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MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, April 22, 2013 7:00 o’clock p.m. _____________________________________________________________________________________ Page 11 of 18 (5. Permit #2012-00424 - JAY AND ALYSSA KANIVE, 950 WILLOW VIEW DRIVE – APPEAL, Continued) Gaffron stated the code directs Staff to not allow or approve of any future nonconformity, which could be something that exists without any approvals but is placed in a location where at some future date the buffer is triggered and that item suddenly becomes nonconformity. Staff does not have a choice under the current code to accept the fire pit when they see a delineation and a potential encroachment into the wetland even though Staff believes the Watershed District would accept ultimately the new delineation. Gaffron indicated they did not know that for certain because no one had surveyed the fire pit. Gaffron stated it becomes a Conservation Act issue if there is an encroachment of a wetland. Staff disagrees with the Wetland District’s policy of using a 12 or 13-year old delineation that was done before the development occurred based on a proposed drawing rather than actual plans. Gaffron noted the survey is not an as-built survey. The Watershed District does not have an easement or a covenant for the buffer based on the drawing that is before the Council, and from Staff’s perspective, they did not have a choice but to request a new delineation to determine if there was an encroachment of a buffer. Gaffron noted Staff was required under the current code to request the wetland delineation. Gaffron noted at the April Planning Commission meeting, the consensus was to get rid of the City’s attempt to regulate future nonconformities. Gaffron stated if it was not in the City Code, they would not be here tonight but that it will probably be a month or two before the code changes. Levang asked if he is referring to the fire pit or the sport court as the nonconformity. Gaffron indicated he is referring to the fire pit. Levang noted Kanive was told by the City that he did not require a permit for the fire pit. Kanive indicated his contractor was also told the same thing. Levang questioned how the City can hold him responsible for something that he was told was a nonissue. Curtis indicated she did not speak with him or his contractor. Kanive stated it was Christine Mattson. Curtis stated she discussed with Mr. Kanive the fact that a grading permit was required for any earth disturbance of 0 to 500 cubic yards. A grading permit was not obtained for this work and they would have been told a grading permit would have been required. Kanive noted he did have a city inspector inspect his property when he applied for the deck steps and the patio was being built at the same time. Curtis stated they spoke about the patio and that the incorrect information was given to him by the city inspector. Kanive stated he understands he needs to deal with the Minnehaha Creek Watershed District on the fire pit. Item #03 - CC Agenda - 05/13/2013 Approval of Council Minutes 04/22/2013 [Page 11 of 18]