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HomeMy WebLinkAbout07/21/2014 Planning Commission Minutes MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. ROLL CALL The Orono Planning Commission met on the above-mentioned date with the following members present: Chair Denise Leskinen, Commissioners Kevin Landgraver, Bruce Lemke, Christopher McGrann, Loren Schoenzeit, and John Thiesse. Representing Staff were Community Development Director Andrew Mack, Senior Planner Michael Gaffron, City Planner Melanie Curtis, and Recorder Jackie Young. Mayor Lili Tod McMillan was present. Commissioner Jon Schwingler arrived at 6:40 p.m. Chair Leskinen called the meeting to order at 6:30 p.m., followed by the Pledge of Allegiance. CONSENT AGENDA *1. APPROVAL OF PLANNING COMMISSION MEETING MINUTES OF JUNE 16,2014 Leskinen moved, Landgraver seconded,to approve the minutes of the Orono Planning Commission meeting of June 16,2014,as submitted. VOTE: Ayes 6,Nays 0. NEW BUSINESS 2. #13-3645 GARY BRIGGS, 1905 CONCORDIA STREET,AND BRIAN SUNDSTROM, 1895 CONCORDIA STREET, CONDITIONAL USE PERMIT AND VARIANCE,6:33 P.M.—6:52 P.M. Gary Briggs and Brian Sundstrom,Applicants, were present. Curtis stated the applicants are requesting approvals in order to repair and restore slope failures which occurred in their lakeshore yards. In July of 2013,the Briggs property at 1905 Concordia Street suffered a catastrophic failure of the lake slope. The property owner has been trying to develop a restoration plan that meets both the City's and the Minnehaha Creek Watershed District's goals to stabilize the slope and eliminate the sedimentation into the lake and his goals for stability, aesthetics and lake access. A portion of the failure on the Briggs property extends across the property line onto the Sundstrom/Olausen property at 1895 Concordia Street. Mr. Briggs has recently provided the City with a plan for non-engineered, stepped retaining walls with plantings to restore his lakeshore slope. He has proposed to tie his restoration into the portion of the Sundstrom/Olausen property that connects with his failure area. Curtis stated this past July the Sundstrom/Olausen property experienced a separate, less severe failure of the top of their shoreline slope. In discussing the potential restoration of the Sundstrom/Olausen property with the owners, it appears they would prefer a more natural restoration for their recent failure involving minimal walls/boulders and extensive plantings. Sundstrom/Olausen has not yet provided the City with a plan for their portion of the slope restoration but have hired the same surveyor and contractors as Mr. Briggs in order to develop a plan that works in conjunction with Mr. Briggs' restoration. Sundstrom and Olausen have discussed their plans with City Staff and the consulting city engineer. It appears the plan would result in possibly one wall at the bottom of the failure near the lake to anchor the slope and primarily consists of stabilization mats and deep-rooted vegetation. Page 1 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. Curtis stated a conditional use permit is required for both properties since the proposed work exceeds ten cubic yards in the 0-75 foot zone. Retaining walls and boulders added for support will require approval of hardcover variances. The submitted plan by Mr. Briggs results in approximately 700 square feet of hardcover, which consists of primarily walls within the 0-75 foot zone. Mr. Briggs has indicated his desire to reduce the visual impact of these walls with some vegetative screening. A landscape plan will be required to offer a natural-looking lakeshore and screening for the walls. City Code does require that a conditional use permit is issued prior to engaging in any activities to fill, elevate or alter the existing grade. Conditionally permitted uses must be reviewed using the criteria found in Section 78-916. The proposed work is intended to repair and restore failures of the slope not caused by the actions of the property owners. Staff finds that the conditional use permit for the restorative grading, planting and installation of retaining walls within the 0-75 foot zone appears to be reasonable and consistent with similar properties in the neighborhood and the landscape plan offers a natural looking slope. Approval is also necessary in order to repair/restore the areas of failure and stop any sediment from entering the lake. The City's Consulting Engineer has conducted an initial review of Mr. Briggs' plans and has provided comments that are included in the Planning Commission's packets. The City Engineer has also had discussions with Sundstrom/Olausen regarding their plans and no significant concerns have been noted at this time. A full engineering review will be conducted at the time of the administrative permits for construction on both properties. Curtis stated both applicants should consider providing a detailed landscape plan to the City. An estimate of the necessary hardcover has been provided by Mr. Briggs' wall contractor. The City expects a similar estimate when the plan for the Sundstrom/Olausen property is further developed. Only the minimal necessary hardcover to support the restoration should be installed. Planning Staff recommends approval of the hardcover variances and conditional use permits in order to conduct the earth work within the 0-75 foot setback area to conduct the restorations; construct the retaining walls; and implement appropriate landscape screening as indicated. As-built surveys and hardcover calculations reflecting the as-built conditions and hardcover amounts within the 0-75 foot zone should be submitted for both properties following completion of the work. Leskinen asked if the conditional use permit is for both property owners. Curtis indicated there would be separate conditional use permits needed for both property owners and approval of the application would cover both properties. A resolution for each individual property would be drafted by Staff for approval. Leskinen asked if the Sundstrom conditional use permit would be covered in any approvals tonight. Curtis stated that is the intent and further engineering oversight will be required once a plan is submitted. The purpose tonight would be to hold the public hearing and provide any input the Planning Commission feels is necessary. Landgraver asked if there would be two separate applications at the time they go before the City Council. Page 2 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. Curtis indicated it would still be one application but an approval resolution would be recorded against each