Yellowstone Trail, noted he and his wife would like to keep their current address. He stated they would like to keep the existing driveway as long as they can. The new driveway would be class 5 rock for a period of time (preferably one year) to let the ground settle before putting asphalt down. Commissioner Johnson asked if the existing driveway would be removed while the applicant is using the class 5 rock driveway. Mr. Ziegler confirmed that and stated that keeping the existing driveway during construction would reduce some damage to the site. Seeing no one present to comment on the case, Chair Davis opened and closed the Public Testimony of the Public Hearing at 7:09 P.M. CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 3 of 14 Riedel moved, Maddy seconded, recommending approval of the conditional use permit for accessory space over 1200 square feet for Mark and Dawn Ziegler, 25040 Yellowstone Trail. Motion passed 5/0. Chair Davis closed the Public Hearing at 7:10 P.M. 2. PUBLIC HEARING – APPEAL OF ADMINISTRATIVE DETERMINATION OF NUMBER OF BOATS ALLOWED AT NONCONFORMING DOCK Applicant: Radisson Road Easement Holders Location: 5540 Shore Road (Lot 11) Chair Davis opened the Public Hearing at 7:11 P.M., noting the process will be the same as for the previous item. She stated during this Public Hearing the Planning Commission is going to consider an appeal of administrative determination of number of boats allowed at nonconforming dock at 5540 Shore Road (Lot 11). Director Nielsen explained early this year the staff was asked by some of the Lot 11 easement owners (the appellant) to provide a formal determination as to how many boats could be kept at the Lot 11 easement dock. The dock has been there for a many, many years. Lot 11 is a parcel of land that was set aside in the Radisson Addition as somewhat of a common open bathing beach for use by the residents of the Radisson Addition. Over the years there have been different court cases about the Lot. The most recent court decision defined the easement on the Lot; the original easement did not specify what portion of the Lot the residents had a right to use. The easement is essentially 10 feet wide along the easterly lot line. The portion of the easement along Christmas Lake goes from the lakeshore up to a barbeque pit. The court defined that as the area the easement holders had a right to use. The dock is located off the southwesterly corner of the property. The City received a complaint that a new boat was being docked at the Lot 11 easement dock. Nielsen called the owner and told them they cannot increase the use of that dock. There had been two boats docked there for a number of years. To increase the number of boats would be a zoning violation. Staff determined it was a nonconforming use of property. The City Code states that in order to have a dock there needs to be a house on the property. Accessory uses are intended for the residents living on the property. The woman who wrote the original request, Paula Callies, takes issue with that determination. In his determination letter dated March 31, 2016, Nielsen informed the easement holders that it is a nonconforming use of property. To go from two boats to four boats (which is what they propose) is considered to be an expansion of use of the property. The letter cites a number of provisions in the Ordinance that talk about nonconforming uses, why they are regulated, and not allowing the expansion of nonconforming uses. He thought staff’s determination was backed up by the Lake Minnetonka Conservation District (LMCD) code, which the Shorewood Code adopts by reference, to cover all of the lakes in Shorewood. The City did not want to rewrite all of the various dock requirements. The Shorewood Code uses the LMCD rules. The LMCD code talks about allowing four boats; that can be done provided there is a residence on the property and the boats all being registered to those residents. He reiterated the appellant takes issue with the determination staff has made. He noted the appellant submitted a great deal of information from the court case. He clarified that no one on City staff is trying to take away any right the easement holders have. The dock is considered to be grandfathered in. As long as the dock is used in the same matter that it was used over the years it can remain that way. CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 4 of 14 He explained some of the most notable parts of the court material submitted talk about the rights of the easement holders which include having a dock. It is pointed out in one of the documents submitted that “All of the 18 owners who interposed answers in this proceeding and who therefore have easement rights upon Lot 11 are subject to applicable federal, state and local laws and ordinances including any laws of the City of Shorewood regulating the number of docks and boat slips and boats which can be moored on said docks.” Further on in that paragraph it states “Further, it is obvious that any such rights, which exist, are subject to regulation and limitation by the appropriate governing bodies.” Another document states “In addition, there is nothing in the trial court order which purports to supersede any applicable local law on the subject.” That is the City’s position. The City thinks the court did not grant any number of slips. It simply stated there is a dock there and the easement holders have a right to use it subject to local laws. He