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MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 22, 2013 7:00 o’clock p.m. _____________________________________________________________________________________ Page 8 of 18 (5. Permit #2012-00424 - JAY AND ALYSSA KANIVE, 950 WILLOW VIEW DRIVE – APPEAL, Continued) Kanive indicated he is disappointed to see the Arrowhead delineation being referenced again. Kanive stated the Arrowhead delineation does not exist. Kanive stated they were told to obtain a wetland delineation, and since they did not know any better, they went out and contacted someone for the wetland delineation. A preliminary delineation was staked out. After that was completed, Catherine Bach walked us through the process. Kanive indicated once they understood the process, they disapproved of the wetland delineation that had been done and would have requested certain revisions be made. Since the Watershed District said they already have one that they rely on, Kanive stated they went ahead and cancelled it. The Watershed District did not approve this delineation and we, as the homeowners, do not approve it either. Kanive stated it was also a little frustrating to find out after that that the City already had a delineation when they were told they did not. Kanive indicated they spent $700 for something they did not need to do and also wasted months of time waiting for this to go through. Staff has implied that the delineation was needed to determine setbacks for the sport court. The code for Orono expressly states that no setback is required for sport court type structures. Section 78-1608(2)(a) of the code specifically states that sport court structures and in grade patios do not need to be set back from any wetland buffer. Clearly from the location of the sport court, it was not anywhere close to the approved wetland buffer that the Watershed District approved in 1999. Kanive stated there is an incorrect distinction between disturbance and grading. You can disturb 5,000 square feet but that does not mean that you have graded it. You can move dirt, and then if you are not changing the grade, that does not count. There is over 12 cubic feet of what Staff is calling a disturbance, which is not grading and should not be included in the 50 cubic yard calculation. There was also a hint that there would be some cumulative effect over time and that that 12 cubic yards should not count. All of the houses in the neighborhood are graded since this was originally a flat wetland marsh. The developer took out an unnatural earthen berm or part of a turn and returned the grade of the property back to the original state rather than change the grading itself. Kanive stated by taking out that manmade hill, he would contend whether they hit the 50 cubic yards since they were returning the grade to its natural state and not performing new grading that adversely affects the wetland. As it relates to the future nonconformity, if Staff’s logic is followed about preventing future nonconformities, the entire neighborhood and future houses would be a future nonconformity. The only test for a wetland is if vegetation exists and the soil is wet. This is a low lying neighborhood in general, so to continue to go back, according to the definitions of what is a wetland, you would just roll back and eventually the neighborhood is a future nonconformity. As it relates to the fire pit and patio, which are not part of this application, Kanive indicated they did ask the City if permits were required for both of those projects and were told none were required. As a matter of record, based on the verbal approval from the person in the City, Kanive stated he considers these structures approved by the City and he is not going to debate it further tonight. Kanive indicated the Watershed District knows that the back of the fire pit is in the buffer zone for the original buffer and they are more than willing to work with us on a resolution, which he has no problem with. Item #03 - CC Agenda - 05/13/2013 Approval of Council Minutes 04/22/2013 [Page 8 of 18]