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Home My WebLink AboutPC report/encroachment issue �� MINUTES OF THE ORONO CITY COUNCIL MEETING Monday,January 12,2015 7:00 o'clock p.m. PLANNING DEPARTMENT REPORT 3. 2325 GLENDALE COVE—ENCROACRMENT ISSUE Curtis stated a buitding permit for the new home at 2325 Glendale Cover was issued in September of 2013 and a temporary Certificate of Occupancy allowing the property owners tv move into the residence was issued in January of 2014. Due to winter condirions,the site was not completed at that time. The City-approved site plan associated with the permit included one pmposed retaining wall near the west side of the home. When the fmal as-built survey was submitted in August of 2014,it was noted that three additional walls were constructed around the home. One wall extending the width of the property was constructed within the wetland buffer and the drainage and utility easement had been constructed without City review or approval. An additional wall exceeding four feet in height was constructed on the west side of the home and a building permit is also required due to the height. Typical�y landscape features which vary from the permit-approved landscape plan should have City approval and a zoning permit, which was not done in this case. The wetland buffer area is covered by City conservation and flowage easement and a MCWD wetland buffer declaration. Both documents prohibit construction of structures within the wetland buffer. Upon review of the as-built survey, Staff notified the property owners that one wall was located within the easement area and that it should be removed. Staff further met with the property owners and MCWD staff on November 7 to discuss resolution to the encroachment violation and the final Certificate of Occupancy,which continues to be withheld until the issues are resolved. At that time the Watershed District was willing to offer a compromise solution which involved removing turf and planting native vegetation in the required buffer area but allowing the wall to remain. Following that meeting,the property owners chose to make a formal request for an encroac}unent agreement with the City. Based on the Watershed District's proposal, Staff is agreeable to allowing all or some of the retaining wall within the easement area to remain subject to the requirement that the property owners enter into an encroachment agreement with the City. The encroachment agreement would allow the City to require the property owners to remove the encroaehments if the encroachments become an issue in the future. If the wall remains,the property owners should comply with the requirements of the MCWD regarding establishment of native buffer vegetation. The property owners have provided a statement from a structural engineer regarding the wall exceeding four feet in height on the west side of the home as requested. The property owners should apply for zoning and building permits and pay the after-the-fact fees to address the walls constructed that were not shown on the approved building permit survey. If the Council determines it to be appropriate,the City Attorney can draft an encmachment agreement for consideration at a subsequent meeting. Curtis stated Staff is looking for direction regardiag the encroachment agreement. McMillan asked if the buffer specifications will be worked out with the Watershed District and not involve the City. Page 4 of 19 MINUTES OF THE ORONO CTI'Y COUNCIL MEETING Monday,January 12,2015 7:00 o'clock p.m. (3. 2325 GLENDALE COVE—ENCROACHMENT ISSUE continued) Curtis stated to her knowledge the City will not be involved in that unless the Council has a certain preference for what they would like to see planted in that area. Curtis stated to her understanding the Watershed District will require native species. McMillan asked if the City would have required any#hing for the buffer area as part of the subdivision even if there was no wall there. Curtis stated at the time this development was created,the Watershed District had allowed some filling or some impacts to wetlands and wetland buffer areas. The areas that were considered buffer replacement azeas were expected to be vegetated by the MCWD and the City,which was not done in this case. Levang asked if the documents specify that. Curtis stated the Flowage and Conservation Easement does specify that. Casey Hoehn,property owner, stated they closed on their house the end of January of 2014 and subsequently moved in. The retaining walls were not part of the original survey from the builder since they were not sure what they were dealing with exactly. Hcehn stated in the spring they elected not to go with the builder's landscaper and instead hired their own landscaper. Hoehn indicated they then approached the Watershed District. Hoehn stated since it was a wetland buffer area,it was his understanding the regulations of the Watershed District supersede the City's regulations. There was some back and forth with the Watershed District on the buffer area and they performed some site visits. Hoehn stated they informed the Watershed District that they would like to construct a retaining wall in an attempt to address some severe erosion controls. Hcehn indicated they did receive verbal approval from the Watershed District for that wall and that it was not until after the final inspection by the City that they found out the wall was an issue. Levang stated she appreciates the letter submitted by the Hoehn's and that it dces appear they were proactive in this matter. Levang stated she dces have a question about their letter under the recommendation section. Levang noted the letter states,"We will also work with the MCWD on a cost effective compromise with seeding natural grasses and vegetation in agreed upon locations..." Levang stated in her view compromise is not the right term and that they will need to comply with what the MCWD requires. Levang stated the Council needs to be assured that they will do whatever is necessary to protect the wetland and buffer areas and that the language she read sounds a little equivocating. Hoehn stated when he said compromise,he was speaking more to a cost effective solution. Hcehn stated under the approval of the Watershed District,they were provided a boundary,which is depicted in the pictures as the second silt fence.Hoehn indicated they then used that as our boundary. Hoehn stated he would be willing to replace certain areas with natural grass but that he has already incurred the cost of sod and irrigation. Hcehn stated he was hoping he could speak with the Watershed District about a possible compromise where he would not have to tear up all the sod. Page 5 of 19 MINUTES OF THE ORONO CITY COUNCII.MEETING Monday,January 12,2015 7:0{I dclock p.m. (3. 