property separately. Lemke asked if the sketch plan is at the proper elevation. Curtis stated it is not and that Staff is expecting some revisions to be made to the plan. Staff is also requesting clarification on the scope of the retaining walls. Lemke noted the City Engineer states that retaining walls four feet or greater in height must be designed by a licensed professional engineer. Lemke noted Staff's report says the walls can be up to four feet. Lemke asked if the walls would be below four feet. Curtis stated her understanding is once a wall reaches four feet, it must be engineered. Gary Briggs,Applicant, stated in his view the application has been handled well by Staff and he does not have any additional comments. Chair Leskinen opened the public hearing at 6:40 p.m. There were no public comments regarding this application. Chair Leskinen closed the public hearing at 6:40 p.m. Schoenzeit stated it is interesting that the two properties are combined into one application when the Sundstrom property does not have a plan that has been submitted. Schoenzeit stated he would like to see, when the drawings are submitted for the other property,that they have the same minimal amount of hardcover. Curtis stated it is the intent of the 1895 property owner to have fewer hardcover improvements than the Briggs property. Curtis noted the failure on the Sundstrom/Olausen property was not as severe as it was on the Briggs property. Schoenzeit asked if the City can require that the overall goal is accomplished even if the wall does not require engineering. Thiesse stated in his opinion they are meeting the code but that meeting the minimal intent of the code does not necessarily provide a satisfactory answer. Schoenzeit stated his recommendation would be that the wall be engineered and that the overall system be looked at. Leskinen noted the Planning Commission has no authority to require that. Schoenzeit stated he would still like that to be a recommendation since it may be a public safety issue. Curtis stated the City Engineer's comments indicate that the scope of the failure and the existing conditions on the site should be better documented via a survey, which is currently underway. Staff is Page 3 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. still reviewing and will continue reviewing the work more from a global standpoint. Curtis stated if the work does not require engineering, there is not a regulation that Staff requires it. Landgraver commented the Planning Commission could still recommend an engineer review the work to the applicant. Schoenzeit stated the applicants can choose to ignore the engineering Thiesse noted there are four tiers shown on Exhibit B and that it appears the walls will be 58 feet in length. Thiesse stated in his view the walls are ten feet short and that they should go another 27 feet into the yard in order to make a wall like this work without it being engineered. Schoenzeit asked if Mr. Briggs is opposed to obtaining engineering for the slope. Briggs stated he is willing to do whatever it takes to work with the City but that he would prefer not to incur the additional expense of hiring an engineer. Briggs stated he already has incurred a number of expenses. Thiesse asked if the Planning Commission is being asked to approve something that they are not reviewing tonight or whether the Planning Commission is being asked to provide direction at this time, with the application coming back before the Planning Commission. Schoenzeit stated the Planning Commission has seen only one plan, which is not sufficient to accomplish what needs to be done. Leskinen asked if this would still need to go through the permitting process of the Minnehaha Creek Watershed District. Curtis stated there is some level of permitting with the Watershed District that is required and then the City will also issue an administrative permit, which is the point at which all the plans are required to be submitted. Leskinen asked if what is being requested of the Planning Commission is the conditional use permit to allow for the grading on the site and not necessarily the permit for the specific solutions. Curtis stated this is a repair and that the property owners are attempting to put their lakeshore back together. Curtis indicated the Planning Commission is able to request additional information, but in order to expedite the matter and have the slope repaired this year, Staff would prefer not to hold the applicants up another month. Thiesse indicated he would be in agreement with that. Lemke noted the slope has been in this condition for the past year. Schwingler stated the failure is now affecting the adjoining property. Page 4 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. Landgraver recommended the application be moved forward and that in his view the Planning Commission is being asked to approve something conceptually at this point. Landgraver stated in his view additional information will need to be submitted prior to it proceeding to the City Council. Leskinen stated in her view the additional information would be a prerequisite of the permitting process and that the work will go through an engineering review on the City level prior to any work being conducted. McGrann stated even if the Watershed District approves the permit, it will still need to be reviewed by th City Council. Curtis stated Staff will not allow the applicants to proceed forward with the work until all the required information is submitted and reviewed. Leskinen stated she is comfortable with moving forward given the process that must still be followed. Landgraver moved to recommend approval of Application No. 13-3645,Gary Briggs, 1905 Concordia Street,and Brian Sundstrom, 1895 Concordia Street,to recommend approval of the hardcover variances and conditional use permits in order to allow the applicants to restore their respective lakeshore slopes through stabilization,grading,and the installation of retaining walls. McGrann asked if the motion could also include that if no additional documentation is submitted,the application will not proceed forward to the City Council. Schwingler stated they would need to submit that information and come back before the City Council before they can obtain a permit. Thiesse asked if the Planning Commission will get to see the more detailed plans. Curtis stated the City Council will be reviewing the additional information. Schoenzeit recommended the motion be subject to Staff's recommendations and City Engineer review. Leskinen suggested the motion also include a requirement for a landscape plan prior to review by the City Council. Thiesse asked the motion also include a recommendation that the overall work be reviewed by an engineer retained by the applicants. Landgraver amended his motion,McGrann seconded,to recommend approval of Application No. 13-3645, Gary Briggs, 1905 Concordia Street,and Brian Sundstrom, 1895 Concordia Street,to recommend approval of the hardcover variances and conditional use permits in order to allow the applicants to restore their respective lakeshore slopes through stabilization,grading,and the installation of retaining walls,subject to a landscape plan being submitted and further subject to the recommendations of Staff and the City Engineer,with the recommendation that an engineer retained by the applicants review the overall system. VOTE: Ayes 7,Nays 0. Page 5 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. Thiesse requested the Planning Commission discuss the ordinance regulating the height of engineered retaining walls be discussed at a future work session. 