reiterated Ms. Callies takes issue with staff’s determination on the nonconforming use issue. He stated it is a vacant lot used for recreational purposes. He reiterated the City Ordinance requires that to have a dock in the first place there has to be a house on the property. A dock is an accessory use to a house. Going from two to four boats is an expansion of a nonconforming use. He stated that earlier in the afternoon the City received new material that suggests that the City does not have a right to regulate public water at all. He forwarded that to the City Attorney for his review. The Attorney has not had time to respond to that. As a result of that, he suggested the Planning Commission take public testimony during this Public Hearing and continue the Hearing to the Commission’s June 7 meeting to allow the City Attorney time to respond to the recent letter from Ms. Callies. Paula Callies, 20465 Radisson Road, noted she submitted the initial letter to Director Nielsen asking for determination on behalf of herself, her husband and the other easement owners. She stated the easement owners are trying to be proactive rather than be served with a zoning violation. They sought direction from the City. She then stated there are other people in attendance who will provide more history on this matter. She stated she would summarize some of the documents she has submitted. She noted that she and her husband have lived in Shorewood for about the last 19 years. She also noted she is a city attorney and had at one time been a member of the Shorewood City Council, the Shorewood Planning Commission and the Parks Foundation. She explained Lot 11 is a unique situation and it has existed since the 1940s. It has always been used for a recreational purpose. While Shorewood may consider it a nonconforming use, it is the use the property has been put to. There has not been a house on Lot 11. The dock has been shared by the easement owners. Initially in the law suit that was described there were more easement owners. Some of them dropped their ownership in the easement by default. Currently there are 14 – 15 people who have easement rights on Lot 11. Therefore, Lot 11 is subject to the owners’ use and easement rights. She clarified the only issue before the Planning Commission and ultimately the City Council has to do with the number of boats. The other uses for the easement are not part of the discussion. She explained that upon her further review she does not think City of Shorewood has any jurisdiction over zoning and regulations of boats on Christmas Lake. Christmas Lake is public water and was determined to be so by the Minnesota Department of Natural Resources (DNR). The DNR regulates public waters unless there has been special authorization by legislature. Legislature created the Lake Minnetonka Conservation District (LMCD) in 1967 or 1969. The LMCD was specifically created to regulate Lake Minnetonka. The legislature also created the White Bear Lake Conservation District. Cities CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 5 of 14 only act through powers granted to them by the legislature. The legislature did not give cities the authority to regulate public bodies of water except as they specifically provided. There is no authority given to the City of Shorewood to regulate Christmas Lake which is partially located in the City of Chanhassen. In order for municipalities to regulate public waters they have to obtain approval for these types of regulations from the DNR. The City of Shorewood has not done that. The only regulations that have been approved regarding Christmas Lake have to do with water skiing; for example, wearing life jackets and the length of the tow rope. The City of Shorewood has no regulatory authority over the number of boats, type of boats and docks on Christmas Lake because it is public water. She reiterated the reason she thinks the zoning administrator’s determination should be overturned is because the City of Shorewood does not have the authority to be making the decision in the case. She stated that even if it were determined that Shorewood does have some authority to regulate the docks on Christmas Lake the operative word in the court decisions is “the applicable regulations” that apply to docks and boats. She does not think Shorewood Code is the applicable regulations; it defaults to the DNR. Even if under Shorewood regulations Lot 11 is considered to be a nonconforming use it is the dock that is nonconforming because there is no house associated with the Lot as she understands it. She explained the four boats they are requesting completely conform with Shorewood’s City Code which she pointed out in the documents she submitted. Four boats are allowed. When something is conforming it is not an expansion of the use. The dock may possibly be considered nonconforming but the number of boats being requested complies with City Ordinances. Therefore, the easement owners should be allowed to have four boats in total just like anyone else can have four boats. She noted this particular easement has some special features because of the court decisions and because of its history. The easement has always been used for docking a number of boats and for other recreational purposes by the easement owners. She clarified no one is talking about taking away rights from the property owners of Lot 11. The owners of Lot 11 are subject to rights of the easement owners. The owners of