2325 GLENDALE COVE—ENCROACHMENT ISSUE conunued) Mrs.Hcehn stated they want to be respectful of the wetland. Hoehn stated following the verbal approval, they went ahead and spent the money on the additional structures only for them to come back and say that it needs to be removed. Hoehn stated it is based on financial concerns and fiustration on their part. Mr.Hcehn stated the lot dces offer some seclusion with the wetlands and that they want to go out of their way to make sure that it is preserved. Hoehn indicated the part of the wall that is in the wetland buffer is the very tip of the concrete pad and the rest is in the buffer replacement area,which is land that was designated by the developer. Levang asked how amenable they are to removing the fire pit. Mr.Hcehn stated they were working within a certain boundary and that there was a substantial cost to that structure. Hcehn stated there are probably two rocks that are in the wetland buffer itself. Hcehn noted according to City ordinances,the buffer is now at 35 feet but at the time they purchased the property,their title documents reflect 25 feet. Hoehn stated he measured from the boundary stake for the wetland boundary and the closest rock encroaches by roughly 2.5 feet. Walsh stated he appreciates all the documentation that has been submitted and that it is very obvious that they were proactive. Walsh stated it appears the Watershed District failed to mention that they need to follow up with Orono. Walsh stated given the different layers of regulations,it can become confusing. Walsh stated if the Watershed District agrees to whatever form of buffer replacement or are willing to compromise,he would be fine with that. Walsh stated he would rather have citizens who are attempting to be proactive up front rather than citizens who do not make that attempt. Mr.Hoehn stated the Watershed District inspected the pmperty twice and that they had every opportunity to post the boundary or provide a map showing the location of the wetland. Hcehn stated the heartache comes from having to remove something that you paid for while working under the direction of what they thought was the appropriate agency. McMillan asked if they have a final agreement with the Watershed District. Mr.Hoehn stated nothing has been finalized at this point and that they basically received a letter outlining the meeting they had previously. Curtis stated the letter is included in the Council's packet and indicates that the Watershed District would like the buffer area to be native grasses. McMillan stated there are two buffers here,the regular wetland buffer and the buffer replacement area. McMillan noted the buffer replacement area replaces wetland that was f lled on another lot,which is tough for these property owners since they lose some of their back yard. Mr.Hoehn noted the wall has a very minimal impact to the wetland buffer. Page 6 of 19 MINUTES OF TIiE ORONO CITY COUNCIL MEETING Monday,January 1Z,2015 7:00 o'clock p.m. (3. 2325 GLENDALE COVE—ENCROACHMENT TSSUE continued) McMillan stated she was wondering whether there is a final agreement with the Watershed District about what will be planted and the location of the buffer. Mr.Hoehn stated the black line is the wall. McMillan asked if he is being asked to remove the sod. Mr.Hoehn stated to his understanding he is in that area and that he would like to compromise on the other side. Hcehn indicated he is willing to do buckthorn mitigation and other things to help offset that. MclVtillan stated from her point of view,whatever plan that is worked out with the Watershed District is fine,but that she had thought the Council would be seeing a final plan from the Watershed District tonight. McMillan indicated she would like to see that if the City gces ahead with an encroachment agreement. Mr.Hoehn asked if the easement area behind the house could be designated to take the place of any area that is impacted currently. Hoehn pointed out the easement on the overhead. McMillan stated to her understanding that is not part of their property and that it would be difficult to use that. Gaffron stated the sewer easement goes from west to east behind the property. McMillan stated sometimes the Watershed District will agree to move the wetland buffer but that she cannot speak for them. McMillan suggested they speak with the Watershed District and come up with a formal plan. Walsh stated he would not be apposed to having the mation state subject to. Levang stated she would like to see the plan so everyone understands what is going to happen since the City dces need to sign off on the encroachment agreement. Printup moved to direct Staff to draft an encrnachment agreement allowing the entire retaining wall subject to compliancc wit6 the regulations the Minnehaha Creek Watershed District would require for establishment of the native vegetation. Mattick stated the encroaclunent agreement would come back to the City Council at approximately the same time that the plan with the MCWD is finalized. Walsh seconded the motion. Walsh stated he does not want to penalize the Hoehn's with after-the-fact permit fees due to the unknown origin of the permits. Walsh noted the Hoehn's thought they were dealing with the right people. Printup stated he would accept that amendment to the motion. (3. 