3. #14-3655 JOE AND DONELLE FELDMANN,805 FOREST ARMS LANE,VARIANCE, 6:52 P.M.—6:58 P.M. Joe and Donelle Feldmann,Applicants,were present. Curtis stated in April of this year the applicants received approval of variances allowing an in-ground pool to be constructed 112 feet from the ordinary high water level and retaining walls to be constructed 100 feet from the ordinary high water level where a 176 foot average lakeshore setback is required and up to 11 feet into the established buffer. Curtis stated the approved survey site plan and hardcover calculations submitted with that application did reflect the currently proposed three-season porch and deck. However, due to a miscommunication,those elements were not specifically discussed as part of the previous variance review. The property owners were not aware that the variances had not been specifically granted for the screen porch and deck additions. Tonight the Planning Commission is being asked to review an average lakeshore setback variance for the thee-season porch and deck additions. Since there is no adjacent home on the north, the average lakeshore setback line over the subject property is determined by the distance between the lake and the adjacent home to the south. The neighboring home at 815 Forest Arms Lane is set back 176 feet from the lake. The proposed screen porch and deck will be located entirely lakeward of the average lakeshore setback line. No additions can be constructed on the lake side of the home without approval of an average lakeshore setback variance. Curtis noted the applicant's property is the last lot which fronts on a long channel and is somewhat disconnected from the lake. The neighboring property's northern views over the subject property are not of the lake but rather West Branch Road. The location of the neighboring home and the nature of the channel create practical difficulties for the property owner. In addition,there are mature trees separating the applicant's property from their southern neighbor which will likely screen most of the views of the proposed additions. Planning Staff recommends approval of the average lakeshore setback variance allowing the construction of the screen porch and deck as shown on the corrected survey and deck plans. Leskinen asked if the deck plans have changed from what was presented in the original survey that was approved. Curtis indicated no deck plans were submitted at that time but the configuration on the survey has changed. Curtis stated the applicants have added a little catwalk to a landing that was already proposed to be hardcover but will now be part of an elevated deck. The plans that are in the packet show the layout of the deck, with the square footage being amended. Curtis stated the hardcover is conforming. Leskinen asked if the reconfiguration increases the encroachment. Curtis indicated it does not since it goes to the north. Page 6 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. The applicants had nothing further to add to Staff's report. Chair Leskinen opened the public hearing at 6:56 p.m. There were no public comments regarding this application. Chair Leskinen closed the public hearing at 6:56 p.m. Leskinen noted the Planning Commission had thoroughly reviewed this application earlier this year and that her only question relating to the application was regarding the reconfiguration of the deck. Schoenzeit commented he would almost characterize the application as a housekeeping matter. Thiesse stated the Planning Commission is not interfering with the intent of the average lakeshore setback ordinance. Leskinen noted there are no views that will be obscured as a result of this project. Schwingler moved,McGrann seconded,to recommend approval of Application No. 14-3655 Joe and Donelle Feldmann,805 Forest Arms Lane,granting of an average lakeshore setback variance. VOTE: Ayes 7,Nays 0. 4. #14-3675 RYAN AND STACY ALNESS,XXX ELMWOOD AVENUE/PID 07-117-23-11- 0027,VARIANCES,6:58 P.M.—8:15 P.M. Ryan and Stacy Alness, Applicants, were present. Gaffron stated in front of the Planning Commission are some additional items that were submitted today and late Friday, including the practical difficulty document, a letter from the adjoining residents, and also a letter from Glen Soley, another nearby neighbor. Gaffron noted the notification process for the hearing tonight was slightly flawed in that the applicants provided a plat map and property owner list that only reflected their property along North Arm Drive and did not reflect the lakeshore lot. Those neighbors received notice of the hearing over the weekend. The City Attorney has suggested that is not something that will void this process. Gaffron stated the applicants are requesting approval for an average lakeshore setback variance and a structure height variance to allow construction of a residence on the substandard vacant lot. The lot is located on the lake. Currently that lot is subject to a Special Lot Combination Agreement which ties it to the applicants' off lake property. For purposes of the review tonight, Staff will be looking at the variance application as if the Special Lot Combination Agreement is not in effect. The applicants' request for subdivision approval to separate this lakeshore parcel from their off-lake parcel was denied last fall. The applicants subsequently filed a lawsuit asking the Court to compel the City to terminate the Special Lot Combination Agreement. The lawsuit is on hold by agreement between the City and the applicants in order to determine what variances might be needed to construct on that lot. The Planning Commission is tasked tonight to make recommendations