Lot 11 share in the easement rights but they do not have any more priority than any of the other easement owners. No one easement owner has more rights than another easement owner. The easement owners are governed by how the court decision set out the parameters of the easement and applicable regulations. She again stated if it is somehow determined that the City of Shorewood regulations apply the LMCD regulations do not apply in this case because the City Ordinances provide they can have the four boats. The regulations specifically say that unless otherwise provided these are the regulations that apply. The City Code states you can have four boats. She concluded her remarks by stating the appellant (some easement owners) is asking that the Zoning Administrator’s determination be reversed. They are requesting the Planning Commission recommend to the City Council that the Zoning Administrator’s determination be overturned and that the easement owners be allowed to have four boats at the Christmas Lake dock. Ms. Callies thanked the Planning Commission for its time. Chair Davis opened the Public Testimony portion of the Public Hearing at 7:28 P.M. Pat Aubrecht, 20575 Radisson Road, noted the property she and her husband Paul own, Lots 12 and 13, border Lot 11 on the west. Their title is listed as one of the respondents in the 1992 final Order Construing the Lot 11 Easement. She stated since 1984 they have seen and heard on a daily basis all activities on Lot 11 from their house, porch, yard and dock. They and others in attendance today do not agree with the historical accuracy pertaining to the number of boats moored at the Lot 11 easement dock. CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 6 of 14 During her and her husband’s 32 years of living next door to Lot 11 they have only witnessed two restricted motor boats tied to that dock. There have been two occasions when an easement owner had attempted to moor a boat on an illegal buoy but was always promptly removed by DNR Sheriff Water Patrol due to the inability to obtain a valid permit because they did not own the property. One thing that they all agree on today is that the Lot 11 easement dock and the number of boats moored at that dock are considered by Shorewood to be of nonconforming use because no resident or dwelling reside on the property. Shorewood has always maintained that only two boats are allowed. She noted that she and her husband Paul support Director Nielsen’s zoning determination for the reasons stated in their letter to Nielsen. They requested that the Planning Commission recommend denial of the appeal and uphold the intent of Shorewood zoning regulations that all nonconforming uses shall eventually be brought into conformity with no expansion. She thanked the Commission for its time. Tom Hayes, 21135 Christmas Lane, noted that a majority of the easement holders are not in favor of this petition. He stated there were 18 people who prevailed in the court case. But, there are many more people who on their deeds at Hennepin County say they have a deeded easement for egress and ingress or words like that for bathing uses. There are a lot of people who have a vested interest in what the property is like. Approving this will again create a level of chaos in determining which of the easement holders will get to have a boat. He asked if the person who owns Lot 11 gets to have a boat docked in front of his property. To him it is common sense that Director Nielsen’s and the Shorewood City Attorney’s opinions and the laws continue to prevail. Kris Hayes, 5560 Shore Road, noted the property she and her husband own borders Lot 11 on the east side and the entrance onto the easement is next to their home. Her husband’s family has had a 30 year history of year round residency on their property and another 30 years of summer residency prior to that. She noted that she and her husband strongly object to any increase in the number of boats moored at Lot 11 and that they support the rejection to the appeal. They look directly at Lot 11 and the easement from their home, yard and dock. They think that increasing the number of boats in such a contained area would negatively impact the serenity and beauty of the lakeshore they enjoy and look at daily. Increasing the number of boats would increase water safety issues for nearby swimmers and boaters and it would create additional parking and traffic pressures on narrow Shore Road. The addition of boats would make it feel like they live next to a marina because of the noise, traffic and appearance associated with that type of arrangement. For this reason they support the current and historical practice of having no more than two boats moored on the dock at Lot 11. She thanked the Planning Commission for its time. John Joyce, representing the owners of 5550 Shore Road, noted 5550 is the second property east of Lot 11. He stated his family has been associated with those properties since 1937 when his grandfather Joseph Hayes purchased those properties from the Radisson Inn. He explained Lot 11 was originally designated as an access for swimming and other recreation. He thought it was given to his grandfather to act as the caretaker of it. He noted his opposition to adding any boats at that dock; he thought two is more than adequate. He stated for all of this time the easement holders have not paid the tax on the land or had insurance on it. They simply are accessing the Lake. They do not