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PC-06-07-16 CITY OF SHOREWOOD COUNCIL CHAMBERS PLANNING COMMISSION MEETING 5755 COUNTRY CLUB ROAD TUESDAY, JUNE 7, 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, Maddy and Riedel; Planning Director Nielsen; Engineer Hornby; and, Council Liaison Sundberg Absent: Commissioner Johnson APPROVAL OF AGENDA Maddy moved, Bean seconded, approving the agenda for June 7, 2016, as presented. Motion passed 4/0. APPROVAL OF MINUTES  May 3, 2016 Maddy moved, Riedel seconded, approving the Planning Commission Meeting Minutes of May 3, 2016, as presented. Motion passed 4/0. 1. PUBLIC HEARING – CONDITIONAL USE PERMIT FOR REMOVAL OF OVER 400 CUBIC YARDS OF SOIL AND DEPOSITING OVER 100 CUBIC YARDS OF FILL Applicant: Thomas Wartman Location: 27135 and 26985 Edgewood Road Chair Davis opened the Public Hearing at 7:01 P.M. noting the procedures used in a Public Hearing. She explained the Planning Commission is composed 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 removal of over 400 cubic yards of soil and depositing over 100 cubic yards of fill. Director Nielsen explained Tom Wartman has requested a C.U.P. for fill in excess of 100 cubic yards for his property located at 26985 Edgewood Road. He is proposing to bring in about 3000 cubic yards of fill to improve the buildability of the property. During its May 9, 2016, meeting Council approved a subdivision of that property into two lots but it has not been recorded yet. There is a new house being built on the property located at 27135 Edgewood Road and that necessitates the removal of 1200 yards of fill away from that site. That fill will be brought to the Wartman property. Removal of more than 400 cubic yards of fill also requires a C.U.P. Both C.U.P.s are being handled as one matter. Because this is CITY OF SHOREWOOD PLANNING COMMISSION MEETING June 7, 2016 Page 2 of 16 more of an engineering matter he asked Engineer Hornby to come to this Public Hearing to answer any questions the people may have. Hornby had provided comment on both of the items. Some owners of properties located near the Wartman property have expressed concern about bringing in the fill. He thought Hornby’s review addresses those concerns. The 26985 property is zoned R-1A/S, Single-Family Residential and contains 88,202 square feet of area. The land is surrounded by single-family residential development, also zoned R-1A/S. The 27135 property is more than an acre in size. The most significant issue with this type of application is drainage. Where is the water going to go? Would it adversely impact the surrounding properties? Engineer Hornby has been working with Mr. Wartman and his engineer to make sure drainage issues are resolved. The meeting packet contained a copy of the grading plan for the Wartman property. The front of both of the two (the subdivided) lots will be filled to accommodate the buildings on the two lots. The property has a fair amount of water flowing through it mostly coming from the east and mostly going toward the west. Water is stored in the area marked with yellow on the grading plan. Engineer Hornby’s recommendation is that both the rate and volume of the water flowing off of the site has to be controlled. He displayed a drawing (distributed to the Commission that evening) showing how that area would accommodate the same amount of water storage as the current lot does. Drainage is not an issue on the 27135 lot; the lot where the fill is being removed from. Commissioner Bean asked Engineer Hornby to describe what the arrows on the drawing are attempting to show. Engineer Hornby explained on the grading plan included in the meeting packet the yellow outer ring contour indicates where water is currently stored on the site. There is a private storm drain that drains to the northeast across another property and into the lake. He had told the developer that can remain but it has to be relocated because of the location of where the building pad would be. For the proposed scenario the developer has been told that he needs to maintain the same amount of volume on site as the current site has. He also needs to provide a one-inch rain fall event for 25 percent impervious surface on the lot. That is the maximum amount of impervious surface allowed in a shoreland overlay district. The developer increased the size as shown on the drawing Nielsen distributed; it provides that volume. As a requirement the developer needs about 12,200 cubic feet of storage; they are providing 12,300 cubic feet. The lot grading has to maintain the drainage for Edgewood Road which currently flows into the low area. An attempt has been made to account for the amount the lot currently stores as well as the future impervious surface that would be generated on the lot. Commissioner Riedel asked if the water is stored in the form of a marshy area. Engineer Hornby stated it is a low area and he assumes there is some infiltration that occurs now. He has not found standing water there. A water service was put in for a new house on a property a few lots to the west near some very sandy soils. There may be a layer of sand where the storage infiltrates. It looks like there was an area that was excavated as a pond on the property to the west. It is somewhat an extension of a larger low area that would overflow to Noble Road if it overflowed. Riedel then asked if the lot that is located between the subject lot and Noble Road is higher in elevation. Hornby stated the lot directly to the west is about the same elevation. Chair Davis stated the owners of the properties along Noble Road behind the subject property have concerns about drainage. Hornby stated based on what the developer’s surveyor found the emergency overflow from the subject property CITY OF SHOREWOOD PLANNING COMMISSION MEETING June 7, 2016 Page 3 of 16 overflows on to Edgewood Road before it goes over the lots to the south. He clarified that after a heavy rain event there may be some water that is stored. Per the City Ordinance the development cannot make the drainage worse. Chair Davis opened the Public Testimony portion of the Public Hearing at 7:11 P.M. Julie Scheurer, 26930 Edgewood Road, noted she and her husband live across from the Wartman property to the north. Their property is downhill across from the lake. She stated they have concerns that the drainage off of the Wartman property will increase because of the proposed project. She has not heard anything about the height of the property after the fill has been added to the site. Will the fill be spread out or will there be a big mound of fill? Depending on what is done it will make a big difference on drainage. She is concerned because there is a manhole on the Wartman property and she