on whether there are sufficient practical difficulties to support the variances being requested. Gaffron stated while the lot is functionally not buildable unless an average setback variance is approved, Staff does not support the height variance. Page 7 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. The applicants are proposing a house that meets the side setbacks,the 75-foot lake setback,the street setback, and sufficiently separated from the sewer line that comes across the property and up the side lot line. Staff is hoping to acquire easements for the sewer line that apparently were not acquired at the time the sewer line was originally installed 30 to 40 years ago. Gaffron stated there are a variety of factors and site conditions which have an impact on development of the property, including the following: 1. The narrow width of the lot restricts the width of home that can be constructed to approximately 30 feet. The applicants are proposing a house that is 29 feet wide. 2. The small lot with a hardcover limitation of 25 percent of lot area coupled with the required street setback of 30 feet forces the property owner to balance the necessary hardcover amenities to make the site functional, against the size of home that can be constructed. 3. Location of existing municipal sewer lines within the property and the necessary easements to allow for their maintenance has an impact on the allowable location of the proposed home. 4. The sanitary sewer lift station centered in the narrow 20-foot right-of-way abutting the southeast corner of the property limits access to the site. The applicants have been working with the Public Works Department to determine the feasibility and costs of replacing the lift station cover and controls to make the lift station drivable. 5. An Encroachment Agreement would be required to allow the driveway in the right-of-way of a street that has not been opened to public use. 6. The sloped topography makes access to the site difficult,resulting in a steep driveway and impacting the vertical house design in order to have a functional garage entry. The applicants have revised their plans to just meet a 10 percent slope. 7. The steep slopes and narrow lot width force runoff to be managed within narrow 10-foot corridors adjacent to the house, which becomes more difficult with the proposed retaining walls and window wells in the side yards. There are retaining walls proposed on the south side. Gaffron noted the lot consists of 10,578 square feet in area and is located in a one-acre zoning district. The proposed house is under the 15 percent structural hardcover limit and is under the 25 percent hardcover restrictions. 8. The property will be served by a private well. Locating a well may be difficult given the proximity of existing municipal sewer lines and required separation between wells and sewer lines. Future maintenance accessibility must also be taken into consideration. As it relates to the average lakeshore setback, the line is based on the location of immediately adjacent lakeshore homes. More than half of the proposed home will extend lakeward of the average setback line. The buildable area of the site, after taking into consideration the setbacks, is approximately 600 square feet. The lot is functionally not buildable for a typical residence without an average setback variance. Gaffron stated the property to the east also includes the lot that is located on the north side of the applicants' property and those two properties have been subject to a Special Lot Combination Agreement Page 8 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. that essentially for zoning purposes makes those lots one lot. Gaffron stated functionally and technically the house to the rear does define the average setback line. That line goes through the middle of the proposed house. The intent of the average setback ordinance is primarily to protect the lake views a lakeshore property owner enjoys over their neighbor's lakeshore yard and avoid the tunnel view effect of being set back further from the lake than the neighboring properties. In the current situation, lake views enjoyed by the owners of the neighboring residence to the north are potentially affected by the proposed location of the applicants' home. The house at 1135 is slightly skewed on its lot and its existing views of the lake are slightly angled across the applicants' property. The house at 1135 is set back from the lake a significantly greater distance than most other lakeshore homes in the immediate neighborhood. Gaffron stated an additional factor to consider is that the house at 1135 sits substantially higher in the topography than the applicants' proposed house. The house to the east sits at approximately 980 feet and the applicants' proposed roof peak is at 983 feet. Gaffron stated from many locations at the neighboring house,they will be looking over the top of the proposed house. Gaffron stated as it relates to the building height,the applicants are proposing what Staff considers to be a three-story building in an area that limits the height of the structure to 2-1/2 stories. The defined height of applicants' residence just meets the 30-foot height limitation as calculated by City Staff per the provisions of the Zoning Code. The proposed house is, by definition,three stories in height, because the lowest level of the structure does not meet the criteria to be considered as a basement. Gaffron noted the applicants have revised their plans by lowering the floor below the garage down to the floor level on the left side, which creates essentially a five level house. Underneath the garage, there is a fairly high ceiling situation. Per the code definition, basement means that portion of a building that is partly or completely below the existing ground level. A basement shall be considered as a story for purposes of determining the number of stories in a building, when the finished surface of the floor above the basement is more than six feet above the existing ground level for more than 50 percent of the basement's perimeter. In order to determine the height, Staff divided the house into two separate wings. Gaffron stated the house wing does not meet the definition for a basement and would be considered a story. The garage wing side also does not meet the definition of a basement and is considered a story. As a result, functionally and visually it is a house that is three stories and not two and a half Staff has discussed this issue with the applicants and their representatives on two separate occasions to discuss potential options for redesigning the house to