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033197 CC Reg AgP . ~t 2. -- , 3. ~ 4. t. ( .j; 5. i /<. l! , 6. j ~ . : 7. !-t . . . ~. ~ CITY OF SHOREWOOD CITY COUNCIL SPECIAL MEETING MONDAY, MARCH 31, ..1997 5755 COUNTRY CLUB ROAD COUNCIL CHAMBERS . 7:30 P.M. AGENDA 1 . CONVENE CITY COUNCIL SPECIAL MEETING A. Roll Call Mayor Dahlberg_ Stover _ McCarty _ O'Neill_ Garfunkel_ B. Review Agenda mSTORICAL PERSPECTIVE OF CABALKA REQUEST AND PROCEDURAL REVIEW REVIEW OF ISSUES AND FACTUAL BACKGROUND PRESENTATIONS FROM MEMBERS OF THE PUBLIC DISCUSSION OF BURDEN OF. PROOF COUNCIL DISCUSSION ON HOW TO PROCEED ADJOURN CITY OF SHOREWOOD MAYOR Tom Dahlberg COUNCIL Kristi Stover Jennifer McCarty Jerry O'Neill John Garfunkel 5755 COUNTRY CLUB. ROAD · SHOREWOOD. MINNESOTA 55331-8927. (612) 474-3236 FAX (612) 474-0128' www.state.netlshorewood . cityhall@shorewood.state.net March 31, 1997 . To: From: RE: Mayor Dahlberg and City Councilmembers James C. Hurm, City Administrator Cabalka Information MEMORANDUM Please find enclosed copies of: Planning Director Memo dated August 29, 1996 Planning Commission minutes of September 3, 1996 Planning Director Memo dated September 26, 1996 Planning Commission minutes of October 1, 1996 City Council minutes of October 28, 1996 Planning Director Memo dated November 20, 1996 City Council minutes of November 25, 1996 City Council minutes of December 16,1996 Cabalka Attorney (Kelly) Letter dated January 3, 1997 City Council minutes of January 13, 1997 . These documents will provide the background information on the Cabalka case for your review. Please also fmd enclosed an e-mail message from Kuester dated Wednesday, March 26, 1997. A Residential Community on Lake Minnetonka's South Shore {; :MEMORANDUM . TO: FROM: DATE: RE: FILE NO. BACKGROUND CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD. SHOREWOOD, MINNESOTA 55331-8927 · (612) 474-3236 Planning Commission, Mayor and City Council Brad Nielsen 29 August 1996 Cabalka, Scott - Appeal to Zoning Violation Notice 405(96.18) Mr. Scott Cabalka owns a small, unbuildable parcel of land abutting Christmas Lake (see Site Location map - Exhibit A, attached); In June of this year, based upon neighborhood complaints, the property was inspected and found to have a number of dock structures where no principle dwelling exists on the lot. Upon review of the property records it was determined that the docks in question may not have existed as of 1981. A zoning violation letter was sent to Mr: Cabalka (see Exhibit B). Mr. Cabalka's attorney responded in a letter (Exhibit C), dated 24 June 1996, stating that a dock existed on the property since approximately 1955, but provided no evidence to that effect. We then sent his attorney the evidence upon which we based our conclusion and an application form for an official appeal (see Exhibit D). This appeal has been scheduled for a public hearing on 3 September 1996. Mr. Cabalka has submitted the information contained in Attachment 1 in support of his appeal. ANAL YSISIRECOMMENDATION . There are three issues to be resolved in this case: 1. Has a dock or docks been continuously been maintained since at least 21 January 1965? This is the date upon which Shorewood's dock regulations were first adopted. It should be noted that the Code states that nonconforming structures which are discontinued for 90 days can not be reestablished. Given the seasonal nature of docks we have determined that docks must be put out at least each year to maintain any "grandfather rights". 2 . If a dock has existed since 1965, has it been increased in size or number? It should be noted that some fleXibility has historically been allowed for dock length depending on lake levels. During the mid 80' s for example, many docks in the community were extended to reach deep enough water to float boats. A Residential Community on Lake Minnetonka's South Shore .. Memo re: Cabalka Zoning Appeal 29 August 1996 3. Should outdoor storage of boats be allowed on the property? This is an accessory use which is not allowed without a principle dwelling. .. The process for making an appeal is found in Section 1201.05 of the Shorewood Zoning Code. Although the procedure for an appeal is the same as a variance request, it differs from a variance in that the appellant does not have to demonstrate "undue hardship". He does have the burden of proof, however, to show that the administrative order (in this case the zoning violation notice) or zoning interpretation is incorrect. None of the evidence provided is conclusive (e.g. there are no aerial photographs showing the old docks or affIdavits from people familiar with the property). A receipt from Mark Hurd Aerial Photography is included in the appellant's material, but copies of the aerials have not been provided. It is possible that resident testimony at the public hearing may shed additional light on this matter. If Mr. Cabalka has additional evidence to share, it is recommended that the matter be tabled pending adequate time to review and report on it. Mr. Cabalka is on notice by .. copy of this memorandum that the 60-day time limit for reviewing zoning requests will be.... extended for this purpose. . If no better evidence can be provided, it is recommended that the docks be removed per the original zoning violation letter. cc: Jim Hurm Tim Keane Scott Cabalka . -2- i-i--------------------------__ : r'21 [ I I 1 I '4).-:':! --- .,,"", (Z7) .c. .. . . C:- - -- - - T cl\~~ -G\~ ---. 5"bj"~ ~'~4v rO ''"''1'" 't' en So ~ ~ ~ -a ~ ~ . ~ ~~~ I . 1 I I I ........j I ,*----------------------------- ._----, .... ~ I . I . ~-------------------_._-------- 1:11 --- ....-, . J.\.) 9l (Z) leG (4) .-:.j 1 . .. ... ..... , ~...'''' . j ..:... .~. .' ' .' . . I : 'eI . 1 .1 . "~u.".,' '. ,'J, (Z6) 161 14 (... -/ \, .... J-=....,' (6) DETAIL OF TRACT 0, R L S NO 471 SCALE. I" 'ZO :.........................-....11l7.................._...1._ , : i ! . 'i, " (24) !i \ " I :---------------~~----.--____1__ 164 (25) (29) ..., . (18J I ..., " : ..~ - ..~ l' ....._....: II ~"J . L- \1 ............. I' (7) 411 (;..J ;;' '64 47 ~ \ ~ . . 0. ~ '. /_ ~ \~,.;,.... · 17.', 'I . , ..~..... '. r- - -'- - -'.- - - '- - - -_ !..)_, '-~~ ~ DETAll OF SOUTH LINE OF . LOT 188, AUO SUBO NO 120 t:::::" DEsa THlS LINE SEE TORR. NO 304"STJ1 '- . . . . . r--~----------------f--------- . . : r- ,.,. : (16) : I i (17) ~. ,r-, \ . ........ Tn., ......... .. (~ -- - .., .. 17. eZl) ~.... ..--, I .\ , ~ ;\ I \ In . '. "'/~" '.....:) "!eli', c (6) ~ Exhibit A SITE LOCATION Cabalka appeal II RODS 37 "'l7 13. 'S F[C~[~1fV ~~LE ............. ~~ CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD. SHOREWOOD, MINNESOTA 55331.8927 · (612) 474.3236 20 June 1996 Mr. Scott Cabalka 5321 Golden Valley Road Golden Valley, MN 55422 Re: City Code Violation Dear Mr. CabaIka: . Due to recent inquiries and complaints, it has come to our attention that a dock has been constructed on property you own, in violation of Section 1201.03 Subd. 14 of the City Code (Regulations Applicable to Shoreline Property). A copy of the Code section is attached for your review. This is to advise you that the dock must be removed no later than 8 July 1996. The City of Shorewood does not issue permits for residential docks, however, it has adopted, by [~ reference, the Lake Minnetonka Conservation District regulations. The City Code also places certain other restrictions on docks and similar structures. Docks are considered to be accessory l, structures and, as such, are only allowed on properties where a principal use exists. In a 'it residential zoning district, the principal use of the property would be a residence or house. Every occupied lakeshore lot is allowed one (1) dock for the sole use of the property's occupants. Docks existing on.lakeshore land which is unbuildable due to its size, shape or other circumstances are nonconforming structures. These docks may be legal or illegal nonconforming structures depending on their "grandfathered" status which would relate to the age of their existence and . regulations existing at that time. Legal nonconforming structures may remain in their original size, shape and location, but are not allowed to be increased in size or use. Failure to comply with these regulations will result in the City taking whatever action may be necessary to correct the violations at the propertv owner's expense. Your property will be reinspected for compliance after 8 July 1996. If you wish to appeal this matter to the City Council, you must do so, in writing, before 8 July 1996. I will be out of the office until 1 July. If you have any questions relative to this matter please do not hesitate to call me after that at 474-3236. CITY OF SHOREWOOD ~~L~ Planning Director cc: Tim Keane Exhibit B ZONING VIOLATION LETTER Dated 20 June 1996 A Residential Communirv on LaKe MinnercnKa's S KELLY LAW OFFICES Established 1948 351 SECOND SiREET EXCELSIOR, MINNESOTA 55331 MARK W. KELLY WILLIAM F. KELLY (1922-1995) (612) 474-5977 FAX 474-9575 June 24, 1996 Mr. Bradley J. Nielsen Planning Director City of Shorewood ,5755 Country Club Road Shorewood, MN 55331 . RE: A1.~eged City Code Vio~at;ion Caba1Jca Cbrist:m.as Lake Road Property Dear Mr. Nielsen: I represent the Cabalka family. Your letter of June 20, 1996 demands that they remove their dock from their Christmas Lake lot. The letter also allows that the structure may, in fact, be a legal nonconforming use "grandfathered" under the city code. Please be advised that my client's dock predates the adoption of the ordinance section in question and has been maintained on the property since on or about 1955. As such, it is a legal nonconforming structure with which the city has no right to interfere. If however, the city insists on pressing this matter my clients will defend and in addition assert their constitutional rights. . It is our hope that on review your office will find that this matter does not merit further attention. If however, you can conclude that this should be pursued either by criminal prosecution or civil claim, be advised that this letter constitutes a notice of appeal to the city council of such action. Sincerely, ~',,/~~ W. Keely -7 MWK:el< cc: Cahalka Exhibit C APPELLANT'S ATTORNEY'S LETTER Dated 24 June 1996 PROPERTY FILE CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD · SHOREWOOD, MINNESOTA 55331-8927 . (612) 474-3236 12 July 1996 - l\1r. Mark Kelly Kelly Law Offices 351 Second Street Excelsior, .MN 55331 Re: Cabalka Zoning Violation Appeal Dear l\1r. Kelly: This is in response to your letter, dated 24 June 1996. Your letter indicates that the dock in question predates Shorewood's dock regulation, but provides no evidence to that effect. Our best evidence of the violation comes from the property f.tles for the Cabalka property, in which a memo from the Cabalkas in 1981 (Exhibit A, attached) discusses a proposed boat dock. This is also supported by a survey of the property (see Exhibit B, attached) which is of sufficient detail to show the dock on the Cabalka's homestead parcel, but not on the parcel shown as Part of Lot 186. Finally, there appear to be at least two complainants who would be willing to testify as to the previous status of the property relative to docks. . In reviewing this matter with the City Attorney, he suggests that I forward Section 1201.05 of the Zoning Code to you. along with an application form for a formal appeal of this office's interpretation of the Code. Your letter of 24 June 1996 does not constitute a written application for an appeal. The application form and the Code section are enclosed for your use. Your client must correct the violation or make application for an appeal by 18 July 1996. If you simply wish to have more time to provide evidence of your client's position, let me know prior to the 18th and we will schedule the request for the 22 July 1996 City Council meeting. If you have any questions relative to this matter, please do not hesitate to contact my office. Sincerely; . CITY OF SHO~OOD . ,&ad&.. l /}d~ .-/ Bradley J. ~ Planning DIrector cc: Jim Hurm Tim Keane Scott Cabalka Exhibit D RESPONSE LETTER TO MARK KELLY Dated 12 July 1996 A Residential Community on Lake Minnr; . . ~ - '-=i .- -...- - DATE: March 3, 1981 TO: Shorewood City Planning Commission FROM: James and Betty Caba1ka, Shorewood Residents 5885 Christmas Lake Road SUBJECT: Boundary Revision Option(s) What are the options for our family use of Cabalka property adjoining existing residential property Tract A, but described as "part of 186" outside of Tract A _survey1 See the attached diagrams. Proposed Option #1: (Se~ Diagr~m nAil) Move the boundary of separation to the south approximately 70 feet and thereby rpduce Tract A. A denial of this plan appears likelt since ~ proposed use by Cabalka famiJ~ includes buildin~ -a smal!coat dock on the site without an established resldence.-Chy ordinance .prohibits land use of this type in Snorewood. . Further denial appears likely since any home construction could violate city ordinances pertaining to "non buildable sites". Proposed Option #2: (Se~ Diagram liEn) Remove the separation boundary and expand Tract A to a larger property. . Consider Zlevly enlo~d single site an approvable buildable site for construction of a second, small residence on the enlarged Tract A. . ~~ ~ () 'IJ.L r:.Jf't,J:z~~ I -::2;S--//?-~~ -1,,-- 00/1 - (JO fl,/ .,. ,. ...~ s %. F-~.~t~~i ~ ~ ~ ~ ~~ ~YJ aJ~ .~ >-.. lc~ ~ J ~ -....;:: ~ 8: I! .- .::..- ,-' '..... ,,,,~.t '-' . ; , I "" J ~~. Q <:( o Q: ~ ,r. . t. . ....~ ". t;:) ---...,0_" 4... \/,11\ .... \ '\ \ ...4 \\ ... (;~\ ' /.~~~\,~~! ',. -..... \,<..""\ ~... ~ \ .~ \. t~, ~~ \--=- ",> '.----; '- \ Jr \.."'- .. ~ t "- i' ~- ~ ,...........,,-... ~ . ~~ ~ " ... Bt~-" ~'.... ....~, . '. . ..~.