does not know where it goes. It may come down through her property. She is not aware of there being any easement obtained by anyone that allows for drainage to flow over her property. She explained she and her husband did a project about 15 years ago that involved putting in a retaining wall and a cement pad down by their home and built an attached garage. They saw a clay pipe in the retaining wall. They asked the builder at the time what that pipe was. Everything was fine for a while and then one year later there was a lot of water flowing out of that pipe across their driveway pad near their home then across their lawn into the lake. She expressed concern that it could be from the manhole. She remembered seeing Mr. Wartman coming on to their property and looking at the pipe. She does not know what he concluded. That was the only time they observed drainage flowing across their property. When water first started flowing out of the pipe they went across the street to find out where the water was coming from; that is when they saw the manhole. It was an old manhole that was not secured. There was a torrent of water going into it. Sometime later they went over there to look at the manhole again. It had been secured with a new cover and it had been relined with new brick. She asked where the drainage goes from the easterly most lot of the two subdivided lots that are directly across the street from her property. Her concern is only about damage to her property that could occur if the volume and rate of flow increase. She stated if a couple of mounds were placed on flat land it seems like a creek or moat would be created that would direct that the flow into the manhole. It visually looks like it will always be the lowest point. She expressed concern about lake quality because it is unwise to have unfiltered water flow into the lake. Currently the relatively flat area of the two Wartman lots has acted as somewhat of a filtration area for the water coming from the surrounding contiguous area which she thought was higher. That was the low point of the neighborhood other than the lots along the lake. Visually to her all of the properties drain onto the Wartman lot. She is concerned that the water may end up flowing on to her property instead. She asked what the maximum height of the added fill can be in any one place. Director Nielsen stated for the westerly of the two Wartman lots it goes up about six feet and for the easterly lot it would be close to five feet. That would be at the steepest points. Ms. Scheurer then asked if there have been calculations made to determine how much fill is needed to achieve those heights. The staff memo states the C.U.P. is for fill in excess of 100 cubic yards. Nielsen stated the amount of fill that would be brought onto the sites would be a total of about 3000 cubic yards. She stated she would like to have a map of the drainage of the surrounding properties and the pipes. CITY OF SHOREWOOD PLANNING COMMISSION MEETING June 7, 2016 Page 4 of 16 In response to a comment from Chair Davis, Engineer Hornby noted there is no City storm sewer in that area and stated he thought that Ms. Scheurer was talking about the storm drain on Mr. Wartman’s property. He thought there was a beehive or a catch basin grate. Ms. Scheurer asked how much responsibility the City would take by allowing that much fill to be brought onto the site and creating a moat that ultimately directs the water to the manhole if the water does in fact come through her property. Tom Wartman, 28120 Boulder Bridge Drive, noted his uncle moved to the 26985 Edgewood Road property in 1939/1940 with his wife. He explained that Ms. Scheurer is referring to a grate on a storm drain that had been installed sometime during the 1920s. It is a 6-inch or 8-inch clay pipe. It has a flat grate on it which has never been changed. The brick is the original as far as he knows. Water drains to the grate from the 26985 lot. The drain only takes extra water. The elevation there is approximately 944. The houses to the south, based on the grading plans he has looked, at are approximately 9 – 10 feet above that elevation (about 954). The overflow to Noble Road to the west is at a 946. The overflow on Edgewood Road is 948. His engineer and Engineer Hornby have worked to show that after the two new houses are built on the two lots created by the subdivision the area of drainage is going to remain the same; in fact, it would be able to take an additional inch of water during a storm. The 26985 lot is 88,202 square foot (or about 2.2 acre) lot and was recently subdivided. The house on the westerly new lot will be a rambler look-out style. The house on the east would be a two story look-out style. Both would be custom homes. The builder of the the house on 27135 Edgewood Road will build the two custom homes. They each have wanted to build on the lots for over six years but that did not work out because of the poor housing market. The additional fill that would be brought to the site would be used where the house footprints will be. Wartman stated when his uncle lived on the 26985 property there was a house, garage and storage building on the site. Those were removed because they were in a state of disrepair. From an impervious surface perspective only one new house is being added. The clay drain pipe has been working in excess of 80 years and it will continue to drain some of the water. That storm pipe does come out across the Scheurer’s driveway. It was there when previous owners lived there during the 1950s. He stated the clay drain pipe is not going to be expanded. It would be on the northwest corner of the easterly lot. There is enough drop in elevation there. The pipe would be extended toward the rear of the house; to the south. It would do the same thing as it has done for more than 80 years. No more water would be added to that drain. There is no other hard surface being added. The fill that would be brought to the site would not increase anything from a drainage pattern. Water does not overflow the road toward the Scheurer’s property because the elevation of Edgewood Road there is about 950/951. The low point is near the northwesterly corner of the lot. There is a swale between the new construction built a couple of years ago and the old Steben’s home which has been remodeled. The swale takes the water down to the lake. Water that comes to Edgewood Road at 948 drains to the swale then in to the lake. Any water that goes westerly across the Bell’s lot drains into the lower area on that lot and it overflows at 946. Wartman stated he is trying to be a good neighbor. He commented the home values would be in excess of $1 million. He noted his company does quality work; it developed Boulder Bridge