maintain the property or take some form of ownership of it. Back in the 1970s on two occasions his uncle and his parents tried to split what is now 5550 and 5560 and to allow them to build a house which would incorporate Lot 11. That was denied by the City of Shorewood. The previous owner of the property now owned by the Willes tried to build a house on there and it was also denied. The owners of Lot 11 have not had full use of their property but they have had to allow the access. He again noted that those people associated with 5550 Shore Road are opposed to increasing the number of boats at the Lot 11 dock. CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 7 of 14 Steve Streed, the attorney of Elena Blanca Curt Garcia who is a two-thirds owner 20430 Radisson Road, noted Mark Garcia is a one-third owner of that property. They are mother-in-law and son-in-law. He stated they had not been notified of the appeal or of the original petition even though they have easement rights by deed to Lot 11 for swimming ingress and egress. He then stated if an expansion of use on the dock was granted to some easement holders he asked why that would not be granted to his client. If it were not granted to his client he asked if his client would not be precluded from getting a use on that dock in the future. He thought his client has been left out of the process. He expressed concern that some type of arrangement would be sealed on behalf of the appellants and therefore impliedly against his client. Mark Garcia, 20430 Radisson Road, noted he came to this Public Hearing because he just received the letter. He also noted that he has lived on the property for 36 years and never knew he could dock a boat at the Lot 11 dock. He went on to note he is not opposed to having four boats dock at that dock. He stated that because his father passed away he is forced to do something with their property. Allowing four boats at the Lot 11 dock may enhance the value of their property. Paul Seifert, 5515 Radisson Entrance, stated the first five property owners who spoke all oppose allowing four boats to dock at the Lot 11 easement dock and they all have access to Christmas Lake. He explained that at one time there were more than 30 easement owners prior to this situation going to court. There were homes on some of the properties and others were vacant lots. During the first motion in the court (he thought Paul Aubrecht was there) Mr. Ahern’s attorney (Ahern wanted to build a house on Lot 11 so people were going after him) moved that anyone not legally represented by that particular hearing were going to be in default. The Judge gave him that immediately. Only 12 people paid the legal bills. At that time it became clear who the easement owners were. Later Steve Larson, one of the twelve, divided his property creating two more building sites bringing the number of easement owners to 14. When he was doing some deed research several years ago he found another easement owner (now the Cossettes but before that Bob Meeson) bringing the number of easement owners to 15. He noted only 12 people who are easement owners paid the legal bills. He noted he had called Mr. Garcia’s father who did not want to participate back then. He also noted for the record that the Wille property had previously been owned by Phyllis Burnes; she had no money. Other easement owners understood the easement added significant value to her property so they paid her legal fees. He went on to note that David Walker previously owned the Joyce property. Mr. Walker was having employment issues so other easement owners paid his legal fees. He stated the City notified property owners within 500 feet yet the easement property goes maybe 2000 feet. That demonstrates that there should not be just one type of legislation. The property is easement property and it should be treated differently. He then stated the legal case ended up doing two things. It defined the easement area. It also affirmed all of the testified recreational uses. Prior to that easement owners used the entire part of Lot 11. He noted there is a website www.lot11.org that has certain court exhibits on it. All the recreational uses are affirmed in the photographs on the website. One of the photos shows three power boats and he thought the photo was from the 1950s. Mr. Seifert stated if the issue about the number of boats is approached using the law and the favorable opinions of two courts then four boats for 14 families is a reasonable settlement. He thanked the Planning Commission for its time. CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 8 of 14 Michael Cohen, 20640 Radisson Inn Road, noted that he has been to Shorewood City Hall many times during his 28 years of residency over this issue. Every time information has been requested, people were told that four boats were grandfathered in for the Lot 11 easement. He stated after he first moved to his property he came to City Hall and looked at certain maps and there was a notation about Lot 11. The Lot 11 issue has divided his neighborhood tremendously. The residents that are opposed to allowing four boats own properties with lakeshore. The people who are in favor of allowing four boats own property that does not have lakeshore. The court case determined that Louis Cohen gave Mr. Joyce’s grandfather the lot for the enjoyment of the neighborhood. During the discovery of the case it was testified that the boats were for off-shore residents