\ '-, .,~.... ' . -.~ --;~~~"::~ '\ . - \ ....... ". ~ ........,}, :~;\ :tJ":::. El e I 1 ~:. ',-~;' I O. J !~ , . ~ :" I / J / / t t lLJl ~ t ...J - '..,.. 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' ~1zv: ~~-; :!ick~ ~t-~ d.:t<,I' ~'t-nd/ -ffi-~ /1. 7J~/ ()J~ I!-eup:-~ q~L- ~~d/ ~u~~ ~~~ cUU~ .dt~ ~:ff ~ ~~:I. ~~t-~ /d4~ . ~ . //~~ d#/o ~~~~// ~~~~~ /Uh:yv ~~ ~~~ fti.!V.~ ~ ~ .--?7U/( . ~;/-u5.~ ~~~J A-7L p~ ~-rL- cud cLcd jf ~ c!~. ~ ~ ~ AAt..~ . ~ ~ _~ ~ tZ-'e~ .~~~.~~. ~ ~ ~~~.~~ ~ /U--dz~ (~ .j ~/v A-~ ~~~ ~J ~f /fS-Cl~ ~14A>.- 'ffrJ-<</ Y~7?~U/ &~ Attachment 1 pt"/y. / ~ / 9 9t- f~td ~.A,~+.ot !J~ir IE;. I 'i 96 .' CHRISTMAS LAKE 1 9 5 4-96 CABALKA . . """'- CHRISTMAS LAKE '54 - ..... ...."". . .".",... ~ ......... ......... ....-s- -c.- / SNAPSHOTS ON THIS PAGE SHOW THE PRIMITIVE CONDITION OF LAND PURCHASED BY BETTY AND JIM CABALKA FROM MRS. HOPWOOD IN 1954. THE CABALKAS CLEARED THE LAND OF BRUSH THEMSELVES AND HAD IT SURVEYED INTO FOUR PARCELS. THEY CUT DOWN OAK TREES ONA HOMESITE USING A TWO PERSON HANDSAW AND BEGAN BUILDING THEIR HOME IN 1955. . . 2. ~J~~~~~~~;:'. " . -..., \.~. :,t~~ ';,,~ '':,;it:' ", >. ~i~, .~ ~i;~<. ~ .... ) ..... " .~;;,..,': ;4-'::" , -'"~. ~..~~ .":, ~...: ...~" { ,:~~'~:>.'i'''t ,_.-:,~_ ~ ',. .it~ ." ~:l..'~;'-io,-~ .. , ."~ ,; '- ~. ". ',I.f' ,,'~':~. ~: ;,-~ .1" ~", f -,; I )'" :: -. - / f';,.~~~.4".-~ ,.l~" . \... " ..1,.... .~. "'"_ _~ "."". ,~~~~~.__ :...,. ',' ",..,:,';:"L.;~;;.,''''''' -~:""""~~"-':i' ~~~.. -~~1' '>~':,- I.~(>. \--;:' ,,':.\:,,',":, -';:;'.-',: --~: ~~!.-.~.-"-:J~j,:~ "~".'> .. ~"""";"~'.:-.-".<_ ~~':_ . " _........I.,s'..,t. ~'V,;r:..'/..'i.f-,.;..'~ ,"t-.L.-- .~-/" ,1,,:..- ..--'0.._.7 '-'-t~' ~-~.--.' "0'::,.. ,;,':~~.;,\,0~i~i~(~;~;~~JI~1~{~~~t~t~~.2.~i{:~.~. \'I\f\;,'II':""~1'I', !'{'r~~\\""\/I "'T./~t. .'\. " 1\"',;,1.'1'''' .1 "\'\ I.... .. ,,' " , \ ': i; ':{':"~ .. ,', ~_, ',- (y :,' ,\' _~_I, ,I .'1 ~:,-\\ _~' ' vh l__,{;-_~':.----A ~;..-:_,:)~.<, -~\~~~~,~_~~_ l~r--:ti,-II~;-,i~\--I'l/,J;'r-;\'l ":'" ,~ll'. ,\t" "., --.;-' t.. ;" . -~, I., I~ ! ....i . . 3 THE }i~E~'~ LA[\ESH(.lRE DC)Cf{S CCJt,JSTFiJj(-;ffE]) A~/~)t~G (~HE:,ISTtv1AS I~..~~~E JiOAD v~EItE \7EFt~{ PRIHITIVE AS SHOWN IN THESE PICTURES. THE APPROACH TO A DOCK v~AS SO TUNNELED BY MUSKF~PTS THAT SMALL LOGS ~ERE PLACED ON T~~ GIKlrINU IN 2;A.[E:F~S TO F:R()\trIiE FIR~i FOOTlr1C1 I~J ORDER TC) F~EAC~H THE DC)CK. .~ SE(:;C)t'JDAR~~{ l)()(:r< WAS BU III T B"'{ ..~ NE1>3H3.0R E.O'Y V~.b() WA~JTEI) A ftLAC:E T() L;..ll..!.Jt.Jl~H HIS BOAT. WHEN WE GRANTED PERHISSIOrJ, THE SECONDARY D(jCK HAS USED FOE LAr.ll\TCI1I~\lG ~3MALL B()ATS, F~r]BBER RAFTS._ ~:;rJ!~FISfJ SAILBOA'f ~ .~t,lD STi)F:'II'Ji3 .~ HUGE JAR! AQUATIC WEED CUTTER r--iOUNTED ON A SHELL LAKE CEDAf: STEIP POAT. THAT WEED CUTTER IS CURP~NTLY STORED IN THE GARAGE OF DR. GEORGE NOREN AND NO LONGER USED AS IT WAS DURING TEE EARLY 1960'S p~D 1970'S. If- E]{EiIB IT ~~ ...-. .~ --~~.. .... ...... .....~.. i)i~T_t!...:..i e::~F:.tt.!_-n '-' ,-'. , .- (C~i~Bl:.r".ir~A f\1E~~Ci t\.! :PL::~t'11~rlr'J{; C:()t'r1t'rlI~3SIi.:)I-'.j, f~T TI-iE Tlr,!E f)F ()rJ:fi~ l~~el F~EI~~f)EST F\:<R: (~(H.!3II.i.ER~~'rI()I~J (iF F.- ,~:--::=~:::~E F-:()r1f"zljP~F~.i F":F\.lTSTC),t..12, A :3ECCH'JDAR"'{ ri()':K H.t;[) AL,E:Ei\I1:t~ F}{ISTEI) ()I'.T TI-IE :~F'A!~~p...rl~ [,Ul' ?"OR NEAR~Y TWENTY-FIVE YEAES. THE PF~ESEl'!CE C)F THAT SEC~ONr;AF:..~{ r!Cj(~I( F'E.:EI>ATEI) 1\I-1E 'v'ILi,AGE CjF SH()Rr~~\1()(:;rJ, THE~,l r:t'ICjf'~~l t\f. t~;:(!,~:E.L::31()R. 'I'()ri~!'.j~3,=~I?! At.JI) IylC);2.T i.:ER1'Ali'1L'Y FF~EI1ATED Tr~E ~-?I-1CiREyt':)()I! CITY' C~EI.lIi'lArl(:ES AD()PTEI! Ii'~.l 1873 v~HI(~I, IIIl..,1I1IED I\TLTr.;jBEE'~ ()F [jOCKS PER F:ARCEL. vE HAD A CONCEEN ABOUT FOSSIBLE LOSS OF OUR. SECONDARY I.{)CK AND VIA THIS 1881 J:-.1Et"10 HE ALSO SOUGHT ACCEFTANCE OF A "NE~l" DC)CE AND BOUNDARY CHANGES. s- '. . 1981 AND 1984 SHOREWOOD CITY COUNCIL HEARINGS 1981-AND 1984: "THAT DOCK WOULD BE GRANDFATHERED" THE CABALKAS REQUESTED THAT THE SHOREWOOD PLANNING COMMISSION CONSIDER A POSSIBLE PROPERTY LINE REVISION BETWEEN TRACT A AND THEIR ADJOINING LOT. THIS MATTER DID EVENTUALLY GO BEFORE THE SHOREWOOD CITY COUNCIL FOR CONSIDERATION. AT THAT IME AND AGAIN BEFORE THE CITY COUNCIL IN DISCUSSION OF THEIR CHRISTMAS LAKE PROPERTY, MR. CABALKA CONVEYED HIS CONCERN ABOUT RETAINING AN EXISTING DOCK OF LONGSTANDING USE AT THE ADJOINING PARCEL. ONE COUNCIL MEMBER COMMENTED, " THAT OLD DOCK ~OULD BE GRANDFATHERED", SINCE IT WAS IN PLACE BEFORE ORDINANCES THAT NOW APPLY. . f&, DNR INTEREST IN CABALKA CHRISTMAS LAKE RESIDENCE FOR LAKE ACCESS 1983-84 WHEN THE CABALKA FAMILY BEGAN THE PROCESS OF SELLING THEIR CHRISTMAS LAKE PROPERTY DURING 1983-84, THE DNR EXPRESSED INTEREST IN PURCHASING THE CABALKA PROPERTY FOR USE AS A PUBLIC ACCESS AND PUBLIC PARK. THE DNR OFFICIALS EXPLAINED THEY WOULD MOVE THE HOUSE TO AN EMPTY LOT IN A DIFFERENT LOCATION AND CREATE A PARK ON THE HIGHER GROUND WHERE MANY BIG TREES WERE LOCATED. THE LOWER GROUND WOULD WOULD BECOME A PUBLIC ACCESS TO THE LAKE AND ADJOINING PARKING FOR VEHICLES AND BOAT TRAILERS. THE CABALKA FAMILY TOLD DNR OFFICIALS THEY WOULD NOT SELL THEIR PROPERTY TO BE USED FOR THAT PURPOSE. "WHY NOT?", WAS THE DNR RESPONSE. JIM CABALKA EXPLAINED THAT SUCH A SALE FOR THAT PURPOSE WOULD DESTROY THE IMMEDIATE NEIGHBORHOOD AS THEY HAD KNOWN IF FOR MANY YEARS. THE VALUE OF NEARBY HOMES'WOULD BE ADVERSELY INFLUENCED AND NEIGHBORS WOULD BE . EXTREMELY UNHAPPY WITH THE NOISE, TRAFFIC, AND RELATED DISTURBANCES. WHEN MR. HARVEY MACKAY LEARNED OF THE DNR PROPOSAL AND THE CABALKAS RESPONSE TO IT, HE EXPRESSED PROFOUND GRATITUDE TO JIM CABALKA. . 7 INTERSTUDY SIOR . ::NTS NOREN MADDY SOUIRES BENSON BENSON ~ER WHITMORE 3ER SMITH DANSER MACKAY STROHM FAYFlELD FAYFlELD WTTRAK WlTRAK HOLCOMB W1TFlAK . . CHRJ TENSON PETERSON HERZ KRAGNESS N AND 1990 CHRISTMAS ~KE 8 THIS IS THE LOCATION OF DOCKS USED FOR APPROXIMATELY FORTY YEARS. SECTIONS OF THE EARLIEST DOCK STILL REMAIN f~D CAN BE SEEN THERE UNDER A CURRENT DOCK. THIS SNAPSHOT WAS TAFEN OF A DOCK AT THE SITE AND IT NEEDED TO BE REPLACED AS IT SUBMERGED IN YEARS OF HIGH WATER, AND HAD BEEN LENGTHENED GREATLY TO REACH OPEN WATER DURING A SEVERE DROUGHT. (LMCD AUTHORIZED LAKESHORE OWNERS TO EXTEND THEIR DOCKS TO THE OPEN WATER DURING THE DROUGHT. ) DURING ALL THOSE YEARS NOT ONE CO~WLAINT WAS MADE AND SHOREWOOD OFFICIALS EXPRESSED NO CONCERNS ABOUT THE DOCK UNTIL JULY 1996. DUE TO HIP REPLACEMENT SURGERY A WATER LEVEL CANOE BOARDING PLATFORM IS BESIDE THE CURRENT DOCK TO FACILITATE ENTRY ~~D EXIT FROM OUR CANOE. . . Q \J .. # ------- l\t I I I ./ \/'\ :\\/ I \\ ~~ J \\ ft A~~ AA~ i t^~::'~~ \ A A AAPfi! A.~~~ ~~\ ^lA}.;.J1' ^ I .~. ~ ^~~\I ^ 1 IL' ~ ^ ;\ J~ !I . ~ ;\"'" . p 0 S ~I {1, cP1 CHRISn!AS LAKE P..OAD ~-!DERl-7ATER DOCK ~VED 1~93 '1- --~ ....1 ~ I J .......... I ~ I ~ 1996 . Kt~STER - - . ......-- i~ KUESTER CAB}'~KA +- 12/ ' CHRISTI'f.AS LAKE ROI-.D Ie I 1985 , /' /" f ./ 1 A A ~ A ~ A __,/ { ~! ~~/A l ~ ^ ^ I ,. ~ AA // \/t .I ^ J 1 1 f ... ,':A I faA A " .{ '\ A A 1 ,( ,.,.,,/ .. I' Ii r I i\ .-, Yl.f\ A ~ A " II .;- i\,1 .A 11 Ar~ t~ J~I' /{ I Jfr I A A A ......\..- \\ '\ Ii I t:- ^ j\ J A J\ ....._~ ;.\ It fi ) j ~ A I t'J-_.. __.-J:.-:.----... ." ~ I CABALKA HULIUS .." I 1;2. I' I ..I '- ..c.:. ~ !........... ~ .... - ~. . OPEN I~ATER I::t~' .,.,.......... 1987 1-fI!D 8-}!UD 1087-8 1988 - . \ 1=1 \ '- - , g MUD ~IT:'D ~D HUD }-!lm // ,? / / /' ,,' -' ,/' /" // ,// .... . ,I 1.." A\ = ^~/tb~^~ It\1 ,{ J A ~ l ~" . t1~-':'/A AA AA A,\J A I ~ A A A 'I A I .A J ^ 1 A t1 ) )1 A -. ^;t n " t, I ..,.{ If J ^ It .1 A ~ j\ l\ : ^'A ^ ^ A" I!\ If 1\_. ...--'~~ } ,~A ^ ^ .A _----.-~- --- " CABALKA HILLIlrS /2-/ I I --1 Air . * ."..., ...., 1990-91 ~ ~ I ~ I J"'-- . HIQ\,~Z~ 1-/ HATER . ~ "...". . J -"'-' ,/' I , ~ .~~ l~' COVERS X:: 110 11 I AA // 1\ A I I ^ (( 1\ ^ A^," \./ DOCK J A" ~ I ^ A. (\ f\ f\\ ~/ ,\ '\ f^. ~ 1\ ^ ^ It A ^ .,.,.,.... ['\/{' ^ I'A A,,1 ^ .~~ -- - I r.ABALKA . I Z II 1991 KUESTER II ;0 / .... / .. .L----" / / " j ,; ~ ~ ~ f-J . N . N . . 199EJ *REMAINING SECTIONS OF E}RLIEST DOCKS * I i ..J Ji.u.:: '-- - C~~OE PLATFORM NOT VISIBLE TO NEIGHBORS /2 . . -= MARKHURD SALES ORDER - Sales Order No: 5689 Date: 07/31/96 File In: 4001000 Amount: $30.00 Archive As: Chrg Time To: 4001000 Tax: $0.00 Date promised: 07/31/96 L:x G: MHrep: LLJ Shipping: Time promised: Payment Terms: COD Rushcharge: Authority: verbal Tax Status: service Total: $30.00 .BILL TO -: Client No: SHIP TO: Y (y/n) - Ship Via: Company: JIM CABALKA Company: JIM CABALKA Address: Address: Address: Address: City: State: MN City: State: MN Phone: (612) 933-2740 Zip: Phone: (612) 933-2740 Zip: At tn: MR. JIM CABALKA At tn: MR. JIM CABALKA Fax: Fax: Special Instructions: PHOTO OBSERVATION SESSION OF THE S 1/2 OF SECTION 35 Tl17, R23 IN HENNEPIN CO., MN. YEARS VIEWED: 1962 AA-3-28, 1965AQC-347, 1967 BDR-3-168 AND 1971 CLK-47, 48. 4 TOTAL. rty- What Scale SYmbol = Exp No Amount = * RESEARCH $30.00 . , .tructions: YEARS VIEWED: AA-3-28 AQC-347 BDR-3-168 CLK-47,48 PAID IN FULL WITH CHECK. $30.0!cr/ V /4 ~ailJl' .1UL:Li:~~~l~~ ~"'~ -f!:.... _::' - -:.-r-:~J;-~<<-";":s~;:""-~<:~=> "'--'ji!"gjl.m_~U9~q~~!i\~~~~~IQJ:!~j!;ii(! rr~~ilii.!ii" t.': .. -'. .'~, ~. t F ! Star, Tribune -. . ~~ fled'. Ads . Inside/Picture Classified on Back 'page . " .~ .' . ~~. Saturday September 7/1991 1R . II' ....'..;.-..:....~~.. .- ......~ t:;'y r.r- .'. .,.'~\...':..... . "\~: Parade ~ " , of' Homes . . ,-. . The house below, on Christmas Lake in Shorewood, was moved to make way for the hOUJI far left, designe y Minneapolis architect. Tom Ellison. At left, Ellison stood in the top-floor master . bedroom with Stephen Bruce,: the builder. i Twin Citi~s I: i builders show 537 houses. This 15-day event is the Minneapolis and St.. Paul builders associations' biggest marketing event of the year. Builders hope to sell all the homes in the parade, . . worth a total of more than $125 million, plus enough additional houses to keep them busy all year. In the Twin Cities the event is popular even with people who are not in the market for a new home. According to Vi Traynor, executive vice president of the Minneapolis Builders Association, about 200,000 people are expected to tour the homes this year. - "Our whole industry, right down to individual tradesmen, put their hearts and souls and energies into Parade continued on page 2R . . August 1996 Christmas Lake Neighbors: Our intent in writing to you is to explain a forthcoming mailing from the City of Shorewood. That mailing announces a public hearing, September 3, at Shorewood City Hall. The topic, "Shorewood City Code Violation" pertains to a legal-sized dock at the Cabalka Christmas Lake property. A complainant alleges Cabalka violation of a city code in that "their dock has grown,. and possibly the Cabalka long-standing dock rights should not be "grandfathered." We believe the dock is "grandfathered" since we have maintained a dock at that site dating from the 1950's, and presence of a dock at that site since the 1950's predates relevant city ordinances by many years. Our continuing forty plus years of annual property taxes and Christmas Lake ' Association fees are evidence of our continuous interest in care of Christmas Lake environmental quality. Revisions to our dock during the mostly recent ten years include authorized lengthening (for all LMCD lake shore owners) to reach open water during a severe drought, removal and replacement of that lengthened dock as water level rose much higher thereby submerging the entire dock. The submerged dock was removed in 1992 - 93 and replaced by one of lesser length, but above water level. At that time we attached a short, canoe-boarding platform at water level, and an eight foot sloping ramp to assist our entry into and disembarking from the canoe. A section of the canoe platform rests upon an underwater 1950's vintage dock section which could not be removed. Your understanding in this matter would be greatly appreciated as our family begins to defend our property rights during scheduled public hearings. Sincerely, Betty Cabalka Jim Cabalka . . CITY OF SHOREWOOD PLANNING COMMISSION MEETING TUESDAY, SEPTEMBER 3, 1996 COUNCIL CHAMBERS 5755 COUNTRY CLUB ROAD 7:00 P.M. MINUTES CALL TO ORDER Chair Borkon called the meeting to order at 7:01 p.m. ROLL CALL Present: Chair Borkon; Commissioners Foust (arrived at 7: 19 p.m.), Kolstad, Lizee, Pisula, Rosenberger, Turgeon; Council Liaison Benson and Planning Director Nielsen. APPROVAL OF MINUTES Turgeon moved, Pisula seconded to approve the August 6, 1996 Planning Commission meeting minutes as submitted. Motion passed 5/0. (Chair Borkon abstained.) . 