Farms. He no longer builds homes. He noted he met with the property owners to the south. CITY OF SHOREWOOD PLANNING COMMISSION MEETING June 7, 2016 Page 5 of 16 Mr. Wartman offered to entertain questions. Commissioner Maddy stated if the 948 elevation does get reached because of significant rainfall that would result in 2 – 4 feet of water column going into the private clay pipe. Mr. Wartman stated that overflow at that point would be going in both directions and noted if that happened today the same thing would happen. Maddy stated he agrees with what has been presented. But, the problem that is of concern is an existing problem. Mr. Wartman stated there is no existing problem. The clay drain pipe has been there for more than 80 years and there has been a house on the Scheurer’s property for possibly just as long. He noted that the water in the catch basin will not be increased at all. Chair Davis stated that theoretically the water should be decreased because it is going back into the retention area. If the grading plan is correct and the contours work the way they should almost all of the water should flow to the back. Mr. Wartman noted his 26985 property has been taking on water for years. He stated it is the last site to be redeveloped. He does not think he and the builder should be penalized for that. They are meeting all of the specifications the City Engineer has requested. Engineer Hornby stated from an engineering perspective the developer cannot change the drainage pattern and what is being proposed will not. All of the water from Edgewood Road and from the lots flow to the back as it does today. He noted Mr. Wartman has explained the overflow correctly. He stated the overflow is to the north; not to the south. It goes through the property where the house built two years is. Because the storm drain is there today they are allowed to maintain that on the site from an engineering perspective. Ms. Scheurer explained the drainage has not historically flowed over their property. It was a new development because of their retaining wall going into that clay pipe. It is now an open pipe that faces toward their home. It is only separated from their home by a cement pad. Therefore, any water flowing out of that pipe flows towards their house. The pipe is about 2.5 feet above the cement pad. The one time that water flowed out in a torrent it dropped down like a waterfall. The pipe had been buried in the ground previously. She assumed it had been connected to something. There must be another pipe somewhere on their property. She knows there is some type of a culvert to the lake. She does not know if that was originally connected. When they had the retaining wall constructed it interrupted that pipe. She is concerned about the integrity of their home because when water comes out of the pipe it is shunted at their home. She noted they got a permit to construct the retaining wall. The City did not have any problem with their plan. They did not know the pipe was there and they do not know if the City knew it was there. She asked if there could be a dyke on the easterly Wartman lot to mitigate some of the water that would come from that area which is supposed to be absorbing the water. If it is not it would be coming into her yard, flowing across her yard, and then into the lake. That would be unfiltered water. She stated she agrees with what Mr. Wartman stated. It seems that properties contiguous to his lots drain onto his lot. When they looked at the manhole it was in the northeast corner of the easterly new lot. It was not far from Edgewood Road. Ms. Scheurer asked the City and Mr. Wartman to reconsider the drainage plan. She stated because of the amount of fill proposed for the new lots she assumes they could protect her property somewhat if potentially all of the properties are going to drain across her yard. CITY OF SHOREWOOD PLANNING COMMISSION MEETING June 7, 2016 Page 6 of 16 Commissioner Maddy asked Ms. Scheurer how long they have lived in their home. Ms. Scheurer responded about 30 years. Maddy then asked how long she has seen a drainage problem. Ms. Scheurer stated they have never had any issues. She explained their home has a basement. She remembered one year the lake level was so high they ended up with a little water in their basement. Their home is about 4.5 above the lake level. A basement is probably not a good idea for a house that is fairly low to the lake. She expressed concern about the structural integrity of her house and the possibility of the concrete cracking because of an open drain pipe facing her house. Maddy asked if water pools on Mr. Wartman’s property. Ms. Scheurer stated a few times she has seen standing water. A few times she saw water collect behind Mr. Wartman’s uncle’s house if there was a lot of spring thaw or a lot of rain. They never knew how the uncle drained the property. The water just disappeared in a day or so and it did not come across their yard. She commented it looked like swamp vegetation where water drains to on Mr. Wartman’s property but they never went back there to look at the area. Ms. Scheurer again expressed hope that Mr. Wartman would protect their property from unintended consequences from raising the two lots where the two houses would be built. Building the houses will result in there being a smaller area for water to drain into. Engineer Hornby explained the City requires the developer to mitigate the amount of volume that would be increased by the fill brought on to the site. That is what the developer has proposed. That is what the revised plan Director Nielsen provided the Commission this evening shows. If there is a drain in place it can still go there. The property owner to the south did not modify the pipe to the north. It sounds like the Scheurers did when they had the retaining wall constructed. The pipe was cut off and it is now draining on to their property. He does not know how long it has been exposed there. Hornby then explained the developer has proposed to mitigate the existing volume of water that would be held on the site in the new design and they have added storage to compensate for the impervious surface which has a maximum amount of 25 percent. The City required an additional 25 percent of storage. Even though the developer is going to build the lots up for the building pads and even if the water drains towards Edgewood Road the water would flow down the common property line between the two new lots and on to the back. Chair Davis stated the plan indicates there is a swale down the middle. Hornby explained the swale extends from the low point, which would be the emergency overflow to the north if it gets that high, and captures the water from the road and sends it to the