so they could enjoy Christmas Lake from the Radisson Inn Addition just like residents who live on lake front property can. He noted that he does hold insurance for everything that appears on his deed; the easement does appear on his deed as an attachment. He thanked the Planning Commission for its time. Bill Hittler and Donna Watz, 2910 Garland Lane N., Plymouth, noted they own the cabin on 20525 Radisson Road. He stated they support the Zoning Administrator’s determination and want to ensure the easement owners are protected. They are also easement owners. Ms. Watz’s family bought the cabin in 1972. Ms. Watz stated she went to the cabin growing up and so did her children. She echoed the comments made about swimming rights and safety issues that could result from increasing the number of allowable boats at the Lot 11 easement dock. The easement is a very small area for the families that enjoy swimming rights there. Mr. Hittler stated from his perspective the court materials and the usage have no bearing on the number of allowable boats. They thanked the Planning Commission for its time. Suzanne Cossette, 5570 Shore Road, noted her and her husband Paul’s property is three properties east of Lot 11. They have lived there since 2001. Their letter to Director Nielsen indicates they support the City’s determination that there is a limit of two boats that could be moored in front of Lot 11 according to both the City Ordinance and the LMCD rules. Their property has direct sight lines to Lot 11. They have never seen more than two boats kept permanently at that dock. Lot 11 easement rights provide a unique opportunity for neighborhood gatherings and recreational use of Christmas Lake. They think an increase in the number of boats would interfere with all easement holders and the adjoining neighbors and their children to safely use the congested area for swimming, fishing and visiting with others on the dock. She thanked the Planning Commission for its time. Leslie Wille, 20545 Radisson Inn Road, introduced her son Lucas. She stated she and her husband Michael own the 20545 property. Their property is adjacent to Lot 11. They are also legal easement owners over part of Lot 11. Their property is on the onshore side. She explained that for more than 15 years they owned Lot 11; they sold it to Mr. Hittler and Ms. Watz last May. For the entire time they owned Lot 11 only two motorized boats were moored at the Lot 11 easement dock and one of the boats belonged to her and her husband. It was accepted by all that the Lot 11 owner would be allowed to keep one motorized boat at the dock and the easement owners would be able to keep one additional boat there. As neighbors and easement holders she and her husband strongly object to any increase in the number of boats that can be moored at the Lot 11 easement dock. They agree with the City’s original ruling and they support rejection of this appeal. She thanked the Planning Commission for its time. Anne Joyce, 20485 Radisson Road, noted that she and her sister Sally Duran own the 20485 property. They are easement holders for Lot 11. Their property is about two lots north and east of Lot 11. They support the City’s ruling in this matter because of safety and density concerns. They do not recall there being more than two boats docked at the Lot 11 easement dock. She thanked the Planning Commission for its time. CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 9 of 14 Tad Shaw, 5580 Shore Road, explained he was on the Shorewood City Council when Mr. Ahern, the then owner of Lot 11, appeared before the then Council requesting a building permit. That Council denied the request primarily because of the then existing easement. At that time he told the parties involved that the City could and would not correct the situation caused by the easement. They would have to go to court to straighten things out. The parties did so and the current easement was crafted by the court. The boat issue was handled by effectively saying that the easement owners had boat rights and the matter was regulated by the City as to the number and types. The court opted out of making any noise about that. Two boats was the determination by the City in accordance with City Ordinances and LMCD rules. He thought it should remain at two boats. He only remembers seeing two boats docked over night at the Lot 11 easement dock. On one document page he thought he read some improper words. He stated some document included in the meeting packet referred to the 75 year history of boats at Lot 11. The court decision made all of the early history irrelevant. That portion of the document and its information was fully considered by the court case. It has no bearing on today. He suggested removing that reference from the document he was referring to and start at the point where it stated six property owners exercised their right to have a boat tied to the dock over a period of time. He thought it would be useful if the dates of use were shown and whether or not the use was seasonal or a portion of the season. The last paragraph of the document was misleading to him. It stated something like most recently there have been two boats tied to the dock not four. But the owners list is correct. One boat was owned by Mike Wille and the other boat was jointly owned by the three easement owners mentioned. Mr. Shaw noted he thought Director Nielsen did a good job of outlining the issues. Mr. Seifert noted he is