1. PUBLIC HEARING. APPEAL INTERPRETATION OF CITY CODE REGARDING NONCONFORMING DOCKS Applicant: James Cabalka 58XX Christmas Lake Road Location: Chair Borkon announced the case and explained the procedure which would be followed with respect to the public hearing. Chair Borkon requested an analysis of the case from Planning Director Nielsen who reviewed the matter in detail. Jim and Betty Cabalka appeared with their family to address the Commission. Mr. Cabalka provided each Commissioner with a typewritten copy of his presentation. He explained he has never received any complaints regarding the dock or docking privileges. The Cabalkas have received letters and telephone calls in support of continued dockage. Mr. Cabalka provided a packet of information, including copies of letters of support on his behalf. He noted others in support of the dock have contacted the Mayor and other officials to express their approval, however, they were unwilling to write letters out of concern for the relationship this would create with the complainant. Mr. Cabalka stated a dock of varying shapes and sizes has been in existence on the property predating 1981 and 1965. Mr. Cabalka questioned why, after 42 years of dock existence, there is a demand for him to respond immediately with removal of the dock. Mr. Cabalka stated this issue should be reviewed if the City codes are to be applied equally to everyone. He noted there are two situations on the lake in which docks were built in the 1950s. There are no residence on the property , however the docks are there. Mr. Cabalka feels there exists a tolerance around the lake with respect to issues of this nature. Mr. Cabalka commented when the extended dock was installed, it was placed as a handicapped ramp for a family member. He stated there would be a need for this now and in the future. Mr. PLANNING COlVIMISSION MEETING SEPTEMBER 3, 1996 . PAGE 2 Cabalka noted there is a requirement in which the least restrictive environment and program must be provided. Chair Borkon opened the public hearing at 7:36 p.m. Kevin Kuester, addressed the Commission explaining he is the property owner next to the Cabalka property. He stated there was a dock on the Cabalkas' property when he moved in in approximately 1991. Mr. Kuester explained the dock at that time was very sheltered, however, in the past two to three years, the dock was removed completely and anew, significantly larger dock installed. The old pieces were assembled next to the new dock forming a canoe ramp. Mr. Kuester pointed out he had recently visited the property and noted there were three docks and four boats on the property in addition to an underground storage tank, a lawn mower, as well as a host of building materials. He further noticed a fence which had been reinforced in the past year. Mr. Kuester expressed concern the area will begin to resemble a marina. In addition, he has noticed children from the nearby apartment complex playing unsupervised on the pontoon boat and expressed a safety concern relative to this. . Hearing no further testimony, Chair Borkon closed the public hearing at 7:40 p.m. Commissioner Kolstad inquired with respect to the requirements for replacement of a nonconforming dock. Planning Director Nielsen explained any nonconforming structure can be repaired up to 50 percent of its value, however, at any point a dock is destroyed or removed to 50 percent of its value, the grandfathered rights are lost. Chair Borkon asked about docks which are removed in the winter and put back in place in the spring. Nielsen stated this is difficult to determine, however, the City attempts to be flexible in terms of docks being seasonal. He further pointed out the City has been flexible with respect to the lengthening of docks. Chair Borkon suggested on alternative would be to allow the older dock to remain with its present use, but that the new dock be required to be removed. Commissioner Kolstad asked if the old dock was safe to continue to use. Mr. Cabalka commented most of the lumber has been discarded because most of the dock had been underwater. He . explained the useable fragments of the dock had been utilized and that the new dock covers up the original dock from 1950. Chair Borkon inquired as to boat storage during the wintertime. Mr. Cabalka stated there would be no storage of boats over the winter. Chair Borkon asked Planning Director Nielsen to address the issue as to the use of the property if there is no proof to show there was a dock which had been grandfathered in. Nielsen stated the property could still be used, however, it could not be used for swimming or fishing. One possibility would be to sell the property to an adjoining property owner. Nielsen explained it is a remanent piece of property which is unbuildable. Commissioner Turgeon did not feel the burden of proof which is placed upon the applicant had been met. She expressed her concern for the number of docks on the property, the number of watercraft present at the docks and the number of people utilizing the property. Commissioner Turgeon commented that giving approval to this request would be allowing the Cabalkas a use other property owners would not be permitted to have. PLANNING COMMISSION MEETING SEPTEMBER 3, 1996 - PAGE 3 Chair Borkon noted this is a small piece of property which has remained in the family. If the grandfathered dock is not allowed, the property would not remain in the family since it has no use other than to be sold off. Chair Borkon stated she would like to reach a conclusion which would be in conformance ':/ita the ordinance, but aUoYI the Cabalkas to utilize the dock had the dock been in confonnance with the ordinance and remained in continous useage, this would allow the Cabalkas to utilize the dock.. . Mr. Cabalka explained he utilizes the public access for the watercraft. He stated he would be willing to remove the older material which is longer and extends further into the lake due to a low water level. A newer, much shorter dock was put in its place. Chair Borkon noted if the Commission were to reach a consensus the dock had been grandfathered, 50 percent of the old dock and 50 percent of the new dock would need to be maintained for one year and the remaining 50 percent of the old dock replaced the following year. Commissioner Kolstad expressed her belief some proof should be obtainable to verify the existence of the dock in 1965 which would allow it to be grandfathered in. Commissioners Turgeon and Pisula noted their agreement. Commissioner Foust suggested tabling the matter for two weeks to allow Mr. Cabalka to obtain some proof the docks had been present on the lake. Mr. Cabalka noted the people who would have knowledge of the existence of the dock are deceased. Commissioner Turgeon suggested aerial photos, the original survey work and any available witnesses should be submitted to the Commission. It would be acceptable to have letters from two neighbors verifying a dock has been in place and continuously maintained since 1965. Commissioner Kolstad felt it would be sufficient to have two people come forward who could attest to the existence of the dock since 1965. Commissioner Rosenberger noted reasonable use of the property would need to be discussed in the future. . Foust moved, Pisula seconded to table consideration of the Appeal Interpretation of City Code Regarding Nonconforming Docks for James cabalka, 58XX Christmas Lake Road, to the October 1, 1996, Planning Commission Meeting. Motion passed 7/0. Chair Borkon informed Mr. Cabalka he will need to submit the requested information one week prior the scheduled meeting on October 1, 1996. 2. PUBLIC HEARING - APPEAL INTERPRETATION OF CITY CODE REGARDING SETBACKS IN AMESBURY P.U.D. Applicant: McNulty Construction Co. 4613 Bayswater Road Location: Chair Borkon announced the case and reviewed the procedure for the public hearing. She requested a review of the matter from Planning Director Nielsen who reviewed the case in detail. Jim McNulty appeared and addressed the Commission. Mr. McNulty explained the subject unit is currently under construction to be displayed in the Parade of Homes. He expressed his belief the presence of a deck is necessary for a successful sale of the home. Mr. McNulty noted the deck CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD. SHOREWOOD, MINNESOTA 55331-8927 · (612) 474-3236 MEMORANDUM TO: FROM: Planning Commission, Mayor and City Council Brad Nielsen . DAlE: RE: FILE NO.: 26 September 1996 Cabalka - Dock Appeal 405 (96.18) Attached are letters submitted by Jim Cabalka which support his contention that a dock existed on his property prior to the City's current codes. Also attached are letters which tend to dispute the existence of the dock. This item is scheduled for further consideration at the 1 October Planning Commission meeting. If you have any questions regarding this matter, please call me. cc: Jim Hurm Tim Keane Jim Cabalka . A Residential Community on Lake Minnetonka's South Shore ~. BILLY L. MADDY 5330 Beacon Hill Road · Box 220 ) Minnetonka, MN 55345 I (612) fiLE COP y1 - , /J.' /-../ /'~i..../ /~,J:;.j"J:- \ '-' ,....t..... -'-"-~;_....it. ~ .~ 1.1," . August 31, 1996 TO: Mr. Brad Neilson, City Planner City of Shorewood Dear Mr. Neilson: . A former neighbor, Mr. James Cabalka, has asked me to write and corroborate some events of some of our years at Christmas Lake. The bay Mr. Cabalka and I were on is shallow (maybe because this is the corner with the channel that carries the lake's overflow to Lake Minnetonka). Silt and other debris is probably carried into and filled up this area of the lake. This bay, being shallOW, was an invitation for aquatic nuisance weeds to thrive. We tried many things to try and salvage weed-free areas to realize some water recreational value from the lake. . At one point, we went together and hired a commercial aquatic weed harvester. This commercial weed harvester told us then that we neighbors would have to keep at it or the weeds would grow right back. At this point, Mr. Cabalka was instrumental in organ- izing neighbors to purchase a Jari underwater weed cutter. Dr. Noren, a neighbor and Co-owner of the cutter, donated a boat that the equipment could be permanently installed on for more convenient use. The donated boat was moved around from neighbor to neighbor as needed to help control the weeds. This boat and the weedcutter caused a need for extra dockage or a second dock. I recall that Mr. Cabalka had an extra dock in those[~_a_~~_~_ ---- Someone recalled that it was 1959 when we bought the Jari weed- C1itt:er-:----These were-the--.ye-ars--our families were growing up and needed boats, canoes, ski boats, fishing boats, paddle boats, etc.--all requiring dockage. It is not feasible to make a dock any longer than 50 ft. So, to accommodate the extra watercraft, I recall Mr. Cabalka had two docks. I added another section to my dock to form an "L". Another guy that should recall Cabalka's second dock should be Dr. Noren's middle son George. Young George and I were asked . . page 2 August 31, 1996 TO: Mr. Brad Neilson to do some aquatic weed mowing one afternoon. We walked down to Cabalka's shore to prepare the equipment for use. The weedcutter was top heavy and caused the boat to want to tip. If one got careless and did not keep the rig properly trimmed, the boat would tip over. George and I got careless, andover we went. So George and I got to view Cabalka's second dock from a unique "water's edge" perspective! Very truly yours, ~ ::.---- Billy L. Maddy 988-7786 MR. BRAD NIELSEN, PLANNING DIRECTOR AND SHOREWOOD PLANNING COMMISSION MEMBERS CITY OF SHOREWOOD, MINNESOTA THE ATTACHED MATERIALS ARE SUBMITTED AS FURTHER CONCLUSIVE EVIDENCE YOU HAD REQUESTED IN ADDITION TO EARLIER LETTERS FORWARDED FROM OUR LONGTIME NEIGHBORS, DR. AND MRS. GEORGE NOREN, AND MR BILL MADDY. ADDITIONAL MATERIALS INCLUDE THE FOLLOWING: 1. LETTER FROM DR. LEE HERMANN, CHRISTMAS LAKE RESIDENT SEPTEMBER 22, 1996 . 2. LETTER FROM JOHN AND MARY SCHMITT, CHRISTMAS LAKE RESIDENT 3. LETTER FROM MR. LARS ANDERSON, FORMER CHRISTMAS LAKE RESIDENT I HAVE WITHHELD ONE LETTER FROM MR. AND MRS. JERRY HILLIUS WHO PURCHASED THE ADJOINING PROPERTY FROM THE CABALKA FAMILY IN 1985, THEN SOLD IT TO MR. AND MRS. KUESTER IN 1990. THEIR LETTER ACKNOWLEDGES PRESENCE OF THE CABALKA DOCK AND BOAT THROUGHOUT HILLIUS'S INTERVAL OF PREPURCHASE AND OWNERSHIP. SINCE THE RECENT CONCERN FOCUSES ON GRANDFATHERING PRIOR TO 1965 ENACTMENT OF RELEVANT CITY CODES, I HAVE INCLUDED ONLY THOSE DOCUMENTS PERTAINING TO THAT TIME UNLESS OTHERWISE REQUESTED BY PLANNING DEPARTMENT. AN ATTEMPT WAS MADE TO CONTACT SURVEYORS (ISRAELSON ASSOCIATES) USED BY CABALKA FAMILY IN 1981. VERIFICATION OF DIRECTIONS GIVEN TO SURVEYORS BY MR. CABALKA WAS REQUESTED BY ONE MEMBER OF THE PLANNING COMMISSION. .VERAL TELEPHONE CALLS REVEALED ISRAELSON ASSOCIATES HAD GONE OUT OF SINESS SEVERAL YEARS AGO. A COpy OF THE ORIGINAL RECEIPT FOR SERVICES REQUESTED BY MR. CABALKA IN 1981 IS INCLUDED. . JAMES CABALKA ~e~ . . i;:I}~-~_;(~,~,?E ~~q~6i~ 'I{ i!J I --. l. G ,~v J 1. I, iW L p..J/. .. - W L?y ..._----......_.,....~'.....- To Shorewood Planning Commision: Rea ,Jim Cabalka Request For Dock Variance t:;i:?pt. ';:;,1 cF'i.;:; I have lived at Christmas Lake for fortv vears. 1 support Jim Cabalka~s claim that his dock t,as been located at its present location since before 1960n He !"}2S always beer} envir-onmen'tally concerned about lake qualitYQ ~:::, lY' r- ('? I '/' yo I,..!. 1"- '0; " ()(~ (! ~~~4"~ - [i lllf ~.... ':.~.:: F::' !.-j E..' 1/" in .~). r-i r'i 20765 Radiss(~n K(J~ :~~:r";C]I''''E!t'''Jc)c)d" ('In" i:j. '/q. .-- C? ::~; Ci b ~ . . .. ;::':u ......J -".' f . _". i\~]. E:: i. ~5 Ci i-I '__:t '-1., 'I C;C;::.. .1. / ."'."; F~e'r Dock on Jim Cabalka:s p~oper~y W~ have be81,r-esidents of Christmas Lake .1:..--...- I '--'f ~5f) ....;ear ":5. alonq Ct1ris.tmas Lake Road and boated on the lake .for all :C:QL ...l :Wt,A::r. we agree with ~Jim 'that his dock has been located at its present locaticJn since before 1960" H2 \l 1 n ;~] 1.,'\Jc.~ 1 k e c:i t If e s. E~ \/ i2 c.i r-'s =J ft42~1 ~ 5~ Mar"v and John Schmitt 20725 Radisson Rd~ :::::; 1""1 C) Ir E::' t..\j C) C) ["j ~ i\"j roO, .. {~ ./' l1 ::?i ~:::: :~~~ .!~~ . . ____________ _______u______;________ ..~. / / - / 9 9 ~ ----L}-~-~-~. _ ~~. . . ~ r:-ruu - rJ-~~~ ?&- (~~J ~~- ~~~~~ A:::i..-r~ ~J ? ' ,/ ,- --t- . ____~~~ ~L I~~~ rl (;Y j - ./ ' ~-(,~1 ~- /~-<J ~1-~~-d-lu-~ ~ ----~~--I-'9~';; () k/ r 7 ~ ~ ~ ~+/~ (/ ;;r-r/~~~ . . lA' Israelson & Associates, Inc. CONSULTING ENG!NEERS, LAND SURVEYORS SUITE 185,9100 '.VEST BLOOMINGTON FREEWAY . B~OO~f:NGTON. ~1jNNESOT,A, 55431 · PHONE: 884.5371 STAT EM PIT TO: James Cabalka 5885 Christmas Lake Rd. Excelsior, MN 55331 D,~TE: 2-28-82 -- I PROJECT NO. DATE !NVOICE AMOUNT PA YMENT A.t.iOUNT i BALANCE DUE 104-278 6-25-81 I $ 618.78 $ 618.78 7-14-81 I $ 618.78 0 I I 7-25-81 280.00 280.00 I 9-21-81 80 .00 200.00 10-19-81 70.00 130.00 11-14-81 40.00 90 . 