meet the 2-1/2 story limit. Options discussed included lowering the home two to three feet deeper into the ground and/or revising the upper story of one or both wings to meet the definition of a half-story. The applicants ultimately decided to pursue a variance based on a desire to not lose substantial third-story space by reducing its dimensions and rooflines to be a half-story. It can be argued that the number of stories is a design issue that can be readily resolved by designing a smaller house for this site. The lakeshore property currently being developed to the south faced a similar predicament and resulted in their original proposal being three stories. In that situation Staff worked with the applicants and they ultimately revised their plans to 2-1/2 stories. Page 9 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. Gaffron noted the City has rarely granted height variances. The only somewhat similar application Staff has found where a number of stories variance was granted was for an attached garage addition to an existing home on a steeply sloped lot on Highwood Road. In that situation,the garage attachment at the street side was allowed to replace an existing detached garage adjacent to the road. The visual impacts of a third story on a sloped lot may be minimal as compared to the impacts on a flat lot. The impacts of a third story for the applicants' lakeshore lot are potentially two-fold: 1. The view from the lake of a full three-story façade; 2. The potential impacts of the third story on lake views enjoyed by the neighboring property, especially when the height and average setback variances are coupled. Gaffron stated as it relates to the first impact, Staff acknowledges that there are a significant number of existing Orono homes on Lake Minnetonka that present a three-level façade toward the lake. Many of those likely would be defined as two-story homes based on their placement within the topography. With regard to the second impact, revisions to the roofline to make the third story into a half-story would likely result in a lower peak height and reduced impacts on the neighbor's views of the lake. However, increasing the ceiling heights of the lower stories could potentially negate any gains by creating a half- story. Gaffron stated there is no guarantee that redesigning to a 2-1/2 story status will reduce the overall height. Gaffron noted the applicants have provided a practical difficulties statement and should be asked for additional testimony regarding the application. The Planning Commission should determine whether the property owner proposes to use the property in a reasonable manner and whether the circumstances of this situation are unique to this property not created by the landowner. In addition,the Planning Commission should determine whether the variances will alter the essential character of the neighborhood and whether the special conditions being applied to this structure and/or property are peculiar to the property or immediately adjoining property. Staff acknowledges that the lot is not functionally buildable unless an average setback variance is granted. Staff does not support the height variance on the basis that a full third story is not necessary for construction of a modest residence on this substandard-sized property. The Planning Commission should hold the public hearing and consider whether there are sufficient practical difficulties to support the average setback variance and/or the height variance. If a recommendation for approval is forthcoming,the Commission should support the recommendation with appropriate findings and determine whether it is necessary to impose conditions in order to mitigate any specific impacts created by the granting of the requested variances. If a recommendation for denial is presented, appropriate findings and reasons for denial should be presented. If the Planning Commission desires further information or concludes that other designs should be considered by the applicants,tabling would be in order. Gaffron stated based on some of the information received today from adjacent property owners,the City Attorney has suggested that there are some legal questions that may need to be answered prior to the application moving forward regarding the language in the Special Lot Combination Agreement, and in that case,the Planning Commission should table the application. Page 10 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. McGrann asked what language he is referring to. Gaffron stated the neighbor's attorney is arguing that the Special Lot Combination Agreement negates the ability of the City to take any action until the Special Lot Combination Agreement is extinguished through the subdivision process, which was earlier denied by the City Council. Gaffron stated the applicants' attorney has suggested the pending lawsuit should be put on hold to review the variances tonight. The City Council has suggested that it is important for them to understand what variances would be necessary. Gaffron stated it appears there are too many unknowns at this point, and given the request and the information submitted today, it may be appropriate to consider tabling rather than moving the application forward. Lemke asked what the two properties with the V or arrow indicate. Gaffron stated the two properties shown with the arrow are subject to a Special Lot Combination Agreement and they are considered as a single lot. Gaffron stated technically that lot is not considered vacant. Landgraver asked if the Planning Commission has to assume that Special Lot Combination Agreement is real in that situation but not real in this situation. Gaffron stated for the sake of this review,that is correct. Lemke asked what the square footage is of the proposed house. Gaffron stated they are talking about three levels. Gronberg indicated the footprint is 1496 on the house,which includes the garage. Gaffron stated it would be 3,500 to 4,000 square feet of living space for the three levels,which would not include the garage. Schwingler asked if this is all hypothetical at this point. Gaffron stated it would be hypothetical because the City Council cannot grant those variances absent an extinguishing of the Special Lot Combination. Thiesse asked if the City Attorney feels that is okay. Gaffron indicated the City Attorney believes this process is necessary before any next steps can be taken and that final action on the variances cannot be taken unless the Special Lot Combination is extinguished. Gaffron stated he would encourage the Planning Commission to listen to public comment and come to whatever recommendation