perplexed by the neighborhood response. He explained there are legally 15 easement owners. Nine of the owners formally signed the appeal letter or 60 percent. If two of the easement owners who already have direct lake access are removed that leaves 13 easement owners. That means 70 percent of the owners signed the appeal. Ms. Wille stated she spent several hours at the title office the previous week attempting to match up the numbers to the certificate of titles to determine who has easement owner rights. She came up with 19 people. The Friendly’s had been left off of the list; they are new easement owners. The Cossettes had never been included. The Punkes are not on the list and there is another family that is not on the list of easement owners. Chair Davis closed the Public Testimony portion of the Public Hearing at 7:59 P.M. Chair Davis asked how large the boats are that people want to dock at the Lot 11 easement dock. Mr. Seifert stated not greater than 20 feet. Davis asked how the owners determine who can dock their boat there. Mr. Seifert stated that has never been an issue. He has had a boat at the dock for 35 years. He explained the reason they are seeking assurance that four boats can be docked there is two properties have new owners and they have younger children and boats and are just getting into water skiing. He commented that he suspected it would start to be an issue because some of the easement owners are getting older and younger people are moving in. He noted the easement owners have self-directed themselves before. Davis stated she assumes all of the owners have a boat. Mr. Seifert clarified only two of the easement owners without lakeshore property have boats and noted that all property owners around the lake have boats and many of them have two. In response to another comment from Davis, Mr. Seifert clarified that generally the easement owners get along very well. When new owners move into the Radisson Inn Addition neighborhood and around the lakefront properties then sometimes people butt heads. Davis asked if people water ski in the little bay. CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 10 of 14 Ms. Callies noted that Christmas Lake is a large lake. A lot of people water ski in the Lake. She clarified that in terms of how the boat dockage would be allocated the City does not get involved in that. She stated there is precedent around Lake Minnetonka and around Christmas Lake for how to divvy up the spots that might be available. The easement owners can figure that allocation out; it does not need to be regulated. She explained the initial determination is about how many boats are allowed to dock there. All the easement owners do not have a boat but they want to ensure there is some dockage space available because that could increase the value of their properties when they are sold. Even though the easement is shared it is still an asset to the properties the easement owners own. Nine of the fifteen (the majority) of easement owners want the opportunity to use the easement in a way that other lakefront property owners can. She noted the Christmas Lake Shores division in Chanhassen has dockage for four boats of its shared easement (she was not entirely sure that was the correct name). Commissioner Bean stated that for the sake of discussion if the City does have jurisdiction over the number of boats allowed at the dock and the City does deem the request for four boats as expansion of nonconforming use then he thought distribution is somewhat relevant to understanding how the easement owners operate and what mitigation might be needed for those owners. Ms. Callies clarified the easement owners are not part of a formal association. The group does have regular meetings as easement owners. Bean stated there could be a Lot 11 association that would help in determining who could dock their boat at the dock. Ms. Callies stated one could be formed. Ms. Callies stated the court document stipulates how the easement can be used in general. In response to a comment, Ms. Callies explained there is such a thing as “sleeping on your rights” and that is what happened to some easement owners in the prior litigation. There are also new owners who buy properties and think they have an easement to Christmas Lake. The easement is on the titles to the properties. This easement is very broad. She reiterated the only issue that some of the easement owners are asking the Planning Commission and Council to decide is the number of boats. The other issues are private and between private property owners. In response to a comment from Commissioner Bean, Ms. Callies clarified that only nine of the easement owners have filed a joint appeal to the Zoning Administrator’s determination. Some of the easement owners do not want to have any more boats docked at the Lot 11 easement dock. The nine who are part of the appeal believe four boats should be allowed. Commissioner Bean stated he had some concern that some of the easement owners indicated they were not involved in the discussion. Ms. Callies noted the number of boats has been a topic of discussion for some time. Ms. Callies stated that at any time easement owners who had concerns about a new boat being docked at the Lot 11 easement dock could have contacted other easement owners rather than file a complaint with the City. They could have tried to seek a determination rather than seek a prosecution of someone. One of the easement owners (possibly