00 1-18-82 50.00 40.00 2-17-82 40.00 0 1&98 :78 I I I I I . CURRENT OVERDUE FINANCE CHARGE BILLING 30 DAYS 60 DAYS 90 DAYS & OVER TERMS : PAYMENT IN FULL WITHIN 30 0;','1 FRor~ DATE OF INVOICE A 1 t% PER ;1QNTH fiNANCE CHARGE WILL BE t{.: ~ ON ALL P.~ST DUE ACCOUNTS THANK YOU ~ \ ,- ""~ ., ,"; Ie::: (rj Ie:: 11 ~/7 i~ n: "~r:~';';; 1;~=~i t:t~ ~. rJ 0Y'/[ '11(' Rtr I. ,t~~pt ~ ~ fA- Mn'4 ~,,~ ~ vU- ~ Jv ~ e IAn'~ ~ cl W/1<Z /J1U1.M M~ (;Z 'I}-- r/#1 '--- .. .~tL~.~~.k~. '~_~~ ~m q~_ ~~_/~f4U a~~ ~_-_ ~ -~-- C:f %Co~ 0-/l/flC2eftCr1,~r kL ~ a!fttdilz V:je~n f.Ol~l&(_ af dJ-jJ,O(~'L d~dff.l ~_ _~__ ~_' ~_.. _/V\J1rJu... {lttf/VlL jp~ CUtHf!. fl:af do-cA- ~- ~ ~} F~f~''1t ' e/#1 .._L.~-._. ~... .~.iu..'0~.!l.'~~. ...6)_,...(a.1.E.'.oo..d.._..~.i&ii& 1....14..;~~......'..) at.' ~.........;:.~. . -!tjf1J ~ dt~u i/u /lo~0p'/1 t/ii2 cd2&>- .A4>- . 0-. . t;rJ... CtJt r:€ ~ - . jtvIVL 4 7/'t. !dZd~ 4: 'Yf1/"<-:1811~fb ~/~ cJ#z!ftl r; ,(~ /U/t;l?RJ ... - (i11'/L(jvCl-C. C-~~~~P'- ~~ -;tf..d U~J., ~&~, . ,) I r//1 Q1Jn!(:14rrvtl-k _763 FF~(5f.1/!i!!ltjt~?Aj!-0~7J. l' () e e ~. 9-03-1996 1 :01PM FROM TECH LEARNING CAMPUS 612 535 2131 P.1 fiLE COpy /7.. .I l_ 2~". )-'. Septembor 3, 1996 To: Brad N., Building Inspector From: Mike Pierro, resident at 5880 Christmas Lake Road Re: Cabalka Hearing I have been asked to provide recollections pertaining to the presence or absence of a dock at the current Cabalka propeny. All that I shall say is the truth as I know it. It is always difficult to "get in the middfe;' of controversy between neighbors. but I assume offering what one honestly recalls should be taken in the spirit intended. As to the presence of a dock at the current Cabalka site, since our moving to 5890 Christmas lake Road in 1973 to the date of the property "split- (Caban~a home and most of the property sold) I recall no dock on the current Cabalka site. J believe I would unquestionably recall it being there if it were used. I recall being quite interested in the dock usage/rights along the lake. Mrs.' Danser and I each have 40' of the 80' in lot 164(property next to CabaU'\as'). Mrs. Danser wasn't living here when we moved in(her house was rented) so I could not ask her. But I did inquire with Hennepin county and neighbors. I do not recall a dock being on the property in question during that inquiry. ~-fP-:j"/...~.;--' j' .' .. ~~~I~. 'i' Robert W. Fayfield SEP :j 0 1996 b: 6005 Christmas Lake Road Shorewood, MN 55331 By September 27, 1996 Shorewood Planning Commission Shorewood City Offices 5755 Country Club Road Shorewood, MN 55331 Dear Commissioners, . You have asked me for my recollections as to the history of the dock located on the small piece of Christmas Lake shoreline property currently owned by someone in the Cabalka family. This is the property immediately to the North of the Kuester property at 5885 Christmas Lake Road. I do not recall ever seeing a dock used in that location, just off Christmas Lake Road, until the current dock was put there by the Cabalkas several years ago. The dock for what. used to be the Cabalka home, now the Kuester home, was always located much further to the Southeast, about where the Kuester dock is now. I have lived at my current address (South of the Cabalka location) since 1942, except for a few years during which I lived in Excelsior and Chanhassen, but continued to spend time at Christmas Lake. I conservatively calculate that I have passed that location about 50,000 times over that period. . Enclosed for your reference is a map showing my estimate of the current and historical locations of the dock; note that the Kuester property was the Hillius property at the time . this map was made. Let me know if you would like any additional information. very. truly yours, .. / Y ~ .~o-/ 4~ Robert W. Fayfield encl. . I I I I LAKE MINNETONKA f/1,fme;C~ 7cC.<' ac/H70tJ CHRISTI ~ . HORSE FARM OWEN BENNETT LAKE LUCY RO HOBBS The Shorewood Planning Commission 5755 Country Club Road Shorewood, Minnesota 55331 i.~IE..~~n~~~ -~( nCT 11996 IU j U ' I By Dear Commission Members: . I purchased our first piece of property on Christmas Lake in 1936. My family and I moved to the house on the corner of Christmas Lake Road and 3rd in 1942. The land and home on the point (now owned by the Mackays), was bought in 1954 from Mr. and Mrs. Hopwood. At that time, I had the opportunity to purchase the entire parcel including the property later purchased by the Cabalka's, but I chose not to buy the larger piece, only the approximately 5 acre point. I walked the property in question several times before making my decision and do not recall a dock anywhere along lakeshore. When I purchased the point there were two driveways to that location. One followed the lake,the other was higher off Christmas Lake Road (the current Mackay driveway). The Cabalkas had one dock in the present location of the Kuester's dock. I drove by the single dock many times daily on the Cabalka property as I followed the upper driveway. I used the upper driveway until we moved away in1970. A second dock was not constructed or used by Mr. Cabalka during my time on Christmas lake. . Sincerely. J~ [ .~ Harry E. Benson 820 Santa Vera Drive Apt 102 Chanhassen, MN 55317 474-8746 0usan Benson Consultant Product Development · Catalo8 · Retail · Import. Domestic September 30. 1996 li!Qi~~~D~~~ I~ OCT 11996 IY I By Shorewood Planning Commission 5755 Country Club Road Shorewood, MN 55331 Dear Commission Members, . I first moved to Christmas Lake in 1965, living with my in-laws while looking for a home to purchase. After living in Richfield during the interim, we were able to purchase our current home at 5820 Christmas Lake Road in 1967. During these first years we worked on the house and shoreline. We were asked if we would like to share in the ownership of a "weed cutting" machine owned and used by Mr. Maddy, Dr. Noren, and Mr. Cabalka. We used it a few times (along with a bed spring) to reduce the weeds. The boat and weed cutter were housed at either Mr. Maddy's or Mr. Cabalka's docks. As I remember it, they were moored at a separate leg of Mr. Cabalka's dock immediately adjacent to his regular dock. . The current dock being used by the Cabalka's was built only after the sale of the homesteaded property to the Hillius'. Sincerely, ~.- Q ~-J Susan O. Benson 5820 Christmas Lake Road · 6horewood. MN 55331. (612) 474-6432 PLANNING COMMISSION REGULAR MEETING OCTOBER 1, 1996 - PAGE 3 Commissioner Foust inquired when the capacity would be exhausted on this site. Mr. Boyd noted with the ability to add a second BTS unit, he does not anticipate exhausting the capacity. Commissioner Kolstad inquired if a mailing had been completed to residents in the area. Nielsen stated notice had been sent to all residents within 500 feet of the site. . Commissioner Kolstad stated she would like restrictions on how the antennas look on the water tower. Commissioner Foust related his understanding this conditional use was only for PCS and no other services. Nielsen confirmed this is specific to their request. Chair Borkon clarified the Planning Commission is not discussing amending the ordinance to allow uses with conditions, but that the Commission is discussing a C.U.P. Nielsen noted an ordinance amendment would come back at some future time, possibly a work session in October. Commissioner Foust inquired how many cell sites Sprint has identified for placement Shorewood and Mr. Boyd confirmed this to be the only site. Turgeon moved, Foust seconded approving a Conditional Use Permit to co-locate personal communications services antennas on the Shore wood water tower for SBA, Inc., (representing Sprint Spectrum L.P.), 5500 Old Market Road, subject to staff recommendations. Motion passed 5/0. Chair Borkon noted this issue will corne before the City Council for their consideration on Monday, October 28, 1996, at 7:30 p.m. 3. PUBLIC HEARING - APPEAL INTERPRETATION OF CITY CODE REGARDING NONCONFORMING DOCKS (Tabled at the 9/3/96 Planning Commission Meeting) Applicant: Location: James Cabalka 58XX Christmas Lake Road . Chair Borkon announced the case and reviewed the procedure to be followed for a public hearing. Chair Borkon then requested a review of the matter from Planning Director Nielsen. Nielsen noted this matter had been tabled at the September 3, 1996, meeting of the Planning Commission to allow Mr. Cabalka an opportunity to provide verification that the dock on his property was in existence prior to the City's current codes. Mr. Cabalka appeared to address the Commission. He stated he attempted to respond to the direction of the Planning Commission and focused on the primary issue of grandfathering. Mr. Cabalka noted he withheld a letter from the Hillius family regarding, at the time of their pre- purchase, how Mr. Cabalka explained about the dock and their property. He noted comments have been made there was no dock at the time of the Hillius sale to Kuester in 1990 and he stated he would address those comments if it became necessary. Mr. Cabalka pointed out the Planning Commission received many letters, some which were unsolicited, from people who recall a dock having been in existence for many years. Mr. Cabalka was not in agreement with comments made at the September 3, 1996, Planning Commission meeting indicating four power boats were noticed at the dock and that there has been increased activity at the dock. Chair Borkon opened the public hearing at 8:16 p.m. PLANNING COMMISSION REGULAR MEETING OCTOBER 1, 1996 - PAGE 4 Kevin Kuester, appeared to address the Commission stating he was curious about a document which was falsified to the City. Chair Borkon clarified that even though Mr. Cabalka states there were two docks on property, he asked the surveyor at the time of the survey not to show the second dock on the property because he would not have been in compliance with the local ordinance. That was the reason the dock in question was not reflected on the original survey. Hearing no further public testimony, the public hearing was closed at 8:19 p.m. Chair Borkon asked for input on how the Planning Commission would be expected to proceed on this issue. Nielsen stated the Planning Commission is required by the ordinance to make determinations on appeals of the zoning ordinance. Chair Borkon asked if the City Attorney should be included in this discussion. Nielsen stated the City Attorney has been copied on this material and he had not noted any suggestions on this matter. Chair Borkon noted Mr. Cabalka had been asked to produce proof by way of letters and written documentation, however, she did receive calls and letters to the contrary. Chair Borkon pointed out she has not seen any conclusive evidence to show a dock had been in existence. Commissioner Turgeon did not feel the burden of proof had been met. Commissioner Foust felt Mr. Cabalka had complied with the request of the Planning Commission. Commissioner Turgeon pointed out he had been asked to obtain other proof as well. Commissioner Kolstad noted other situations could corne up in the future and she did not feel enough evidence had been presented to support this issue one way or the other and that conclusive evidence to support the claim would be needed. Commissioner Lizee noted her concurrence with Commissioner Kolstad. Chair Borkon noted her concurrence as well. Commissioner Turgeon noted the Planning Commission had asked for aerial photos, surveys and letters. She pointed out the Planning Commission received a few letters and an equal number to the opposite. Chair Borkon asked for any other evidence which could be provided. Mr. Cabalka noted it would be hard to prove. He pointed out in going into a civil suit, the burden of proof will transfer to the City rather than himself. He feels he has done everything humanly possible to prove his point. Mr. Cabalka feels things are hidden by nature and there would not be any aerial surveys which would show the dock due to ice on the lake. . Commissioner Kolstad suggested if Mr. Cabalka is able to corne up with any new evidence, this could possibly be addressed by the City Council. . Chair Borkon asked what uses of the property would still be able to Mr. Cabalka. Nielsen stated the beach could be used for fishing, swimming and picnicking. Turgeon moved, Kolstad seconded to deny the appeal of the interpretation of the City Code regarding nonconforming docks for James Cabalka, 58XX Christmas Lake Road. Motion passed 411. Foust was the dissenting vote. Chair Borkon noted this matter will corne before the City Council on Monday, October 28, 1996, at 7:30 p.m. She informed Mr. Cabalka if he is able to locate conclusive evidence, it would be imperative to bring that with him to that meeting. Chair Borkon suggested Mr. Cabalka speak with Mr. Zinn with respect to possible aerial photos of the area. Planning Director Nielsen noted the city may have some information with respect to other aerial photos and suggested Mr. Cabalka call him regarding this. Commissioner Lizee also gave Mr. Cabalka another source to contact. REGULAR CITY COUNCIL MINUTES OCTOBER 28, 1996 - PAGE 4 . Mayor Bean noted the additional space on the platform where the BTS unit is to be located and asked if any plans were anticipated for the future use of this space. Mr. Runkle explained the platform has space available for an additional BTS unit as well as amplifiers and work space. Mayor Bean also asked what type of fence would be used. Ms. Dusil stated the fence would be a 6-foot high chain link fence with barbed wire along the top for security purposes. Councilmember Shaw felt the platform was large and asked what was anticipated to be contained on the platform. Mr. Runkle explained the platform could accommodate additional