back. Hornby noted there were a number of very heavy rainfall events in 2014. Water came out of many areas that it normally does not come out of all around the City mainly because of the terrain. That may be why that was the only time the Scheurers saw water come out of the drain. He assumes it was in June 2014. Mr. Wartman stated he thought Engineer Hornby addressed some of the things he was going to address. He clarified there is no swamp on the 26985 property. There is a low natural area somewhat to the southwest. There is pampas grass up front; it is not cattails. His father and uncle planted the pampas grass. Unfortunately, that would be covered because that is where the driveway would go. Mr. Wartman explained he understands that Ms. Scheurer and her husband have lived there for 30 years. He knows where the storm drain comes out in their retaining wall and empties out onto their driveway. It does exit to the lake to the east of their house. Before they cutout their driveway the pipe was buried there. He used to maintain the previous owner’s yard when he was a teenager. He knew there was a low spot down by the lake and there was always drainage. He also knew his uncle had a storm drain in his yard. He thought that in the spring the Scheurers would likely find the drain pipe frozen; there would not be excessive water in the spring time. There is some percolation that happens. He reiterated he and the CITY OF SHOREWOOD PLANNING COMMISSION MEETING June 7, 2016 Page 7 of 16 developer are trying to be good neighbors by not changing the drainage pattern. What currently happens is going to continue on. There will end up being two beautiful houses on the two new lots which require fill being brought on to the lots. Chair Davis closed the Public Testimony portion of the Public Hearing at 7:42 P.M. Commissioner Bean asked what would happen if the drain was plugged up so it basically ended on the 26985 property. Engineer Hornby stated it would likely overflow the roadway at the newer house that was built just east of Noble Road on the north side. Hornby explained he thought there is about three feet difference between the inlet to the pipe and the roadway overflow point. Bean stated if the private clay pipe were severed he asked what the water lift would have to be before it would flood across the street. Hornby stated there would be just under four feet of storage. Bean asked how much rain would be required to get four feet of lift. Hornby stated a hydraulic model would have to be run for that. Bean stated he assumes it would take a lot. Hornby concurred. Hornby stated if the pipe were plugged it could adversely affect the two new properties. He then stated if the developer wanted to cut the pipe off he could do that. The developer’s engineer would have to provide a hydraulic model to show that it would not adversely affect his properties or other properties. Chair Davis asked Mr. Wartman if he would want to do that. Mr. Wartman reiterated the clay pipe has been in place for more than 80 years. He stated Ms. Scheurer has lived there for about 30 years and the conditions are not going to change. He noted there has not been a problem for all of those years and stated he does not want to do something that would affect his properties or other properties. Commissioner Maddy noted he thought the engineers have done a great job showing that there would not be any change in the drainage pattern. Therefore, he does not think there is a reason to recommend denial of the C.U.P. He expressed concern about the condition of the pipe in Ms. Scheurer’s yard if there were to be a significant rain event. He recommended the Scheurers hire a professional to figure out a way to reconnect the pipe or find a way to shield their property in the event there were two or four feet of water on top of the drain on the Wartman property. He noted it is a private property issue. Commissioner Riedel noted he agreed with Commissioner Maddy that the argument has been made that the drainage pattern would not be changed and therefore there is no reason to recommend denial of the C.U.P. He stated stormwater running into lakes is a negative because of the health of the lake. He thought the number one priority is to reduce stormwater directly running into lakes. If a change could be made to capture and filter the water before it flows into the lake that would be better for the health of the lake. For this particular drainage pipe it depends if it is intended for unusual rainfall like that in 2014 or routine rainfall. Engineer Hornby clarified the existing clay pipe is for an overflow when the water gets up to a certain level. He explained that after looking at the site and at aerial photos and considering the fact that there is no indication of wetland on the site it appears that the water infiltrates in to a sand layer. It is very healthy for a lake to have the water infiltrate. When the developer builds the two new houses he would have to apply for an erosion control permit from the Minnehaha Creek Watershed District (MCWD). The MCWD would review the drainage pattern as well. Maddy moved, Riedel seconded, recommending approval of a conditional use permit for removal of over 400 cubic yards of soil and depositing over 100 cubic yards of fill for Thomas Wartman for the properties located at 27135 and 26985 Edgewood Road. Motion passed 4/0. Director Nielsen noted Council will consider this item during its June 23 meeting. Chair Davis closed the Public Hearing at 7:47 P.M. CITY OF SHOREWOOD PLANNING COMMISSION MEETING June 7, 2016 Page 8 of 16 2. PUBLIC HEARING – APPEAL OF ADMINISTRATIVE DETERMINATION OF NUMBER OF BOATS ALLOWED AT NONCONFORMING DOCK (continued from May 3, 2016) Applicant: Radisson Road Easement Holders Location: 5540 Shore Road (Lot 11) Chair Davis opened the Public Hearing 7:47 P.M., noting the hearing was continued from May 3, 2016. She stated during this Public Hearing the Planning Commission is going to continue its consideration of an appeal of administrative determination of number of boats allowed at a nonconforming dock at 5540 Shore Road (Lot 11). She stated because this is a continuation the Commission will not take public testimony unless someone has new information to present. Chair Davis opened the Public Testimony portion of the Public Hearing at 7:48 P.M. Paula Callies, 20465 Radisson Road, expressed concern about the letter from Shorewood Attorney Keane (a copy of the letter was included in the meeting packet). She stated Keane’s letter references correspondence submitted to the DNR (Minnesota Department of Natural Resources). That was not included with the copy of the letter she received or in the meeting packet. There was no way to tell from Keane’s letter what was