they feel appropriate. McGrann asked if the lots are hypothetically split, whether the lot to the north would be split as well. Gaffron stated it would not be. Page 11 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. McGrann asked if the setback lines would still hold. Gaffron indicated that is correct. Schoenzeit stated the Planning Commission has not had any discussion on the setbacks such that if the neighbor can see the shoreline on the applicants' property, whether that should be preserved. Gaffron stated this is a unique situation. Landgraver asked if it is contemplated by the height restriction. Schoenzeit stated the view would clearly be altered. Gaffron stated the height restriction does not necessarily contemplate this type of situation, but the current situation does exist and is a factor. Morgan Cavanaugh,Attorney-at-Law, stated he represents the applicants. Cavanaugh stated the lawsuit that was brought in December of last year is an active lawsuit and basically challenges the legality of the Special Lot Combination Agreements, specifically with regard to the fact that they provide specific restrictive covenants. Cavanaugh stated he engaged in discussions with the City Attorney in an attempt to find a resolution to the situation and the City Attorney indicated there was interest on the part of the City in resolving this situation. Cavanaugh stated if the Special Lot Combination Agreement is terminated and the average lakeshore setback issue is denied,the applicants are in the position of now having two separate lots, with a dock on one lot. The purpose of the Special Lot Combination Agreement initially was to allow the dock to remain without an accessory structure. The City has basically said that the applicants would need to apply for the variances and the City Council would then review those. Cavanaugh stated the variances would be addressed after the Special Lot Combination Agreement was terminated. Cavanaugh indicated they are kind of in the limbo of applying for the variances while the Special Lot Combination Agreement is still in effect. Schoenzeit asked if the property owners knew that the Special Lot Combination Agreement was in effect at the time they purchased it. Cavanaugh indicated they did. Schwingler asked if they knew it was an unbuildable lot at the time they bought it. Cavanaugh indicated that is correct and that the lawsuit relates to whether that is legal. Schwingler noted the previous property owner accepted that Special Lot Combination. Mrs. Alness noted the law has changed regarding 50-foot properties. Thiesse noted state law has changed but the City's regulations have not. Thiesse asked if the Planning Commission is being asked to go through this review as though the lawsuit does not exist. Page 12 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. Cavanaugh stated the lawsuit has been stayed by him pending discussions with the City in an effort to find a resolution. Schoenzeit asked what happens if the applicants prevail from the state law and it is determined that this is a buildable lot but that Orono's code standards relating to height and setbacks cannot be met. Cavanaugh stated that is why they are here and that they are challenging the Special Lot Combination Agreement. Schoenzeit stated the question is whether the lot is buildable as proposed if the lot is compliant and there was no Special Lot Combination Agreement in effect. Cavanaugh stated his understanding is that Staff is recommending the average lakeshore setback variance. Cavanaugh stated they cannot ignore the Special Lot Combination Agreement since the neighbor has one, and if the agreement is found to be invalid,the neighbor's agreement would also go away. Cavanaugh stated as it relates to the height issue,they have a disagreement with Staff over the interpretation of the code. Cavanaugh stated the house as proposed is below 30 feet. The alternative plan that Staff has brought forward does not change the height but relates to the floors and how the code is interpreted in relationship to the basement. Mark Gronberg, Surveyor, requested the sketch showing the various levels be displayed. Gaffron displayed Sheet A5. Gaffron stated this is the revised plan showing the garage on the left. Gaffron stated instead of the garage being up four to six feet, it is on the same elevation as the lower floor of the house. Gronberg stated if you look at the definition of a basement, it states that a basement shall be considered as a story for purposes of determining the number of stories in a building when the finished surface of the floor above the basement is more than six feet above the existing ground level for more than 50 percent. Gronberg noted it states the floor above the basement and does not say the second floor above it. Gronberg stated the way they interpreted that to mean is the floor above the basement. Gronberg noted there is another floor, which is the garage floor. Gronberg stated the floor above the basement is way more than 50 percent, and when you use that interpretation, the need for a height variance goes away. Gronberg indicated he considers that to be the floor above. Gronberg noted the last line says: However, artificially raising the grade when such action merely restores a previously excavated site to its original natural grade may be used as a method for converting a defined story to a defined basement. Gronberg stated at the end of the property there is a lift station which does not allow them to go further down. Gronberg stated to get to the 10 percent,they are fixed at the garage grade. If the elevation of the house is lowered any further, it creates the need for additional steps and causes problems relating to the construction of the house. Gronberg illustrated how the water flows on the site and stated that there likely has been erosion on the site over the years and that they should be able to use the contour lines straight across where the normal grade would be. Page 13 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. Schoenzeit stated it sounds like the applicants are saying that Orono's Code concerning the definition of the basement is missing the word adjacent floor as opposed to the floor on the opposite side of the house. Schoenzeit stated when the majority of the basement calculation worksheets are completed, Staf typically uses the height of the floor outside where the land is being measured. Gronberg stated the definition is not very clear when measuring multi-level homes. In this case more than 50 percent of the floor is the main living floor and not the garage floor. Schoenzeit stated when