equipment or an additional BTS unit if the present unit exhausts its capacity. Councilmember Shaw inquired if approval of this request would constitute approval of other changes SBA may want to make. Nielsen noted if SBA would want to change the antenna or equipment, a request would need to be brought before the City. Councilmember Shaw expressed concern that additional BTS units would be added beyond the two for which there is space and he stated he would be more comfortable with a building should additional BTS units be requested. City Administrator Hurm noted these concerns could be addressed in the lease agreement which will be reached between the City and SBA. Shaw moved, McCarty seconded directing staff to prepare a Findings of Fact approving a Conditional Use Permit to co-locate personal communications services antennas on Shorewood Water Tower for SBA, Inc., representing Sprint Spectrum L.P., 5500 Old Market Road subject to entering into an agreement. Motion passed 5/0. Mayor Bean noted he would be in agreement with Councilmember Shaw that a building should enclose the equipment should additional BTS units become necessary beyond the capacity of the proposed platform. D. Consideration of a Motion to Direct Staff to Prepare a Findings of Fact Regarding Appeal Interpretation of City Code Regarding N on- conforming Docks Applicant: James Cabalka Location: 58XX Christmas Lake Road . Attorney Mark Kelly appeared on behalf of the Cabalkas. Mr. Kelly explained the position of the Cabalkas and stated he felt it reasonable for the Council to conclude the Cabalkas' dock rights were grandfathered in. Councilmember Stover related her understanding the issue is not how long the Cabalkas have lived in their home, but rather how long the dock has been in existence. She pointed out letters had been received from people expressing their memory of what existed in the 1960s and that approximately half of the letters submitted recall a dock and half recalled no dock. Councilmember Stover suggested staff be directed to research the Hennepin County archives to assist in arriving at a definite answer. Planning Director Nielsen was uncertain if the aerials at Hennepin County would reveal anything different than the aerials which had been provided by Mr. Cabalka, however he noted staff could research this matter. Councilmember Shaw suggested the DNR may have aerial photographs which were obtained during a study which was made of the lake. He felt the DNR would be a more helpful source. REGULAR. CITY COUNCIL MINUTES OCTOBER 28, 1996 - PAGE 5 Mayor Bean noted the issue of the dock had been raised due to the concerns of residents. He felt it would be appropriate to have staff research the matter to reach a complete conclusion. Councilmember McCarty noted her agreement. Stover moved, McCarty seconded directing staff to research the matter and continuing the matter to November 25, 1996, for further consideration. Motion passed 5/0. **** 7. CONSIDERATION OF MOTIONS REGARDING PROPERTY LOCATION AT 25565 SMITHTOWN ROAD Ms. Naomi Carlson appeared to address the Council. A. Consideration of a Motion Regarding Safety Concerns Related to Abandoned Property Mayor Bean commented that since security has been maintained he would be willing to allow this matter to be continued, however he asked that staff review the property on a weekly basis to assure security is maintained. . B. Consideration of a Motion Regarding Request to Abate Charges Levied Mayor Bean noted the Council had previously discussed the sump pump charges were not intended to be punitive in nature as much as to ensure participation. He stated he would be inclined to waive the sump pump charges for this year, however he would not be in favor of abating the legal fees. Councilmember Stover felt this would be a reasonable compromise. Ms. Carlson addressed the Council expressing her disappointment the hearing had not been postponed, but rather remained on the agenda at the last Council meeting. Mayor Bean clarified that this matter had in fact been tabled that evening. Ms. Carlson stated she had asked to have the matter tabled and this request was denied. Mayor Bean pointed out that he cannot of his own accord arbitrarily remove a matter from the agenda. The direction the evening of the meeting was that no action would be taken. Ms. Carlson stated she did not feel the sump pump charges were a service and requested that all of . the sump pump fees be abated. She pointed out she had addressed the issue immediately after she was made aware of it. With respect to the legal fees, Ms. Carlson stated they had been hidden in the clean up charges. She further requested the property not be referred to as abandoned, but rather as vacant. Councilmember McCarty pointed out this matter did remain on the agenda and clarified that Mayor Bean may not of his own motion remove an item from the agenda. She noted that it was the duty of the Council to look at the issue of the safety of the property and pointed out the remaining issue had been tabled. Councilmember McCarty stated she had indicated to Ms. Carlson in a telephone conversation the Council would consider tabling the matter. Councilmember Benson explained the agenda is published and there are certain procedures which must be followed to table a matter which is noticed on the agenda. Councilmember McCarty expressed her opinion the legal fees should not be paid by the Shorewood taxpayers. Councilmember Benson did not feel the plan was to utilize sump pump charges as a penalty, but rather to encourage people to have the inspection done quickly. He was in agreement with Councilmember McCarty with respect to the legal fees, however he felt the sump pump charges for 1995 and 1996 should be abated. . . MEMORANDUM TO: FROM: DATE: RE: FILE NO. CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD. SHOREWOOD, MINNESOTA 55331-8927 · (612) 474-3236 Mayor-Elect Dahlberg Brad Nielsen 20 November 1996 Cabalka Dock Appeal - Background 405 (96.18) This is in response to your memorandum requesting background on the Cabalka dock matter. Per our conversation on Wednesday, it is my understanding that you already have the original staff report, dated 29 August 1996, and the various correspondence which have been considered by the Planning Commission and is under consideration by the City Council. As you may be aware this appeal is the result of neighborhood complaints, of which we have had four. Two of those have been from the same household. One of the complaints was anonymous. lam fairlycertain that the anonymous one was not a repeat from the two who were willing to identify themselves since those parties expressed no reluctance to identify themselves to us. Since we had a complaint on fIle I've made no written record of the anonymous complaint. Under the Data Privacy Act you will be privy to the identities of the complainants once you are sworn in as officers of the City. If Jim Hurm has not provided you with a copy of the Data Privacy Act, please let me know and I'll get you a copy. It has been the past policy of the various Councils under which I have worked to handle matters such as this on a complaint basis. Although we have had elected officials in the past who preferred a more aggressive "go out and find them" approach, the complaint basis has prevailed. The only exceptions to this are where violations are blatantly before us. Once a complaint has been received, the alleged violation is investigated and, if found to be accurate, the property owneris advised to correct it. Our standard notice of violation also advises the owner that he or she has the right to appeal to the City Council, either for additional time or to disagree with the staff s interpretation of the Code. Requests for additional time are routinely granted, particularly if the person has made a good faith effort to comply with the Code. A Residential Community on Lake Minnetonka's South Shore < Memorandum re: Cabalka Dock Complaint 22 November 1996 Page two We handle approximately 40 to 50 complaints annually. Most are resolved by the property owners upon notice. Occasionally the City has had to go in and correct violations (e.g. junk cleanup). In relatively rare cases we have had to actually pursue matters through the court system. As I mentioned to you this is not particularly-enjoyable part of our work. We end up in the middle between one party who, usually over time, has become angry enough about a situation to complain and another party who doesn't necessarily want to be told what to do on his own property; For this reason we obviously prefer the complaint approach rather than to seek out violations. We are far from having perfected a process for dealing with violations and look forward to any suggestions you may have on improving this aspect of our work. Hopefully this answers your questions. If you wish to discuss the Cabalka case further, I'd be happy to meet with you at any time. . cc: Mayor and City Council Jim Hurm Jerry O'Neill John Garfunkel ..=:." . '\ REGULAR CITY COUNCIL MINUTES NOVEMBER 25, 1996 - PAGE 2 McCarty moved, Stover seconded to approve the Motions on the Consent Agenda and to adopt the Resolutions therein: A. A Motion Adopting RESOLUTION NO. 96-105, itA Resolution Granting Deferment of Special Assessments for the 1996 Water Improvement Projects" B. A Motion Authorizing the Purchase of Computer Accessories for Use in Archiving Documents . C. A Motion Adopting RESOLUTION NO. 96-106, "A Resolution Accepting Petitions for the Levy of Watermain Trunk Charges and Special Assessments" Motion passed 5/0. . 4. MATTERS FROM THE FLOOR - None PLANNING 5. Planning Commissioner Turgeon reported on the Study Session held on November 19, 1996, (as detailed in the minutes of that meeting). A. A Motion to Direct Staff to Prepare Findings of Fact Regarding Appeal Interpretation of City Code Related to Non-conforming Docks Applicant: Location: James Cabalka 58XX Christmas Lake Road . Attorney Mark Kelly appeared on behalf of the Cabalka family. Mr. Kelly stated his belief the preponderance of the evidence continues to be that the Cabalka family owned the lot when the ordinance came into effect and that a dock was maintained at that location for 35 years. Mr. Kelly asked the Council to make findings to that effect. He further noted at the time Mr. Cabalka filed his appeal, the application included a request for a variance. Mr. Kelly stated that may be the only way to bring this matter to a conclusion so that the Cabalkas will not be called upon to defend themselves again in the future. Mayor Bean inquired as to whether the photographs taken subsequent to 1965 were conclusive relative to the existence of a dock on the property. Nielsen stated he was unable to detect any evidence of a dock and the photos were inconclusive. In addition, the photos were not clearly dated or sourced. Mayor Bean asked if a variance request had come before the Planning Commission. Nielsen explained the Planning Commission had addressed that issue and determined this request would require a use variance. He further explained in Minnesota a use variance cannot be granted. The Planning Commission also discussed the possibility of amending the ordinance. Mayor Bean asked Mr. Kelly if he was in agreement that a variance would be inappropriate. Mr. Kelly stated his recollection of the code specifically references the granting of variances in conjunction with docks and unbuildable parcels. Nielsen noted there had been changes made to the ordinance and it was his belief that provision was no longer a part of the ordinance. Attorney Keane confirmed this. REGULAR CITY COUNCIL MINUTES NOVEMBER 25, 1996 - PAGE 3 Councilmember Shaw asked if any inquiry had been made of the DNR. Nielsen noted he conferred with Ceil Strauss at the DNR who suggested the Wilson Library at the University which has a number of aerial photographs of the area as well as photos available from the Agricultural Stabilization and Conservation Service. Councilmember Shaw stated during the period from 1979 to 1981, the DNR took photos of Christmas Lake relative to the usage level of boats on the lake. Nielsen stated his belief those are the photos which Mr. Cabalka has and suggested submittal to the Council for review. Councilmember Stover questioned whose responsibility it would be to prove that a dock was or was not in existence since 1965. Attorney Keane explained that the applicant is asserting the right and on that basis, the burden is on the applicant to demonstrate the pre-existing right survives the nonconforming provisions. Councilmember Stover noted the letters received on this issue reference conflicting dates and asked how this issue can be judged given the conflicting information. Attorney Keane explained the Council sits as the body which hears appeals and, therefore, weighs the evidence and has the discretion to vote on a particular finding one way or the other. Councilmember Stover recalled the Planning Commission had inspected the Cabalka property relative to a subdivision and ask for a verification of the date that inspection was done. Councilmember Stover stated she has a clear recollection the dock was not in place at that time, however, she stated that inspection could have been pre or post dock season. In reviewing minutes of past Commission meetings, Nielsen verified the date of the inspection to have been June 6, 1981. Mayor Bean asked if there is a specific length of time for the dock to be in place during the season. Nielsen stated there is no designated length of time. Councilmember McCarty felt there were equal recollections on either side and there is nothing concrete to consider. Councilmember Shaw stated he would not be willing to affIrm Mr. Cabalka's rights without seeing the DNR