being referred to and what was actually stated. Director Nielsen did send her that correspondence on June 6, 2016. That correspondence was referring to shoreland regulations and that is a different section of the City Code. That is different than the issue being considered by the Planning Commission this evening. She stated that many of the people interested in this situation have spent a lot of time preparing, gathering and submitting materials to the City and ultimately to the Commissioners. She expressed disappointment with the brevity of Attorney Keane’s memorandum. The letter basically recites what the DNR letter states. The letter does not do any analysis of it and from her perspective it is incorrect in that regard. She explained the issue before the Planning Commission is a legal issue. In a way it is not something the Commission should be weighing in on with regard to what happened years ago. The matter went through the Minnesota Court of Appeals in terms of determining the easement and the scope of that easement. The matter was sent to the Minnesota Supreme Court which denied review. That means the Court of Appeals decision stands. She stated some of the easement owners are asking that the Planning Commission recommend to the City Council that the four boats be allowed at Lot 11. There has not been a conclusion that the DNR has ever approved Shorewood’s regulations regarding the docks and boats on Christmas Lake. Ms. Callies thanked the Planning Commission for its time. Chair Davis closed the Public Testimony portion of the Public Hearing at 7:51 P.M. Commissioner Bean stated it was his recollection that the issue at the end of the May 3 hearing was about jurisdiction. Albeit Attorney Keane’s letter was brief he understands it to say that Shorewood submitted its shoreline and shoreland regulations to the DNR for its review and acceptance. He asked if it is the City’s position that the DNR’s acceptance gives Shorewood the ordinance authority. Director Nielsen responded yes. CITY OF SHOREWOOD PLANNING COMMISSION MEETING June 7, 2016 Page 9 of 16 Director Nielsen noted he had spoken with Attorney Keane about this. He explained the City’s shoreland regulations are just one section of the City Zoning Ordinance; the regulations are not a standalone ordinance. There are definitions in the front of the Zoning Ordinance. The shoreland district itself is an overlay district. There is a base zoning map and Lot 11 is zoned R-1C. There is a shoreland overlay for it. The requirements for the shoreland district are superimposed over the R-1C district. If there is a conflict between those two parts of the Ordinance the more restrictive applies. The uses are addressed in the districts; in this case the R-1C. Every district has a list of allowable uses. There are permitted uses and they do not require any special scrutiny. An example is a single-family home in a single-family zoning district. Accessory uses (e.g.; a garage) are listed. Docks are accessory uses in the R-1C/S zoning district by virtue of Code Section 1201.03 Subd. 14. It specifically states “docks as per regulated in Subd. 14”. The DNR reviewed that whole ordinance and approved it initially in the mid-1980s and again in the 1990s when some of the ordinances were changed. The DNR saw what the City’s Code included in its entirety. He noted that is the thread Keane’s opinion is based on. Commissioner Bean stated based on that thread and by virtue of the DNR’s approval the Shorewood Code prevails. The Shorewood Code adopted the language of the Lake Minnetonka Conservation District (LMCD) in its ordinance. Director Nielsen concurred. Bean stated Shorewood adopted the LMCD’s code; it is not asking the LMCD to weigh in on this issue. Shorewood adopted the code to save typing it into the Shorewood Code. Nielsen concurred. Bean stated based on what he has heard Shorewood has established a shoreline ordinance that defines the parameters with one of the parameters being one boat per 50 feet. There is also a nonconforming use because there is no dwelling on Lot 11. Any change that increases the use would expand the nonconformity of the dock usage. Based on that he does not think there is a choice to allow more than two boats at the dock. Commissioner Riedel concurred. Commissioner Riedel stated that two boats are permitted for the length of shoreline easement on the front of Lot 11. The Zoning Code would allow for up to four boats if there was a dwelling on the Lot provided that all four boats were owned by the residents living on the property. He noted from his vantage point it is a nonconforming use of the dock and therefore the regulations should apply. He agreed there is no choice but to limit the number of boats at the dock to two. Commissioner Maddy and Chair Davis concurred. Maddy moved, Davis seconded, recommending denial of the appeal of administrative determination of number of boats allowed at a nonconforming dock at 5540 Shore Road (Lot 11). Motion passed 4/0. Director Nielsen noted that Council will consider this item during its June 27 meeting. Chair Davis continued the Public Hearing at 7:58 P.M. 3. PUBLIC HEARING – ZONING CODE TEXT AMENDMENT REGARDING ALTERNATIVE ENERGY REGULATION (continued from May 3, 2016) Chair Davis opened the Public Hearing 7:59 P.M., noting the hearing was continued from May 3, 2016. She stated during this Public Hearing the Planning Commission is going to continue an amendment to the Zoning Code regarding alternative energy regulation. Director Nielsen noted the amendment to the Zoning Code is essentially what the Planning Commission recommended approval of for the Minnetonka Country Club (MCC) planned unit development (PUD) project. He explained there was discussion about PUDs having language that does not prohibit the use of alternative energy. The proposed amendment deals primarily with solar energy. The City’s energy consultant had indicated that wind energy would be an issue for the City but it should be considered on a CITY OF SHOREWOOD PLANNING COMMISSION MEETING June 7, 2016 Page 10 of 16 residence by residence basis. The amendment stipulates that for any development there should not be a protective covenant that says solar energy facilities would not be allowed. The purpose of the proposed amendment is to come up with alternatives to traditional electrical and gas utilities that power communities. There are several things the proposed Code amendment would allow that are currently not allowed. He noted the amendment includes provisions from the model provided by the energy consultant as well as from ordnances from other municipalities. He stated the amendment includes a list of nine standards for solar energy systems. He reviewed what the standards are. 1. Height – The maximum height requirements for roof mounted systems are the same as the applicable zoning district. An exception is made for ground-mounted solar energy systems which shall not exceed 20 feet in height. Ordinarily accessory uses are limited to 15 feet in height. 