he looks at the plan that has been submitted,the floors are ten,ten, and ten, and then there are 2-foot floor systems. Schoenzeit stated the applicants could easily take off four feet from the house by reducing the height from ceiling to floor by a foot. Schoenzeit stated he does not believe that what has been submitted is 30 feet and that he sees it as being 34 feet plus the roofline. Gronberg stated the average height of the building is less than 30 feet. Thiesse stated on the cross section he has 12 feet, 12 feet, 10 feet, and then a roof. Schoenzeit stated in his opinion there are opportunities to re-engineer the house to reduce the height. Gronberg stated he did not design the floor plans but that he understands there are some difficulties with floor height and clearance and the number of steps. Dean Johnson, Builder, stated he does not believe the average height is a problem. Gaffron stated the height of the house has a peak height from the lowest grade to the peak of 44.5 feet. Staff then takes the average of the highest peak, which would reduce it by four feet, and then ten feet above the lowest level, which would result in a 30-foot elevation. Gaffron noted the existing grade at the entrance to the garage is more than 10 feet above the grade at the low side. By definition Staff uses 10 feet above the low side for defining the height, and as a result,you would end up with 44 minus four for the average of the highest peak and minus ten for the grade. Gaffron stated that calculation would result in a defined height of 30 feet. Gaffron indicated Staff does not have an issue with the defined height but that it is the number of stories. Schoenzeit stated to his understanding both issues are at play since there are three 10-foot floors and two 2-foot floor systems. Gaffron asked if the point is that the floor system or the height of rooms can be reduced. Thiesse stated that is not the problem and that the problem is the number of stories. Schoenzeit asked if the floors are required to be a certain height. Leskinen stated they are limited to 2-1/2 stories. Schoenzeit stated if the City did not care what the height of the floors were,the building could be higher than 30 feet but still be 2-1/2 stories. Page 14 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. Gaffron stated the house has a peak height of 44 feet from the lowest point at grade to the peak. Gaffron stated the building technically meets the definition of building height because it meets a 30-foot building height by definition. Gaffron stated if the question is whether the height of each of the floors is reduced, would the height of the building be reduced and have less of an impact to the neighboring property than at 44 feet, then in that situation the peak height could be reduced down to 40 or 42 feet. Schoenzeit stated a redesign could help support their position. Leskinen stated even if there are three short stories,that would still be a problem since there would still be three stories. Gaffron stated it is not too tall but that it exceeds the number of allowable stories. Johnson stated the problem is when they read the City's ordinance, they thought it meant the level before, which is two-thirds of the basement. Johnson indicated they were not thinking that it went up to the next story to figure that out. Due to the extreme slopes on the site and the erosion that has happened over time, you end up with a situation where the City is not allowing for the floor of the garage and the floor of the house. Johnson stated if a different set of rules are imposed that says because the garage floor is not close to the main living floor, then that creates an issue, but that is not what the ordinance says. Thiesse stated he would disagree with Mr. Johnson since it says the floor above the basement and not the floor adjacent to the basement. Johnson stated there are two floors. Thiesse stated there is only one floor above the garage. Schoenzeit stated if the majority of the basement is six feet, it would be considered a basement. Johnson asked if you would not use the majority of the floor that is over the basement as it relates to figuring the six foot line. Schoenzeit stated you would use the floor above from where you are measuring. Johnson stated they did not understand the ordinance to be saying that. Johnson stated the house has been broken into two wings and that they did not see anything in the ordinance that would cover that. Gaffron stated he does not agree with Mr. Gronberg's analysis that because this is over 50 percent, you should be using the other one. Gaffron stated they should be using the floor above the basement that goes across the entire length of the house. Gaffron noted Staff has had this discussion with the applicants and their representatives. Johnson stated the house is approximately 2,500 square feet for the upper two stories and the basement is 1,000 square feet. Gronberg asked if there will be any discussion about the contours. Gronberg stated they would like to use the natural contours for determining the height of the story. Page 15 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. Gaffron stated Staff does not have any evidence that the existing grade was changed by erosion, and until that evidence is provided, Staff cannot buy into that argument. Chair Leskinen opened the public hearing at 7:47 p.m. Mark Thieroff, Attorney-at-Law, stated he represents Renee Meerkin and Claus Weiler. Thieroff stated there are two reasons why this application cannot be considered at this point in time, and the first is the existence of the Special Lot Combination Agreement. The second is that it requires additional variances that have not yet been applied for and that the City should not be acting on a partial application. As it relates to the Special Lot Combination Agreement, Thieroff noted it was alluded that Paragraph 4 of the agreement prohibits the City from granting the variances that have been applied for tonight unless and until that Special Lot Combination Agreement is terminated. Thieroff noted termination occurs through a successful subdivision. The applicants sought a subdivision and were denied, which means the agreement remains in effect. Thieroff stated his clients have enforceable rights under that contract and that they should not act in a way that would breach the contract. Thieroff stated as it relates to the lawsuit, as Mr. Cavanaugh clarified,the lawsuit has been filed and the City has been sued. There is an informal agreement in effect granting the City an extension of time to engage in that litigation. Thieroff stated he understands that the