photos. Mayor Bean noted the applicant has the right to appeal again if he is able to bring forth new evidence. Mayor Bean noted his agreement with Councilmember Shaw that there is no clear and convincing evidence to prove the existence of the dock. Nielsen suggested tabling the issue to allow further research into DNR aerial photos as described by Councilmember Shaw. Councilmember McCarty pointed out if the photos are dated 1979 or later, that would not prove that the dock has been in continuous use since 1965. Councilmember Stover suggested the Cabalkas submit have any other photographic evidence they may have. Mayor Bean noted from past discussions the survey did not reflect the dock, however, the Cabalkas indicated they had requested the survey not reflect the dock. He commented survey information could . not be relied upon and some type of visual confmnation of the dock would be necessary. Mayor Bean explained other requests very similar to this have been denied. Mr. Kelly stated the Council is requiring the Cabalkas to provide proof by way of aerial photographs, over which they had no control, that a dock was in existence during a specific period of time. He stated the evidence standard can be set ever higher, making it an impossible standard to meet. Mayor Bean noted there has been conflicting evidence which has come forth and complainants have come forward asking that the ordinance be upheld. Councilmember Stover stated there are other unbuildable lots where the Council has denied accessory uses. , . . . ... . . REGULAR CITY COUNCIL MINUTES NOVEMBER 25, 1996 - PAGE 4 Stover moved, Shaw seconded tabling the appeal interpretation of City Code regarding non-conforming docks, for James Cabalka, 58 XX Christmas Lake Road, until the December 16, 1996, City Council meeting to provide an opportunity for any further evidence to come before the City Council on or before that date. Motion passed 5/0. B . A Motion Directing Staff to Prepare Findings of Fact Regarding a Variance for Dock Use, Length and Setback Applicant: Location: Bob Mellett 4435 Enchanted Drive Mr. Mellett was in attendance. Mayor Bean asked if the three individual home owners would be able to have their own docks if they desired. Nielsen explained two of the lots would be allowed to have a dock and the third lot would possibly require a variance on the side yard setback. Councilmember Stover inquired about the allowed number of boats per dock/per property. Nielsen explained the LMCD would allow two boats as a matter of right with an allowance of up to four boats if it can be demonstrated all four boats are owned by the resident of the property. Councilmember Stover pointed out if one family had a dock, there could be four boats, however, under the current request, there will be only three. Councilmember Stover asked if the Declaration of Easement would be tied to the property or if it would stay with the residents. Attorney Keane explained the easement stays with the property. Councilmember Stover inquired how a purchaser of the property would be aware of this easement. Attorney Keane stated the Declaration of Easement is a recorded. The easement is a matter of public record and recorded as a part of each of the three parcels. Stover moved, McCarty seconded directing staff to prepare a Findings of Fact approving a variance for dock use, length and setback for Bob Mellett, 4435 Enchanted Drive. Motion passed 5/0. C . A Motion Directing Staff to Prepare Findings of Fact Regarding a Variance to Shoreland District Hardcover Requirements Applicant: Location: John Miller 21125 Minnetonka Boulevard Mr. Miller was not in attendance. Mayor Bean asked if the applicant had approached the residents on Femcroft relative to his request. Nielsen noted he had, however that property owner is not interested in selling any of her property. Mayor Bean asked if there would be another house on Lots 2 and 3. Nielsen stated there had been in the past. Mayor Bean also questioned the distance of the driveway to Ferncroft Drive. Nielsen stated it is approximately 120 feet and the minimum distance between a corner and a driveway is 40 feet. Councilmember Stover inquired with respect to erosion control and whether the Planning Commission was satisfied with the method to be used and if it will be effective. Nielsen explained that in addition to erosion fencing, there are recommendations for maintaining the disturbed slope. Councilrnember Stover inquired as to the effect on hardcover if the driveway was not paved. Nielsen stated whether or not the drive is paved, it would be considered impervious. REGULAR CITY COUNCIL MINUTES DECEMBER 16, 1996 - PAGE 5 City Attorney Martin commented the State of Minnesota has provided for statutory provisions which allow the State to transfer out to subdivisions of the state at no cost, land which has been tax forfeited. He stated the City Attorney is attempting to determine whether a sale of part of the parcel for right-of-way purposes is a violation of that use restriction. Mayor Bean inquired as to reforestation to the extent trees are removed from the area. Brown stated a plan could be brought back before the Council. Mayor Bean stated perhaps through the use of the revenue funds some of the trees could be put in an area such as Freeman Park. Nielsen pointed out there is no tree replacement required for public road projects. Councilmember Benson commented there will be a higher amount of noise in the area due to the removal of the trees. He felt a resource is being lost which has been a benefit to all of the residents in the area. Councilmember McCarty stated her agreement and noted aesthetics would be a consideration as well. She stated her preference the reforestation take place in the area where the trees are removed. . Shaw moved, McCarty seconded adopting RESOLUTION NO. 96-121, "A Resolution Accepting MNDOT's Proposal for Right-of-Way Acquisition" Motion passed 4/0. 7 . PARKS - Report by Representative A. Report on November 26, 1996 Park Commission Meeting Councilmember McCarty reported on the matters considered and actions taken at the November 26, 1996 meeting of the Park Commission (as detailed in the minutes of that meeting). B . Consideration of a Motion Approving the Naming of the Road through Freeman Park "Reutiman Lane" Mayor Bean felt this to be an excellent idea and noted it will not disrupt any other citizens. Benson moved, McCarty seconded approving the naming of the road through Freeman Park "Reutiman Lane". Motion passed 4/0. . 8. PLANNING - Report by Representative Commissioner Turgeon noted the next meeting of the Planning Commission to be Tuesday, December 17, 1996, and therefore, there was no report to be made at this time. A . A Motion to Direct Staff to Prepare Findings of Fact Regarding an Appeal Interpretation of City Code Related to Non-conforming Docks Applicant: James Cabalka Location: 58XX Christmas Lake Road Mr. Mark Kelly, attorney for the Cabalkas, provided photographs which were prepared in conjunction with the Christmas Lake access and stated to his knowledge they were taken in 1985. Mr. Kelly is requesting the matter be tabled until sometime in June of 1997 to allow the Cabalkas an opportunity to have the material in the dock analyzed to establish a time frame for the existence of the dock. Mayor Bean commented this would not necessarily prove the dock had been in place in this particular area and in continuous use for a specific period of time. c REGULAR CITY COUNCIL MINUTES DECEMBER 16, 1996 - PAGE 6 Mayor Bean noted a letter dated December 12 had been received from Gerri Kuester, 5885 Christmas Lake Road, disputing the dock has been present and in continuous use. In addition, a letter was received from Mike Pierro, 5880 Christmas Lake Road, who also takes issue with the existence of the dock. Mayor Bean responded to Mr. Kelly's December 12 letter relative to why the City has disregarded an alleged code violation for in excess of 12 years. He explained it has been the City's consistent practice to not seek out violations of housing and zoning codes, but to respond when citizen complaints are received. He stated there has been consistent application of the ordinances in this case and many similar cases. Councilmember Shaw stated he is not convinced all of the material available and relevant to this issue has been presented. He felt if this had been presented, the Council could make a definite decision. Councilmember Shaw stated the burden of proof to be upon the applicant. He commented boat usage studies of Christmas Lake had been made by the DNR by way of aerial photos. Mayor Bean commented on the requirement of residents to prove what they did or did not do with their property 20 years ago. In the case of a grandfathered condition, Mayor Bean felt it would . behoove the property owner to take appropriate steps and actions to preserve that grandfathering. He pointed out the ordinance provides that the dock must have been in continuous, uninterrupted use to preserve the grandfathering. He felt the burden to be on the applicant to preserve the grandfathering and to provide the appropriate documentation. Councilmember McCarty did not feel all of the necessary documentation had been provided, however, the Council has spent a considerable amount of time considering this matter and did request additional information on this issue. She questioned rumors that the land has been deeded to someone else. Mr. Kelly stated the property remains in the Cabalka family. He further commented the aerial photos which had been presented for review are such that it would be very difficult to depict a dock of any sort. He further commented it would be unreasonable for the Cabalkas to have known years ago they would need to be able to prove grandfathering at this time. Mr. Kelly was not in agreement that the burden of proof is upon the Cabalkas and stated the . Cabalka family will pursue this matter further if the Council rejects the request of the applicant. . Mayor Bean commented the Council has incomplete evidence as to the continued use of the dock in addition to conflicting testimony as to its existence throughout the specific time frame. He stated citizen complaints have been presented to the Council in addition to citizens commenting on behalf of the Cabalka family who recall the presence of a dock. There is no evidence to determine which group of citizens are mistaken in their memories. Bean moved, McCarty seconded directing Staff to prepare a Findings of Fact denying the appeal interpretation of City Code related to nonconforming docks for James Cabalka, 58XX Christmas Lake Road. Motion passed 3/0. (Councilmember Benson abstained.) Councilmember Benson stated comments had been made this is a personal vendetta against the Cabalkas. He pointed out he has not discussed this with the Council at any time. Councilmember Benson noted he has lived along Christmas Lake Road all of his life. He did not recall a dock in this area. He stated he did not become involved in the vote. on this issue due to the affect it could have on his own property. REGULAR CITY COUNCIL MINUTES DECEMBER 16, 1996 - PAGE 2 Benson moved, McCarty seconded to approve the Motions on the Consent Agenda and to adopt the Resolutions therein: A Motion Authorizing the Purchase of Planning/Engineering Software A. B. C. D. E. . F. A Motion Adopting RESOLUTION NO. 96-113, "A Resolution Approving 1997 Licenses for Refuse Haulers" A Motion Adopting RESOLUTION NO. 96-114, "A Resolution Approving 1997 Licenses for Tree Trimmers" A Motion Adopting RESOLUTION NO. 96-115, "A Resolution Approving Manitou Woods Final Plat" A Motion Adopting RESOLUTION NO. 96-116, "A Resolution Accepting Improvements of Waterford IV for David Carlson Companies, Waterford Twinhomes" A Motion to Approve Extension of a Deadline to Submit Final Plat - Larson Estates for Carl Zinn on Behalf of Stephen Larson, 20435 Radisson Road G. A Motion Adopting RESOLUTION NO. 96-117, "A Resolution Approving a Variance for Dock Use, Length and Setback for Bob Mellett, 4435 Enchanted Drive" H. A Motion Adopting RESOLUTION NO. 96-118, "A Resolution Approving a Variance to Shoreland District Hardcover Requirements for John Miller, 21125 Minnetonka Boulevard" I . A Motion Approving a Contract for Maintenance of SE Well . J. K. A Motion Adopting RESOLUTION NO. 96-119, "A Resolution Approving a Transfer of Funds" A Motion to Approve the City Administrator's Employment Contract L. A Motion Adopting RESOLUTION NO. 96-120, "A Resolution Amending the Health Care Reimbursement Program Portion of the Shorewood Cafeteria Program" M. A Motion Approving a Sign Permit - Marsh Pointe for Lundgren Brothers Construction, Marsh Pointe (Smith town Road) Motion passed 4/0. 