2. Location – In residential zoning districts, ground-mounted solar energy systems are limited to the rear yard. In non-residential zoning districts, ground-mounted solar energy systems may be permitted in the front yard of any lot or the side yards on corner lots, subject to applicable building setback requirements. 3. Setbacks – Ground-mounted solar energy systems, including any appurtenant equipment, shall be set back a minimum of 20 feet from all property lines. Roof-mounted systems shall comply with all building setbacks in the applicable zoning district and cannot not extend beyond the exterior perimeter of the building on which the system is mounted. 4. Roof mounting – Roof-mounted solar collectors shall be flush mounted on pitched roofs. Generally they will have a 4:12 pitch. Solar collectors may be bracket mounted on flat roofs. 5. Easements – Solar energy systems shall not encroach on public drainage and utility easements in roadways or trails. 6. Screening – Solar energy systems shall be screened from view to the extent possible without reducing their efficiency. Screening may include walls, fences or landscaping. 7. Maximum Area – In residential zoning districts, ground-mounted solar energy systems shall be limited to a maximum area of 120 square feet. In other zoning districts, ground-mounted solar energy systems shall be limited to a maximum area consistent with the accessory structure limitations but no more than 25 percent of the rear yard, whichever is less. 8. Aesthetics – Reflection angles from collector surfaces shall be oriented away from neighboring windows. Where necessary, screening may be required to address glare. 9. Feeder lines – The electrical collection system shall be placed underground within the interior of each parcel. He noted that solar easements were purposely not included in the amendment because for residential properties it would become a choice between one property owner being able to have trees or not and another property owner being able to have a solar system. CITY OF SHOREWOOD PLANNING COMMISSION MEETING June 7, 2016 Page 11 of 16 He reviewed the safety elements in the amendment. a. Safety Standards – Electrical 1. All utilities shall be installed underground. 2. An exterior utility disconnect switch shall be installed at the electric meter serving the property. 3. Solar energy systems shall be grounded to protect against natural lightning strikes in conformance with the national electrical code as adopted by the City. 4. No solar energy system shall be interconnected with a local electrical utility company until the utility company has reviewed and commented upon it. The interconnection of the solar energy system with the utility company shall adhere to the national electrical code as adopted by the City. b. Certification – The solar energy system shall be certified by Underwriters Laboratories, Inc., and comply with the requirements of the International Building Code. c. Abandonment – Any solar energy system which is inoperable for 12 successive months shall be deemed to be abandoned and shall be deemed a public nuisance. The owner shall remove the abandoned system at their expense after obtaining a demolition permit. He noted that building-integrated solar energy systems shall require a building permit prior to installation. Ground-mounted solar energy systems shall require a zoning permit, pursuant to Section 1201.07 of this Code prior to installation. He stated space has been reserved in ordinance amendment for future use for wind energy systems and ground source heat pump systems. In response to a question from Chair Davis, Director Nielsen explained if a solar system is going to be interconnected to a household electrical system it needs to be approved by a power company. Commissioner Maddy stated that part of the interconnection agreement on solar generators requires a user to go through Xcel Energy. It is a long process. Xcel goes through all of the UL listings. Sometimes Xcel requires a disconnect on the side of the house. If the solar generator does not find a certain UL listing the generator stops generating power. The generator could not be used during a power outage. Xcel would buy the power back. Stopping the generation of power is for the safety of the line people. Council Liaison Sundberg stated utility companies have a lot of incentive now to encourage solar use. They have state mandates they need to reach for renewable energy use among their clients. They are very accustomed to working with small to large solar installations. Chair Davis asked if there are any residents in Shorewood using solar energy. Council Liaison Sundberg noted Mayor Zerby is. Director Nielsen stated he is aware of some small panels. Commissioner Maddy stated there are a couple of ground-mounts on a property in a cul-de-sac near Crescent Beach and noted they would be nonconforming if this ordinance amendment is approved. Council Liaison Sundberg stated she thought there is a lot more interest in solar energy now than there had been in the past. She guessed that the economics for Mayor Zerby’s system are not very attractive. She stated in Shorewood there are limitations because the City is densely populated and there are a lot of CITY OF SHOREWOOD PLANNING COMMISSION MEETING June 7, 2016 Page 12 of 16 trees which are valued. She commented that she does not think any solar advocates would encourage cutting down trees so solar panels could be put up. She stated from her vantage point she does not encourage the City take on wind energy. Wind energy is technically viable but it is very controversial in a densely populated area at this time. Commissioner Bean asked if those residents who have solar energy systems that would not comply with the proposed ordinance amendment would be grandfathered in and allowed as an exception. Director Nielsen stated they would have to be and clarified if the systems were noncompliant with safety standards they would have to be addressed. He noted the Ordinance contains language about nonconformity and anything that predates the approval of the amendment would be grandfathered in. Bean then stated if, for example, he had a solar panel and the canopy of his neighbor’s oak tree encroaches into his airspace he asked if he would be allowed to trim that tree. Director Nielsen stated he would be allowed to do that and he has been told that if a tree extends over a property line the canopy can be cut off but a person has to be very