Mr. Hayes) stated that there is an interpretation that certain rights were lost by easement owners. He asked if a home owner gets to have a boat. Ms. Callies stated she does not think she should be debating the people in the office. She decided to answer the question. That same owner asked if the person who owns Lot 11 can dock a boat at the Lot 11 easement dock. Ms. Callies clarified the person who owns that property shares an easement with the other easement owners. There is no priority for the owner of Lot 11 to be able to dock a boat there. The determination through the courts is CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 11 of 14 that all of the owners share the easement rights. That same easement owner stated he thought the owner of Lot 11 should be able to dock a boat at that dock. Commissioner Bean stated the easement extends across the entire lakefront side of Lot 11. Therefore, the owner of Lot 11 does not have access to the lake other than through the easement. Ms. Callies confirmed that. Commissioner Maddy stated the Planning Commission is discussing number of boats and not easements. Ms. Callies thanked him for that clarification. Commissioner Riedel stated that based on what he has heard two boats are often docked at the Lot 11 easement dock and sometimes three. Therefore, from his perspective allowing four boats would require an exception based on the Shorewood Code. He explained that the Shorewood Code permits one boat for every 50 feet of shoreline and the length of the easement is 115 feet. The number of boats can be increased to four provided all of the boats are owned by the registered people who live in the residential structure on the site. There is no residential structure on the site; the use of property is nonconforming. He asked what the argument is for extending the number of boats to four. Ms. Callies clarified it is not an extension to four boats. That is an incorrect premise to start with because four boats are allowed. She also clarified that she is not agreeing that Shorewood regulates the number of boats allowed. But if it is determined Shorewood does, then the four boats are allowed under Section 1201.03 of the Code and noted she is not sure if that is the correct section. Commissioner Riedel stated the code allows one boat for every 50 feet. Ms. Callies noted that is the LMCD regulation; there is no authority for the LMCD to regulate Christmas Lake. She noted the Shorewood Code states as otherwise stated in the regulations which say four boats. She stated because of the way the easement is, the history of it and the establishment by the court this is not a typical situation. It is the dock that is nonconforming because there has not been a residential structure on the property. All of the boats that would be docked at the Lot 11 easement dock would be owned by easement owners. Commissioner Riedel asked if the rule of one boat for every 50 feet of shoreline applies to the easement. He stated the LMCD rules are adopted by reference. He again asked what the argument is for four boats. Ms. Callies reiterated that the Shorewood Code would allow up to four boats and that all of the easement owners would own the boats. A Section of the Code talks about the owners of the boats having to be registered property owners; the easement owners are. Riedel stated the Code states the registered people have to live in one residential structure. Ms. Callies stated the lot is unique and does not neatly fit into a typical situation. Riedel stated the argument that it should go from the current usage of two boats to four because it is permitted by regulations depends upon the actual reading of the regulations. Ms. Callies reiterated it is a unique situation that does not exactly fit into the Code. Director Nielsen stated it is his determination that the LMCD rules apply by reference. He then stated the City received new information from Ms. Callies challenging the City’s authority to regulate public waters. He went on to state from his perspective the dock is a nonconforming use and that the City has adopted the LMCD Code for the convenience of uniformity for all of the lakes in Shorewood. He explained one boat is allowed for every 50 feet of shoreline. To go to four it has to be proved that the residents of the house own the boats. He noted that if Attorney Keane decides there is some merit to Ms. Callies challenge then it is a different matter. Ms. Callies stated if the dock is truly nonconforming then another interpretation of this is more than two boats have always been docked there. That position varies among the easement owners. She noted the CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 12 of 14 nine appellants believe that four boats is a reasonable number to allow. She reiterated there is no expansion of the so called nonconforming dock or the number of boats. When asked if the dock was going to remain the same size, someone in the audience stated it may have to be made into a U shape. Ms. Callies stated if it is confirmed that Shorewood does not have the authority to regulate public waters then it does not have the authority to regulate docks. She then stated even if the Shorewood regulations were to apply someone else could build a u-shaped dock. She asked why the easement owners could not have a u-shaped dock. She noted the discussion this evening is about the number of boats. She stated if the dock the easement owners want would conform