4. MATTERS FROM THE FLOOR John Schmitt, 20725 Radisson Road, stated he has lived on Christmas Lake since 1960 and spoke in favor of Cabalkas and felt a variance should be granted allowing a dock on their property. KELLY LAW OFFICES Established 1948 351 SECOND STREET EXCELSIOR. MINNESOTA 55331 MARK W. KELI.Y WII.I.IAM F. KELI.Y (1922-1995) (612) 474-5977 FAX 474-9575 January 3, 1997 . Mayor Elect Tom Dahlberg and Council Members Elect Jerry O'Niell, John Garfunkel and Council Members Krist! Stover, Jennifer McCarty City of Shorewood 5755 Country Club Road Shorewood, MN 55331 Re: CabaZka Dock Dear Mayor Dahlberg and Council Members: . Presently, before the Shorewood City Council. is the acceptance of fIndings concluding that the CabalkaJamily hasJaUed to prove that it has a grandfathered right to maintain a dock on a non-buildable Christmas Lake Road lot. For reasons set out below, such a conclusion Is unjustlfted. Because three of the five current City Council Members are strangers to this discussion, a summary of the information supporting an alternate finding. to-wit: that the' Cabalka family holds rights which predate the 1965 ordinance are set forth below. In 1954, the Cabalkas owned four lots on Christmas Lake Road. They sold off two and kept the third as a site for their home. The fourth abutted this homestead site and was unbuUdable because of its size. It is this last lot that the family retains to this day. (See Exhibit A.) Copies of tax statements payable for 1958 illustrate that the County Treasurer maintained the homestead and non-buildable lot as separate taxable units. The Cabalkas paid taxes of$15.28in 1958 assessed to the non-buildable lakeshore lot. (See Exhibit B.) Unlike today, the shoreline was in 1954 a marsh thick With cattails; and the bay was fIlled With lUypads. (See Exhibit C.) KELLY LAW OFFICES -2- . The quality and character of docks, of that time, was typically crude in comparison to store-bought docks employed today. Exhibit D is an excerpt from a book on ornithology of the Christmas Lake area published by then Christmas Lake Road resident DuBois. It illustrates the character of the dock which the Cabalka family malntain~d during much of its ownership of the property. In the late 1950's, the property became host to a small dock. This later accommodated a row boat With a weed-cutting machine that was commonly owned by siX indiViduals along Christmas Lake Road including Lars Anderson. Bill Maddy, and Robert Noren. all of whom-have proVided letters confirming the longeVity of the Cabalka dock use (see Exhibit E). Other owners included Roy Martin, William F. Kelly and James Cabalka. Exhibit F describes the weed-cutter the partnership used to cut naVigation pathways through the otherwise unnaVigable Iilypad filled bay. The non-buildable Cabalkalot proVided the perfect location for the storage of this weed-cutter which continued to be used by the partnership well into the 1970's. . Letters from Billy L. Maddy, George and Kay Noren and Lars Anderson verify that the dock on the non-buildable lot predates the adoption of the ordinance by the City of Shorewood in 1965. Additional letters from Mary and John Schmitt. Dr. Lee Hermann, and John K. Raymond confrrm that the dock in question was in use in the 1950's. Oblique aerial photos from 1985 (earlier proVided to the City) and a letter from Ann and Jerry Hillius confrrm that the dock existed in 1985 when the Cabalkas sold their homestead lot. The City has inquired whether or not aerial photographs might not be available to show the existence of the dock at earlier times. Exhibit G shows samples of the photographs the City has to date inspected. The scale (one inch equals 800 feet) is too small to show any docks. much less homes in the City of Shorewood. In 1981, the Cabalka family pursued a simple subdiVision of their homestead lot to create a second building site on the preViously non-buildable lot. A topographic survey of the homestead lot (third lot) submitted at that time does not illustrate the dock in question. but as explamed by AI Rehder, president of Israelson and Associates (who prepared the survey), the survey was not intended to determine boundaries and the illustration prepared does not negate the presence of the dock at that time. (See Exhibit H.) The Cabalka family has continued to make use of the dock on Christmas Lake for over forty years. The dock is better constructed than in the past. largely out of necessity to accommodate the mobility needs of Betty Cabalka. a senior citizen, and Elizabeth Cabalka who suffers from disabilities related to congenital hip KELLY LAW OFFICES -3- problems. Some of the original dock can be found beneath the modem dock. The property is neatly maintained and like other docks along thatstretch of Christmas Lake Road. it is independent of any identifIable related homestead. . The Cabalka family takes issue With the position of the City of Shorewood that it is the family's burden to prove their right to continued use of their property for docking on Christmas Lake. After forty years of use (a use predating the ordinance) such a demand is unreasonable. They disagree With the preVious Council's recommendation that this Council adopt findings of fact that the Cabalkas have not "proven" their right to maintain a dock on the subject property. To the contrary, they believe the materials set forth hereWith adequately establish. through third parties eVidence. that the use of the subject property as a lake access lot predates the adoption of the ordinance in question. Consequently. the . Cabalka family's rights to maintain a dock on the property are under law "grandfathered". They believe it is wrong for the City to expend its resources to attack a life-long property owner's exercise of property rights. In the course of this proceeding. the City Council has required evermore proof and. in particular. aerial photographs which because of their limited resolution can never demonstrate the existence of the dock in question. The Cabalkas cannot produce more and more proof of actiVities thirty-two years ago. The Cabalkas ask that this Council make a finding that their use of the property for docking predates the adoption of the ordinance and that their right to continued use of the property for docking purposes is "grandfathered" and should not be challenged by the City of Shorewood. As always, the Cabalka family stands ready to answer your questions and looks . forward to your deliberations. Sincerely. 7-~J~-"~ Mark W. kelly ./ Attorney for the Cabalka Fam1ly MWK/tas Attachments . .'. .. .. . - . - .:; .:' -. .....- . . . .' .. ..... . . . CHRISTMAS LAKE '54 D{H!BIT A :tG> .. IT1 -f > ::0 X > -I ~ ~ ~ ~ .. '" ~fT1~ A " .r " ZO> 1'1. " ::t:/-I- ::!! P1 Zl>o VI a)ro oen " (n /-I-FJ. 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" I I I I I " I 15:20 , , I , I I I I N OF REG T A X 70 III m :J \n R A T E IL I.L o 0: 0:( hi l- I- o z o [J . ; t400 PLAT 4855 PARCEL . 26~8- 1 5!~r8 ----------------bliT"")-Ial..:.:- "--xeRu-L- FULL T~X DISTRICT DO NOT DETACH STUBS. TAKES CANNOT BE PAID WITHOUT THIS COMPLETE FORM --.-!!:..:rB"'-!?__P.':t9.!"E~:!Y 1-!~_!!.~E~tI SO!-D P,l:-~~.!,!.onW^nD THl~~!.E..t'!.~_.!~."!~ NEW OWNER. OR MARK BILl. SOLO AND RETURN IT IMMEOlATELY TO TillS aFnCE, MAKE CHECKS PAYABLE TO GEO'. A. TOTTEN, JR. HENNEPIN COUNTY TREASURER FIRST INSTALLMENT }I~C'( 0 ~ 1 4 8 ~1,\Y 3 1. <;n 7.h4.'IN [~I ~-"J-~- 0 e::C~:O":TALLM"TO. ~~:':M:' . . SNAPSHOTS ON THIS PAGE SHOW THE PRIMITIVE CONDITION OF LAND PURCHASED BY BETTY AND JIM CABALKA FROM MRS, HOPWOOD IN 1954. THE CABALKAS CLEARED THE LAND OF BRUSH THEMSELVES AND HAD IT SURVEYED INTO FOUR PARCELS. THEY CUT DOWN OAK TREES ON A HOMESITE USING A TWO PERSON HANDSAW AND BEGAN BUILDING THEIR HOME IN 1955, . . EXHIBIT C BY JUNE THIRD ONE YEAR eiaht ... 'wi/ere nestina in au'! little Christmas .... ,. rr . Qlrreren-c Lake kinds'of birds m2rsh. -- -. n~; ~-r n :~ - ~ BILLY L. MADDY 5330 Beacon Hill Road · Box 220 Minnetonka, ~ 55345 (612) 988-7786 FILE GDPI /.' ~'.j .. /'. ..~'. ,... "-- ...-" ~~. -j... ~ ..' . August 31, 1996 TO: Mr. Brad Neilson, City Planner City of Shorewood Dear Mr. Neilson: A' former neighbor, Mr. James Cabalka, has asked me to write and corroborate some events of some of our years at Christmas Lake. The bay Mr. Cabalka and I were on is shallow (maybe because this is the corner with the channel that carries the lake's overflow to Lake Minnetonka). Silt and other debris is probably carried into and filled up this area of the lake. This bay, being shallow, was an invitation for aquatic nuisance weeds to thrive. . We tried many things to try and salvage weed-free areas to realize Some water recreational value from the lake. At one Point, we Went together .and hired a commercial aquatic weed harvester. This commercfal weed harvester told us then that we neighbors WOuld have to keep at it or the weeds Would grow . right baCk. At this POint, Mr. Cabalka was instru=~ntal in organ- izing neighbors to purchase a Jari underwater weed cutter. Dr. Noren, a neighbor and co-owner of the cutter, donated a boat that the equipment COuld be permanently installed on for more convenient Use. The donated boat was moved around from neighbor to neighbor as needed to help contrOL the Weeds. This boat and the weedcutter caused a need for extra dOCkage or a second dOCk. I recall that Mr. Cabalka had an extra dock in --...." those years. ....-.. - - ..~ Someone recalled that it was 1959 when we bought the Jari Yeed- -----...---."- ...". .....~-_.- _...... cutter. These Yere the years OUr families were growing up and neeced boats, canoes, Ski boats, fishing boats, paddl~ boats, etc.--all requiring dOCkage. It is not feasible to make a dock any longer than 50 ft. So, to accommodate the extra watercraft, I recall Mr. Cabalka had two dOCks. I added another section to my dOck to form an "L". A~other guy that shOUld recall Cabalka'S second dock shOuld be Dr. Noren's middle Son George. Young George 2nd! were asked EXHIBIT E page 2 August 3l, 1996 TO: Mr. Brad Neilson to do some aquatic weed mowing one afternoon. We walked down to Cabalka's shore to prepare the equipment for use. The veedcutter was top heavy and caused the boat to want to tip. If one got careless and did not keep the rig. properly trimmed, the boat. would tip over. George and I got careless; andover we vent.. So George and I got to view Cabalka's second dock from a unique IOwa ter ' sedge." perspective t . Very truly yours, ~ :;:--- Billy L. Maddy _ 988-7786 . .' A SlNGlE PASS WITH THE AIR-lEe WEED MOWER MOWS A SWATH 3% FEET WIDE DOWN TO 3% FEET DEEP One of the most miserable problems that bedevil owners of lake and river shore areas is the tangling growth of aquatic weeds. But despair no fanger. A real break- through is the development of the Air-Lee Under Water Weed Mowing Machine. Quickly and easily attached to your boat it will. at speeds ranging from 3 to 6 miles per hour. cut a swath 3 ~ reet wide and adjustable down to 3 ~ feet desp. Even the toughest most entangling weeds give way to this ruthless. always sharp mowing machine. Powered by a 3 H.P. engine it easily provides the reciprocal motion to the high speed steel blades. Carries enough ruel rar twa hours of steady operation. Removable and adjustable brackets make it a simple mat:er ta arrach ta a 15 foot or longer boat. Tne st~ndard mounting brackets will fit boats 56 inches wide or less at a :Joint abot.;t 4 feet aft of the bow. On John boats this IS acc:.;t 3 Tee: af~ cf the bow. Working as a team with the ,c.,r-~ec Raka. it IS yeur comolece answer to aGuatic '~/es.: :cl~(,.;::c-:-,. RAKES 8 FEET IN ONE PASS The Air-Lec Weed Rake usually is operated from a seoarate boat but can be mounted in a raised position ~bove the mower while the mower is in operation. The rake can then be lowered to handle the follow up jab of gathering the shorn weeds. AIR-LEe Industries, Inc. -~~".,!:) ""-~r.'r.""'-;-:" l"""::'/7~,',,'1 OUJJ..J"-iVi"'1 r#'-!_'~'_~~ _ ..:...J1..f~"""J'--'IJ 3:lO6 COMMERCIAL Ave~UE . M~OISON. WISCONSt."I s.:;714 = .... ...;;... . ~ .:- --'7 -..~ '-'.=--'~~~~;~:~~~.~f:'~' ~:.";~~ - ~~ . .. . . '" ~.r~}~' .;.~} '.:. . .. 0 .tA~ ~(; '4f(p9 . .~;~~.~. :':~.~ . ~ '. '0';'::'1.', .' .... . 57~o ~~I~-+-'- '") L.~~.:r '.,.~, . ~'i""cdcc4" HJJ .r...~~;,:. . ,. I~ r..dk,~ .#t ~ .~ 7~/S f.f::t1",. is /..", ::t''''ff"M- -~ -r~ e c~ "Co 11:\.:t + ~ ~I. '1 j:S- -: ~t.<4I&"''''''--e...~ ~ e? ~ ~ 0 e 0...... -fl.terll'" \f~~i.c'''''-{ '\ . ,&:-'<. G:~i:"'IS+--W 'So t< 're:=>. 0 We \...vd\J~ /1 r..&..i!!...I.'. a.. t t::!?~ t-f r-::"$e ~~ r-rr::S 6""" ~ ~ fer k z. dZ-t4A k.J...J~ +~-<-.p .-t~ e o 1& f tc &:;. +e? '..he ~+ Tlc~ let.ke - . . 0 ~i~4 ~ fl-e,_~ t..V ~ lA.d c.I ~ ~".::s & f.r -e' u." ,.~ fc - -( / ~ 2) ::rf1f'CdJ ~..s ~ "'t'"" ~ K '"'--c:. c!(. + .0 . -tk~ .:::t=55cc;..l + '':: ~ ~ "" ,-I ~ (J ~~ r S . Wd( r.-v1,., ~ f<lll :..... d . -Fe:: fi~;;r4.;oole ;fs. ,o....c._l.~:s ~ 5. k:"&.\,c.<.I" ;i t:::'V4,. -I'-<.~ Fcfs-l- ~ - ~ r.,..e~~-<. of- F jl.&'f'~r-+~ l;j" c.....!. . d% ..-(,. c:l{ c.,L lo(. 4" .... . ~ '-'Co ~ . rJ.p . , ~c~e w~ 0- e-~ . 1.-.. D ......n \ ~...:.rf'-~+ ~ -t It; ~ . .' . . ;' . . '- . c.;" ~.. ( &: a S t:::.~"" .;. I'<....c. -cd) (...L ~ ~ c+ -r ~e. == p r: . p.oct(.-~~ I""~k+,! ~~ ~:. 10 j _ ~~~.~ C:="'1.. ~ . d ~ -e' 0/'-:, 4JI- -l _:. ':'. ';"".. _~ -+t-~..,. ((c.Ja....~ ~ e . '., ."'" . t' . . .;~ (;~::~;i~~ We - (5. of <crT --it..., of 6' '-' <: "I: --t k~ C'.. b~ I ~ ~ 's '. --. .. ~ ". , , ... ..~. "--"':::~7 ~t:,_04c:!'Q- -fY"S" C''''C:f'c''~'''''t -tl.4",,~ +"'.s . "'=-. -- \-l ,,--- '. ;"\ ~ .. ... . .' . '~.':.~.J; .' ,""--,,,k.+ -a(,."J (I "(,,,+ r7d~ S .. +0 ~-<J ,.,~. . 1 4- U \ ' .;..--.. ,~ I:..~ :". .: ;!:.:. '","'. \. ~ """_"'::7Dt.;r:7 -< L . :-.-_ . q - \ <..J I '-<. C-- :J ('.: /" _-'- _p , K'.J "'( AJ e to- Q -"\.. 1>-" ~O'" .... -J .......-~ ~-- -<-...c.-~ ~ - ~-.(l ~ -t~ . ^ r-~$( I ~ -c..d . .' ..( ~~ '. .,~: l . :..?'. . ~..~. ~: .... ,. :,~.." ~...:t ~..~.~. -j' ~ ).. " B:-ad Nielson Sep'i:. 6, 19'~6 Re" Dock on Jim Cabalka's p:-operty We have been residents of Christmas Lake for 50 years. Having walked along Christmas Lake Road and boated on the lake fo:- all these years, we agree with Jim that his dock has been located at its present. location since before 1960. )i~:;::;:')'r/ ~ rJ.....ir Ma:-y and John Schmitt . 20725 Radisson Rd. Shor"ewood, Mn. 474 9324 . .~./V. JJ- /9 9~ . .. ~~" L '. ~ JZ-7"L#V -~ -~~ Zv- (~~ . ~Jff.,.1'" ~ ~~ ~~ ~~~:) L-4J.~~ ~~ '. me>' Q r;~~~_~-tJ=a -(j _~/. I f /P JI'l/ I ;- i . ~r-:'-~-~--~ ~;- ~..-~-r; #~/--r-zL~~ ~4 ~-7Li-r~ ~ ----~~j~~~ _____...__... ~LA.--. ~ - ./..... ""-~ f/ -~-~~-c.~~~--..-- . i .. ~ J ! r :t . i ~ i ., He has always been environmentally concerned about lake quality. :4;:~ Dr. Lee Hermann 2!)7.:S5 F':adi sson .... . ~a. Shorelo'Jood, Mn. 474-93!