2325 GLENDALE COVE—ENCROACHMENT ISSUE continued) Page 7 of 19 MINUTES OF THE ORONO CITY COUNCII,MEETING Monday,January 12,2015 7:00 o'clock p.m. Printnp moved,Walsh seconded,to direct Staff to draft an encroachment agreement allowing the entire retaining wall subject to compliance with the regulations that the Minnehaha Creek Watershed District would require for establishment of the native vegetation,with waiver of the after-the-fact permit fees. Printup stated what he hears loud and clear from this application is that it is very familiar to another application that had a fire pit encroachment. Printup stated his concern is that the municipality is not coordinating well with the Watershed District. Printup stated he would prefer to ermr on the side of people who aze being proactive and attempting to do the right thing only to be stopped in their tracks by all of the bureaucratic paperwork. Printup stated the question is how the City can work better with the Watershed District. Printup nvted the City Council has talked about that before and that is what concerns him with applications of this type. Levang stated Staff has been working hard over the years to establish a good working relationship with the Watershed District. Levang stated if someone looks at the flowage and covenants,it was very clear what should have happened with the property and that the property owners should have realized it was their responsibility to understand all the conservation easements and covenants and that the property owners should have been apprised of those things at the time they purchased the property. I.evang stated the property owners need to understand exactly where their properiy boundaries are and that Staff has worked very hard to develop a strong relationship with the Watecshed District. Mack stated he does not see this issue as a conflict with the Watershed District. Mack stated the Planning Department has discussed this very thoroughly and have actually instituted some measures that will help prevent this&om happening in the future. Mack stat�the changes have to do with the way landscaping occurs on a site and whether it is part of the original building permit or not. Mack stated those changes will help make sure the homeowners are not caught in this type of situation in the future. Mack stated this situation involved different contractors and a lack of clear understanding of what was on the survey. McMitlan stated at times the developers fail to inform the property owners that certain areas have covenants over them or fail to notify them of a wetland buffer. McMillan stated it is very difficult for the average person to understand how those lines are formed since they are often determined by soil types and that when the lots are sold,they are not always marked. McMillan asked for clarification on the fee. Cudis stated a building permit is required for the wall exceeding four feet in height as well as a wning permit for the lower wall. The zoning permit is a$50 permii and the building permit is a sliding fee based on the cost of the pmject. Curtis stated the double fee is for the after-the-fact permits. VOTE: Ayes 4,Nays 0. Mattick noted this application will be brought back before the City Council at the time a plan is finalized with the Watershed District. Page 8 of 19 � V �! r Iv Item Description: Casey&Jill Hoehn—2325 Glendale Cove Ln—Encroachment Issue Summary: A permit for the new home was issued in September 2013; a temporary Certificate of Occupancy to allow the property owners to move into the finished structure was issued in January 2014. The City- approved site plan (09/12/13) associated with the permit included one proposed retaining wall near the west side of the home. When the final as-built survey was submitted in August it was noted that additional walls were constructed around the home. • One wall exceeding 4- feet in height was constructed on the west side of the home which requires a separate building permit and submittal of engineered design. This wall was initially proposed to be less than 4-feet tall; • One wall approximately 100 feet in length was constructed within the wetland buffer and the drainage & utility easement without City review or approval. There is also a recreational fire area within the buffer. • Two additional walls on either side of the home less than 4-feet in height were also constructed. Typically landscape features which vary from the permit-approved landscape plan should have City approval and a Zoning Permit prior to construction; in this case a Zoning Permit was not requested. The wetland buffer area is covered by a City conservation &flowage easement and a MCWD wetland buffer declaration which prohibit construction of structures within the wetland buffer. Upon review of the as-built survey staff notified that property owners that one wall was located within the easement area and should be removed. I met with the property owners and MCWD staff on November 7th to discuss resolution to the encroachment violation and the issuance of the final Certificate of Occupancy, which continues to be withheld until the issues are resolved. The MCWD was willing to offer a compromise solution within involved removing turf and planting native vegetation in the required bufFer area. Following that meeting the property owners chose to made a formal request for an encroachment agreement with the City. Based on the MCWD's decision, Staff is agreeable to allowing all or some of the retaining wall to remain within the easement area to remain subject to the requirement that the property owners enter into an encroachment agreement with the City. The encroachment agreement would allow the City to require the property owner to remove the encroachments if the encroachments become an issue in the future. If the wall remains, the property owners should comply with the requirements of the MCWD regarding establishment of native buffer vegetation and maintain wetland buffer signage. The property owners have provided a statement from a structural engineer regarding the wall exceeding 4-feet in height on the west side of the home which was included in the packet. The property owners should apply for zoning and building permits, and pay the after-the-fact fees to address the walls constructed that were not shown on the approved building permit survey. If the Council determines it to be appropriate, the City Attorney can draft an encroachment agreement for consideration at a subsequent meeting to address the wall within the easement. Tonight, Council should provide direction to staff regarding an encroachment agreement for the retaining wall within the easement area. .�� i �� .� � � �:.� � ��, �t �4� ��-►-'� �-�L�'Y► ,l/�C-�J� �' 1�X.=� Y��r ` . �� -� ,�-��2 . �� ,� ' � ��U �,��ti'� �� - �,�. s f-��b tv c�,a��- �.�o�--�� ' � �, �u�v � � I�� `s Gz ra �� '� �°� �,�-� —� � ��_� � . � r ► �j �a ��- �� '�--F vl,�e-f-1 GLw..Q�� . �n� ��'�,� �� -`� �Cl c c:.2�oJ-�yE �� i .� �, � . ��%V