with City regulations and if the City regulations would apply she asked what basis the City would have to deny the Lot 11 easement from having a conforming dock. Commissioner Riedel stated the intent of City’s argument is the dock is a nonconforming use and the City’s position is to try and decrease the nonconformity. Ms. Callies stated that once the dock is a given then the easement owners should be permitted to have the same number of boats any other property owner could have and any shaped dock they could have that conforms with the City Code. Bean moved, Johnson seconded, continuing the Public Hearing for an appeal of administrative determination on the number of boats allowed at a nonconforming dock to the Planning Commission’s June 7, 2016, meeting pending review by legal counsel of the matters of jurisdiction over the shoreline. Commissioner Maddy stated having received a challenge to the City’s authority to control anything on the shoreline of all of Christmas Lake he noted that he would be comfortable moving forward with making a recommendation on the appeal being considered to Council. He thought the City Attorney should be able to provide an opinion on that challenge within a week. Director Nielsen asked Ms. Callies if the motion on the table is debatable. Motion passed 5/0. Chair Davis continued the Public Hearing at 8:27 P.M. Chair Davis recessed the meeting at 8:28 P.M. Chair Davis reconvened the meeting at 8:31 P.M. 3. PUBLIC HEARING – REZONE PROPERTY FROM R-2A, SINGLE AND TWO- FAMILY RESIDENTIAL TO C-1, GENERAL COMMERCIAL. Applicant: John Benjamin Location: 24250 Smithtown Road The applicant asked to postpone this item. CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 13 of 14 4. PUBLIC HEARING – ZONING CODE TEXT AMENDMENT REGARDING ALTERNATIVE ENERGY REGULATION (continued from April 19, 2016) Director Nielsen stated in an email earlier in the day he asked that this item be continued again to the Planning Commission’s June 7, 2016, meeting. That email included attachments about the proposed Zoning Code text amendment regarding alternative energy regulation. The Commission has not had time to review the documents. Chair Davis opened the Public Hearing at 8:32 P.M., noting the Hearing was continued from April 19, 2016. Bean moved, Riedel seconded, continuing the Public Hearing for a Zoning Code text amendment regarding alternative energy regulation to the Planning Commission’s June 7, 2016, meeting. Motion passed 5/0. Chair Davis continued the Public Hearing at 8:33 P.M. 5. CONSENT AGENDA Director Nielsen stated David Moe was granted a setback variance not quite a year ago. Mr. Moe’s property is currently for sale. He asked for an extension to his variance just in case the sale of his property falls through. He anticipates the Planning Commission would consider a redo of the variance during its July 2016 meeting because the pending buyer may want to refine the plan a little. The extension would be for six months from the time the original one expires. With regard to Item 5.B, Nielsen explained there is a small sliver of land on Howard’s Point Road that went through a tax forfeiture process in 2008. The intent had been to sell the small property to one or both of the two adjoining property owners. The property was either not put on the public action in 2008 or no one wanted it. Some property owners have contacted the City about purchasing the forfeited parcel; they have easements across it. The City purchased the parcel a few days ago and it intends to sell it to them. The Commission must make a recommendation to Council about the sale of public property. Maddy moved, Johnson seconded, Approving the Motions Contained on the Consent Agenda. A. Petition for Extension of Variance Approval Petitioner: David Moe Location: 20920 Forest Drive B. Review and Comment on the Sale of Howard’s Point Road Tax-Forfeited Parcel Motion passed 5/0. 6. MATTERS FROM THE FLOOR There were no matters from the floor presented this evening. 7. OLD BUSINESS / NEW BUSINESS None. CITY OF SHOREWOOD PLANNING COMMISSION MEETING May 3, 2016 Page 14 of 14 8. DRAFT NEXT MEETING AGENDA Director Nielsen stated the two public hearings continued this evening will be on the June 7, 2016, Planning Commission meeting. 9. REPORTS • Liaison to Council Commissioner Johnson reported on the items considered and actions taken during Council’s April 25, 2016 meeting (as detailed in the minutes of that meetings). • SLUC Director Nielsen stated he had intended to go to the April 27, 2018, Sensible Land Use Coalition session which was about park dedication fees but he did not go. He intends to purchase a DVD recording of the session. • Other Commissioner Maddy noted Shorewood, MN Code of Ordinances Section 201.04 Subd. 5 Rules and Procedures states “The Planning Commission shall conduct its meeting consistent with Robert’s Rules of Order and other procedures consistent with the statutes of the State of Minnesota or with this chapter.” Director Nielsen asked Commissioner Maddy if he found anything about continuing. Maddy stated the very dated copy of Robert’s Rules of Order at the dais states “… only limited debate to postpone to another date and that debate can’t be the merits of the question it has to be the reason for postponement.” 10. ADJOURNMENT Davis moved, Maddy seconded, adjourning the Planning Commission Meeting of May 3, 2016, at 8:40 P.M. Motion passed 5/0. RESPECTFULLY SUBMITTED, Christine Freeman, Recorder