~6 . . .. . t;'f' . .. 0 ~(tY~~VI~1ilI1 ~~~~~~~'fA~~IfJ~ ;7~SEP23~96 .~1 l~~ l;}~u;ttr Jkz!f~v~1!I .t~t4f . By. /__. -__, &X, 1-;1. /t.~LJ?sz Q - II''{, t!h~fh/ ~j ~ '- ~ .~#-f A~ouL Mo.@~ ~ 0 y~ .~. b . [{:r.' ~ d.. ~~1'rk( {J1iH1d Cu)'<,~ 'Il-r!#t . _.' I/ktL~~ tN1't/v-IM kL!~'. ~_f2~~ 1~Fl ~!VJddcm ?{0-~. U;;&~ru a~~ z:{, ~ ce f7';CU~ C,,-/!1''L{LCXt1I.kv I~ (J~~.~ a~tta7f2. ve<J/..~ ... I' t! - 'I .' '" /.'1 , .. fOl '1-~O c( ~r;{fia.jJ, c~~)'i~.z.. as of? JJ b~ c( .itf\J?ntuX.. 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I I . -.. ; /' i' , ~ , / I ~; September 9, 1996 Tun & Betty Cabalka 15695 Sussex: Drive Minnetonka, lvIN" 55345 Dear Tun & Betty: RE: 5885 Christmas Lake Road property . Ann and I are writing to offer our perspective regarding the purchase of your property at 5885 Christmas Lake Road, Shorewood, MN. . . - . . . Initially, we were shown the property twice by our realtor. On our third visit, while you were working in the yard, we were introduced. You asked if we had any questions, and at that time you gave us a lot of information regarding the history of the property and of the house. You were very sincere and explained how the lot size had been larger, but you had recently gone through the process and sub-divided it. It was your plan to o'INn a small piece oflakeshore which your family could use. You pointed to the property and explained it would accommodate a couple of parked cars and a dock. You also said you owned a rowboat which was tied to the dock that day. Ann and I felt 170+ feet ofIakeshore was substantial, and we were not concerned about, nor in a position to question the subdivision of property. If there were problems, we would certainly discover it at closing. At the time of our closing, all the documents reflected the new size of property, so it certainly showed you had gone through the proper channels and the city of Shorewood had certified your request. In our four years as owners, we found you and your family to be delightful weekend neighbors. Considering I like a tidy yard, it was certainly noticed that everyone in your family kept your property clean and spotless. Also your dock waS not in our direct view, but behind some reeds, so we didn't have any questions or complaints regarding aesthetics. We even had a mutual agreement, that I would mow your property, if you helped open a boat path through the weeds around- our dock. That happened for a couple of years, until I decided to use Lake Restoration to chemically treat the problem. . It has been nearly seven years since we moved out, but I can only assume that you and your family's habits have not changed regarding your care for your property. Sincerely, C)~ fl~ Ann and Jerry Hillius SPECIFICATIONS Cutting frame .is "U" shaped. cutting 42 inches vertically and 42 inches horizontally. Power source is 3 HP. engine with fuel storage permitting two hours of steady operation. Weight of mower, including attaching frame is 205 Ibs. Weight of rake: 40 Ibs. EXHIBIT r TO ffiiOM IT MAY CONCERN THE FOLLOWING COMMENTS PERTAIN TO AERIAL MAPS OF CHRISTMAS LAKE AREA IN THE UNIVERSITY OF MIN~mSOTA WILSON LIBRARY BORCHERT MAP SECTION. MOST OF THE MAPS ARE PROVIDED BY ~~ HURD AERIAL PHOTO SERVICE. 1960 (SEE ATTACHED SECTION OF SHEET 4 OF 4 TAKEN AT AN ALTITUDE OF 9,600 FEET ON MAY 5, 1960.) THIS IS A MOSAIC PHOTO ~TD . NO DOCKS ARE VISIBLE ON THE LAKES IN THIS PHOTO. THE CABALKA DOCK AND ALL OTHER DOCKS IN EXISTENCE ON ANY LAKES SHOWN HERE CANNOT BE SEEN AT THAT ALTITUDE. MAP BOOK NUMBER: 10-B 1962 (SEE ATTAC&~D SECTION OF MAP SHEET #5 OF 12 SHEETS FOR 1962) ALL FLIGHTS WERE TAKEN AT ALTITUDE 4,800 FEET. THIS PHOTO WAS TAKEN ON MAY 3. 1962. ICE COVERED MOST OF CHRISTMAS LAKE ON THAT DATE. NO DOCKS ~2~ VISIBLE ON THE ICE-COVERED LAKE AND THE CABALKA DOCK, NOT UNLIKE ALL THE OTHER DOCKS, C~10T BE SEEN. MAP BOOK 10-B . 1964 (MAP MISSING) 1965 (MAP MISSING) 1967 (SEE ~~2 SHEET PAGE 30 DESRIBED AS S-35-117-23N-1967) THIS PHOTO NAS TAF.EN DURIHG THE "LEAF OFF" TIME WHEN MOST DOCKS WERE OUT OF THE WATER, AS WAS THE CAB.'\.LKA DOCK. SNOW WAS ON THE GROUND AND THE ENTIRE WEST SHORELINE' OF THE M.."-UT LAKE HAS NO DOCKS SHOWN EXCEPT THE SOUTHWEST COffi{[R WHERE KROGSTAD FAMILY DOCK IS SHOWN NEAR THE MILES LORD PROPERTY. THE WEST SHALLOW BAY DOES HAVE A FEW DOCKS . THAT OWNERS HAD RISKED LEAVING IN THE WATER FOR WINTER MONTHS. 1971 (SEE MAP SHEET #2 OF 6 FOR THE YEAR 1971. THIS PHOTO WAS A MOSAIC OF PHOTOS TAKEN AT AN ALTITUDE OF 4,800 FEET. NO DOCKS ARE SEEN ANYWHERE ON CHRISTMAS LAKE AND THE CABALKA DOCK, NOT UNLIKE MOST OTHERS, IS NOT VISIBLE. MAP BOOK 10-B .J .'\J.\fES L. CABALK."- (l_J :ypr~iT IT ..:::o..;a-~ilti~ I . .5Ht:E-r If 01=' q. .. . "'l "-~. I . "~\'.wr.~ . ::.-:-_ .. -. _..J r:!'~--~. .... "t.. .~ I erGO I .--. HENNEPIN COUNTY I PHOTOGRA? F"'C~L HY sC' L- _ .. L;:NGi" -:. ,-!..IGi-i- rt .. '{ . HEiGHT , -, 'NG "'01 ~ .1F'!..::i'::O IN. 3CO' 12" 9600' 5-15-60 \. _....... ' u... :'0/.: , . y- ..".. . .:. ~ .1 .j...;:.'0::~~i~~,~.:~' DEPT OF HWYS. I ES AREA 1"=800' 6" 4800' 5'3-1962 - .. ! I . . ... ~~ ~ r '1 if i~ .~ J . t; ~. ~ ~. ~ , ~ .. i ,\ :i L .,,~ +\~ {Ii'"!! i' ~ I t [ I i ! r I -:.::- t N 1 .~ j ....._:: S - '- \':. '.: ~z.-...' r..- G ~~':. s .....;"... 2.,:10 2?J,kaer & .9l.ssociates) Inc. CIVIL ENGINEERS & LAND SURVCYORS November 18, 1396 To Whom It May Concern: On or around June 8, 1981 che firm of Israelson & Associates was hired to provide a topographic su-~ey of the current site grades and visible improvements. This included locating the shoreline, existing house, trees and other improvements in addition to site elevations. . In regards to the second dock, it may have been laying down or submerged in the vegetation and lake. The survey crew would not have searched the. cattails or shoreline vegetation looking for another dock. Israelson and Associates was not hired to prepare a boundary surveyor det:ermine the property line locations. The survey notes that ":rhis is not a boundary survey", and that the boundary dimensions were scaled and not verified in the field. On subsequent dates we were asked to add additional information to ~lo].e drawing. Please feel free to give me a call if you have any questions. Respectfully, . REEDER & ASSOC~TES, ~C. ~~~--- AI Rehder, President, EXHIBIT t-I 3440 Federal Drive, Suite 240. Eagan. Minnesota 55122. (612) 452.5051 . FAX (612) 452-9797 CITY COUNCIL REGULAR MEETING MINUTES JANUARY 13, 1997 - PAGE 3 . Tim Keane, Larkin, Hoffman, Daly & Lindgren, appeared to address the Council. Mr. Keane explained he has been the City Attorney for Shorewood since 1991. He thanked the Council for the opportunity he was given to serve the community and stated he has enjoyed his service. He commented the City will be well served by City Attorney John B. Dean. Kirk Rosenberger, 20960 Ivy Lane, congratulated the Council on their election. He stated he had raised questions during the campaign which have not been answered to date. Mr. Rosenberger asked what variance was specifically given to the developer at Watten Ponds. Mayor Dahlberg stated that because this project was a P.U.D., the arrangement was flexible. He noted there had been controversy as to whether the Comprehensive Plan was dominant in that situation versus the zoning laws. Mr. Rosenberger pointed out there had been no variance given. Mr. Rosenberger also inquired where high density is being promoted in Shorewood. Councilmember O'Neill stated high density is a subjective term and a number of people felt that the number ofP.U.D.'s and the number of projects which were built were high density. Mr. Rosenberger inquired as to any conflict of interest between Mr. Watten and anyone in the community. Attorney Dean explained that Matters from the Floor is a time for members of the public to state matters to the Council which would ordinarily result in a follow up at a later date. Mayor Dahlberg commented that Mr. Rosenberger was discussing political issues which arose during the campaign. Mr. Rosenberger requested a written response for the questions he raised and went on to inquire as to any special considerations which are given to developers in Shorewood. He explained developers were subject to strict conservation easements, tree preservation requirements more stringent than those which apply to current Shorewood residents, wetland setbacks more stringent than the Minnehaha Creek Watershed District, and assessments for water which are twice the amount the current Shorewood residents are assessed. Mr. Rosenberger noted during the course of the campaign there was considerable talk relative to litigation in which the City is currently involved. He asked if Mr. and Mrs. Johnson and Mr. and Mrs. Bache made financial contributions to the Preservation Team. Mayor Dahlberg stated financial contributions by the Johnsons and the Baches were refused. Mr. Rosenberger felt since they were listed as a part of the campaign committee, there is a perception of a clear conflict of interest. He felt Mayor Dahlberg should excuse himself from any discussion relative to those matters of litigation. . 6. PLANNING - Report by Representative Commissioner Turgeon congratulated the Council on their first meeting and wished them the best. She reported on the matters considered and actions taken at the January 7, 1997, meeting of the Planning Commission (as detailed in the minutes of that meeting). A Motion to Adopt a Resolution Denying an Appeal Interpretation of City Code Related to Non-conforming Docks Applicant: James Cabalka Location: 58XX Christmas Lake Road Councilmember O'Neill asked the applicant for input relative to postponing consideration of this matter. Mark Kelly, Attorney for the Cabalkas, asked this matter be considered in March or some later date since the Cabalkas will be out of town, however, he would like it brought to a conclusion. Mayor Dahlberg commented he would like to have the opportunity to discuss this matter in a work session prior to making a decision. CITY COUNCIL REGULAR MEETING MINUTES JANUARY 13, 1997 - PAGE 4 Councilmember McCarty asked Attorney Dean if there is a conflict of interest in the event a Councilmember had had contact with the Cabalkas and their attorney prior to being sworn in and if it would be appropriate for that Councilmember to excuse himself. City Attorney Dean did not feel there was a conflict which would disqualify that individual from consideration of this matter. Mayor Dahlberg acknowledged that prior to being sworn in he had contact with Mr. Cabalka relative to this matter as did Councilmember O'Neill. Councilmember McCarty inquired if the Councilmember should excuse himself in the event he had made up his mind relative to this matter beforehand and had possibly given advice to the Cabalkas' attorney. Attorney Dean did not feel there was a conflict of interest given the circumstances. Mayor Dahlberg commented if a reasonable basis for excusing himself from consideration of this issue were to arise, he would certainly do so. Councilmember Garfunkel felt there were pictures the prior Council had reviewed which he would like to view prior to making a decision on this matter. McCarty moved, Garfunkel seconded to defer action relative to the request of James Cabalka, 58XX Christmas Lake Road and directing staff to establish a work session in March or April. Mayor Dahlberg moved to amend the motion to establish a work session in March. The motion failed due to the lack of a second. . Motion passed 5/0. 7. CHAPTER 308 - TRANSIENT MERCHANTS, SOLICITORS, PEDDLERS, CANVASSERS AND GARAGE SALES A. Administrator's Report on this Chapter of the Municipal Code City Attorney Dean explained this matter in detail. B. A Motion Regarding Amendment of Chapter 308, Subd. 11 License Limitations . Mayor Dahlberg asked for public comment at 8: 17 p.m. Hearing no public comment, Mayor Dahlberg closed the public comment at 8:17 p.m. Stover moved, McCarty seconded approving the amendment to Chapter. 308, Subd. 11 License Limitations reflecting the allowable hours to go door to door be from 9:00 a.m. to 9:00 p.m. Motion passed 5/0. 8. CONSIDERATION OF A MOTION REGARDING A RIGHT-OF-WAY PERMIT Applicant: Steve Codden Location: 20840 Forest Drive Mayor Dahlberg asked if the sewer system is fully extended. Planning Director Nielsen explained it extends just a few feet beyond the paved surface of the road. Subject: Cabalka Public Meeting Date: Wed, 26 Mar 199721:06:51 -0600 From: Kuester <home@kuester.com> Reply-To: home@kuester.com To: cityhall @shorewood.state.net Please distribute to the following: Mayor TOM DAHLBERG KRISTI STOVER JENNIFER McCARTY JERRY O'NEILL JOHN GARFUNKEL Re: Cabalka Public Meeting Unfortunataly we will not be able to attend this meeting. While we commend the Mayor and this council for taking the time it deems necessary to further review this issue, we believe the facts were cleary found last fall and along with our previous comments, are in the record. We also believe denying Cabalka, while perhaps an emotionaly difficult desicion is in keeping with the laws and regulations of the city and is in the best interest of all the residents of Shorewood who own and pay taxes for lakeshore propert,as well as to those residents who recreate on and enjoy the beautiful lakes which boarder our city. . . . . NOTICE OF EXECUTIVE SESSION MEETING MONDAY, MARCH 31, 1997 CITY COUNCIL OF THE CITY OF SHOREWOOD Immediately following the Special Council Meeting Scheduled for.7:30 P.M. The Shorewood City Council will meet in closed session format with the City Attorney to discuss current litigation matters, specifically the Ronald Johnson and Dee Johnson vs. City of Shorewood case. The meeting will be held in the City Council Chambers Room of the Shorewood City Hall, 5755 Country Club Road, Shorewood, MN 55331.