certain about where the property line is. He noted that he is not an attorney. Commissioner Maddy stated in his former career he read a legal opinion that stated a person cannot intentionally kill a tree. Chair Davis, as a master gardener, stated gardeners used to think that once two-thirds of the canopy is removed the tree should be taken down. Bean went on to state he has concern that there would be some disgruntled neighbors taking out vengeance against each other because one property owner owns the air space a neighbor’s tree is occupying. Chair Davis concurred. Bean stated he would like there to be something saying that existing trees are entitled to their own airspace. Director Nielsen stated that would be a “can of worms”. Director Nielsen noted that people frequently underestimate how big the tree will grow. They may plant it five feet from the property line and eventually it grows to the point that its canopy is 20 feet over the property line. Chair Davis stated in Shorewood Oaks the houses are very close to the trees. Commissioner Bean stated there is a similar situation in the City of Greenwood along St. Albans Bay Road. Davis stated that hopefully people who embrace solar energy are also tree huggers. Commissioner Maddy asked if the Planning Commission is supposed to move the ordinance amendment forward to Council for its consideration. Director Nielsen stated that is up to the Commission. Nielsen explained the amendment in front of the Commission has been published in the City’s official newspaper. Seeing no one present to comment on the case, Chair Davis opened and closed the Public Testimony portion of the Public Hearing at 8:20 P.M. Commissioner Riedel stated he thought the solar energy systems aesthetics provision was quite subjective. The reflection angles can be adjusted for a ground-mounted system. He questioned how that would be done for a roof-mounted system. He thought it should be less subjective but was unsure how to make it so. Director Nielsen stated screening would be irrelevant if it was roof-mounted. Commissioner Bean suggested the provision should maybe only apply to ground-mounted systems. Nielsen stated he thought the roof-mounted systems are angled toward the sky. Commissioner Maddy stated he supports removing that for a roof-mounted system. There was consensus to change the aesthetics standard to make the reflection angles apply only to ground- mounted systems. CITY OF SHOREWOOD PLANNING COMMISSION MEETING June 7, 2016 Page 13 of 16 Commissioner Maddy stated the definition for a flush-mounted solar energy system includes “The pitch of the solar collector may exceed the pitch of the roof up to 5% but shall not be higher than 10 inches above the pitch.” He asked where the 10 inches above the pitched roof restriction came from. Director Nielsen stated he thought it was intended to be more of a limitation to ensure they are not, for example, four feet above the roof. Chair Davis commented there is a house that has been under construction for a very long time that has a roof pitch so steep she does not think solar panels could be put on it. Nielsen stated a roof-mounted system would not work in that instance. Maddy then stated the maximum area standard for ground mounted systems is 120 square feet. He asked if other cities have the same standard. Director Nielsen stated that size is consistent with the size of a normal shed. Chair Davis stated a 10 x 12 foot panel is a big panel. Maddy noted he thought the maximum size is reasonable. Maddy asked if it would be prudent to restrict wind systems before someone wants to put one up. Director Nielsen stated that is typically what has been done in the ordinances he has looked at. They may make some exceptions for vertical turbines. Maddy reiterated his question. Nielsen suggested addressing wind systems separately. Council Liaison Sundberg concurred and noted that technology is rapidly changing. Commissioner Bean asked if there is anything in the ordinance amendment or Ordinance in general that would prohibit wind systems today. Nielsen noted the height requirements would and explained the City’s energy consultant had indicated that it would be difficult to get the systems up high enough in the City. Chair Davis stated someone may want a small system as a novelty. Sundberg stated the wind map for the area the consultant provided showed there was little area, other than the middle of the lake, where wind systems would work. Maddy moved, Davis seconded, recommending approval of the ordinance amendment regarding alternative energy systems subject to changing in aesthetics “Reflections angles from collector surfaces…” to “Reflections angles from ground-mounted collector surfaces…” and in screening changing “Solar energy systems shall be screened …” to “Ground-mounted solar energy systems shall be screened …”. Motion passed 4/0. Commissioner Maddy noted he appreciated the work that was done on this. Director Nielsen noted Council had indicated that this was a high priority. Council Liaison Sundberg thanked people for getting it done and the Planning Commission for supporting it. Nielsen commented that it is finally done albeit it took a long time to do so. Council Liaison Sundberg stated Shorewood is already starting to be recognized as an environmental leader. She noted the results of the last resident survey indicated that 79 percent of the respondents supported clean energy. Commissioner Riedel brought up the idea of municipal tax rebates for residents who install alternative energy systems. Director Nielsen noted there are incentives from other agencies. Commissioner Bean asked if geothermal energy is an option. Nielsen responded yes and noted it is quite expensive. He stated the other alternative energy types will be addressed in the future. Nielsen explained someone has geothermal in a pond and recycles the water. Wells can also be used. Chair Davis noted that when the new visitor center was built at the Minnesota Landscape Arboretum a geothermal system was put in. Chair Davis closed the Public Hearing at 8:33 P.M. CITY OF SHOREWOOD PLANNING COMMISSION MEETING June 7, 2016 Page 14 of 16 4. PUBLIC HEARING – REZONE PROPERTY FROM R-2A, SINGLE AND TWO- FAMILY RESIDENTIAL TO C-1, GENERAL COMMERCIAL. Applicant: John Benjamin Location: 24250 Smithtown Road This item was rescheduled to the July 2016 meeting. 5. MINNETONKA COUNTRY CLUB FINAL PLAN – REVIEW DEVELOPMENT AGREEMENT Director Nielsen stated the Development Agreement for Mattamy Homes’ Minnetonka Country Club (MCC) planned unit development (PUD) final plan was given to the Planning Commission for informational purposes per the Commission’s request. He noted the Agreement has not been approved by Council yet. Council will consider it during its June 13 meeting. The Agreement lays out all of the rules for the development of the MCC property. He explained the base district for the PUD project is the R-1C. The Council meeting packet item for the final plan and final plat will include a setback map for the project showing the setbacks for each lot. Chair Davis asked if Mattamy is still trying to convey Outlots I, J, K and L. Director Nielsen responded he thought those get conveyed to the owners of the adjoining properties on the southeast corner of the site. Chair Davis explained that Item 3.B states “Maintenance and necessary replacement of boulevard trees within the PUD shall be the responsibility of the HOA.” She thought the trees were going to be kept out of the boulevards. Director Nielsen clarified the City initially wanted the trees to be planted in the yards so the City would not be responsible for them. Mattamy wanted the boulevard affect. The solution to that is for the MCC Homeowners Association to be responsible for them. He noted the landscape plan reflects a variety of trees. Director Nielsen noted the total amount of park dedication fees received from this project combined with what the Park Fund has in it should come close to paying for the improvements to Badger Park. 6. DISCUSS SCHEDULING A SPECIAL MEETING ON JUNE 21, 2016, REGARDING OPPIDAN INVESTMENT COMPANY TAX INCREMENT FINANCING Director Nielsen explained that Oppidan Investment Company needs Tax Increment Financing (TIF) to help fund its Shorewood Senior Living project in Shorewood. Oppidan found out there are extremely poor soils on the site. The TIF would help pay for the cost of soil remediation. When Oppidan first started discussion of this project with representatives from Shorewood and the City of Excelsior Oppidan was going to be able to connect to the Excelsior water system. Excelsior was going to extend its watermain. Excelsior later decided that its water system did not have the capacity to serve to the Oppidan project. Therefore, the Shorewood watermain will be extended to the site. The TIF will pay for part of the cost to extend Shorewood watermain to the site, Oppidan will pay part of the cost and part of the cost will be funded out of the Water Fund. The extension will allow Shorewood residents currently served by the Excelsior system to then be served by the Shorewood system. The extension to the other side of Highway 7 will eventually allow for the extension of watermain to some properties on that side of Highway 7. He noted the TIF plan has to be reviewed by the Planning Commission and it needs to make a recommendation on the plan. To maintain the timeline of the TIF there needs to be a special Commission meeting on July 21. CITY OF SHOREWOOD PLANNING COMMISSION MEETING June 7, 2016 Page 15 of 16 He stated there maybe another item on that special meeting agenda. The State legislature has discussed a law that would ultimately allow people to bring in temporary residents as caretakers. It would basically allow people to bring a small trailer to the site and live in it. There is a provision that would allow cities to opt out of that. He noted that he thought the law is a bad idea. He stated the City has tried to accommodate that with accessory apartments. He then stated he thought the special meeting should be short. 7. DISCUSS JULY MEETING DATE Director Nielsen stated that for the last few years the Planning Commission has had a policy to not hold its regular meeting on the first Tuesday of the month if that Tuesday comes after a holiday. Therefore, he suggested the July meeting be held on July 19. Doing that would not slow down processing any applications. He noted the items considered that evening would considered by Council during its July 25 meeting. The property rezoning for John Benjamin may be on the agenda for that meeting. Peter Lehman has asked for a specific vote on rezoning his property near Christmas Lake so that would be on that agenda. There is a request for a 6-foot-high fence for a property next to Highway 7. To place it in within the required setback to the Highway requires a conditional use permit. There will be a variance request for a shed. Commissioner Maddy asked when food trucks would be discussed. Director Nielsen stated not for a while. Director Nielsen noted that from his perspective short-term rental is a higher priority for discussion because there are two properties where that is a problem with one of them being a significant problem. The City’s rental housing code needs to be strengthened. He stated the South Lake Minnetonka Police Department (SLMPD) has been to the very problematic site on a couple of occasions because of noise complaints. The SLMPD has offered to report on the activity at the property such as the number of cars. He expressed his appreciation to the SLMPD with regard to that matter. He thought this issue would be on the August meeting agenda. Chair Davis stated the City of Duluth addressed that by requiring a rental to be a minimum of seven days. It also required a $350 license and inspection. They sold their house there instead of dealing with that. She noted that on the VRBO (vacation rental by owner) website she found three properties in the City of Excelsior and one in the City of Tonka Bay. Director Nielsen noted the meeting agenda for the July 19 meeting should be fairly full. 8. MATTERS FROM THE FLOOR There were no matters from the floor presented this evening. 9. OLD BUSINESS / NEW BUSINESS None. 10. DRAFT NEXT MEETING AGENDA This was discussed under Item 6 on the agenda. CITY OF SHOREWOOD PLANNING COMMISSION MEETING June 7, 2016 Page 16 of 16 11. REPORTS • Liaison to Council Director Nielsen reported on the May 31, 2015, work session during which a presentation was made about a person’s grand vision for the area including Badger Park, City Hall, the Southshore Center and commercial strip on the southeast corner of the Smithtown Crossing Development Area (as detailed in the minutes for that meeting). There was ensuing discussion about the vision. • SLUC Director Nielsen stated he still intends to purchase a DVD recording of the April 27, 2018, Sensible Land Use Coalition session which was about park dedication fees. • Other Chair Davis suggested the Planning Commission discusses the liaisons to Council for July through December. Council Liaisons were selected as follows: July 2016 Commissioner Riedel August 2016 Chair Davis September 2016 Commissioner Johnson October 2016 Commissioner Maddy November 2016 Commissioner Bean December 2016 Commissioner Riedel 12. ADJOURNMENT Davis moved, Riedel seconded, adjourning the Planning Commission Meeting of June 7, 2016, at 9:10 P.M. Motion passed 4/0. RESPECTFULLY SUBMITTED, Christine Freeman, Recorder