attorneys are attempting to resolve the lawsuit and that what is being done today is an attempt to characterize what variances are required. Thieroff stated in his experience that is done at a Staff meeting. Thieroff noted the applicants have not applied tonight for conditional variances but that they are asking the City to grant variances which would be legally enforceable if they are granted. Thieroff stated the application is premature and that in his view it may be creating more problems than it might potentially solve. Thieroff stated there are three additional variances that are not being requested that are necessary in this situation, and the first variance is from the total prohibition of constructing a house in the bluff impact zone. Thieroff indicated he did speak with Staff about this and was told that Staff has concluded that it is not in the bluff impact zone. Thieroff stated he would like to hand out a one-page analysis which includes a profile of the bluff that the property is located on. According to the City's regulations,there is a horizontal requirement and a vertical requirement. The horizontal requirement and the threshold requirement is that there is a 50-foot stretch of land horizontally where there is an average slope of at least 18 percent. The beginning of that is called the toe. The second step of the analysis is whether there is the requisite vertical slope and whether there is an average slope of 30 percent or more. Thieroff stated when Staff performed their calculation,they determined that the toe is at the 439-1/2 foot elevation since that was at least an 18 percent grade point. Staff then calculated the average slope increase above the 25-foot mark and determined that T-1, T-2, T-3, and T-5 come in under 30 percent. Thieroff noted those measurements are very close to the 24-foot mark. Thieroff stated if the toe is placed at 942 feet, 50 feet out from there is an average slope increase of 18 percent. Thieroff indicated he then calculated the average slope increase at T-1, T-2, and T-5, which shows that there is an average slope increase of at least 30 percent at those points except for T-1, which would make this bluff land. Thieroff stated it is his belief that the bluff is one of the issues that Mr. Gaffron was referring to when he thought there might be grounds to table the application. Thieroff stated in their view it is grounds to deny Page 16 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. the application. In addition,the application does not present all the variances that are required. If the toe is put at 942,this would be considered bluff land and require a variance since the City's ordinance states there shall be no structures in the bluff land. Thieroff stated the response he received back was that Staff does not agree the toe is at 942 feet. Thieroff stated the second additional variance not applied for is a variance to the structural coverage limit. The applicant's calculation was at 14.9 percent and Staff agreed with that calculation. Thieroff stated as he reads the ordinance,the applicants would need to include the patio but did not. The ordinance says patios are included if they are partially enclosed by a wall. Thieroff stated the patio is right up against the house and that he would construe that as partially enclosed, which bumps it over the 15 percent. Thieroff stated in addition,this is a tiny lot that is substandard by a significant degree. The lot is located in a one-acre zoning district but it only consists of a quarter acre. Thieroff stated he heard reference to the state statute earlier this evening and that he would like to point out the statute was amended to give the City discretion to allow someone to build on a lot less than one acre but does not require it. Thieroff stated since the time the state statute has been amended,the City has not amended its ordinance to allow that and the applicants would need a variance for that as well. Thieroff stated in regard to the ordinance requirements for granting a variance, he would like to highlight two points. The state statute and the ordinance state that you cannot grant any variance that is incompatible with the Comprehensive Plan or with the Community Management Plan. Guiding Principal No. 5 states that views shall be preserved. Thieroff stated this development, if allowed, would not preserve but would obstruct the view his clients have enjoyed for a number of years. Thieroff stated the plight of a landowner should be due to unique circumstances and not circumstances that they have created themselves. The applicants have purchased a piece of property with a house and another piece of property with a dock on it. The Special Lot Combination Agreement says they could never construct on that property unless it was subdivided and the City Council has denied the proposed subdivision. Thieroff noted there have been no changes in the law or circumstances that would require a different outcome and that there are no unique circumstances other than the desires of the landowner. Thieroff noted the design of the house is also a circumstance of the property owner's own making. Schoenzeit noted the applicants' attorney said he thought the Special Lot Combination Agreement may be illegal, which brings up the point that if the average lakeshore setback moves to the front piece of the property, one of the major issues would go away. Schoenzeit asked what his thinking is in regards to that. Thieroff asked if he is saying that these two lots are separated Schoenzeit stated if you assume that the two lots cannot be combined and if the Special Lot Combination Agreement went away and if the average lakeshore setback moved to the theoretical location of No. 6 or goes away completely, what his thoughts are regarding those circumstances. Thieroff stated he does not remember what is north of Lot 6. Gaffron indicated there is a house there. Thieroff stated it is an extremely hypothetical question because it is not the case that the pending lawsuit against the City is challenging these Special Lot Combination Agreements across the board. Thieroff Page 17 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. stated to his understanding there are 12 Special Lot Combination Agreements in the City and to his knowledge those property owners have not been served as part of this lawsuit. Thieroff stated they would need to be made a party to the lawsuit if someone is attempting to change their property rights. Thieroff stated the claim in the case is not that Special Lot Combination agreements are illegal but rather that the circumstances for the Special Lot Combination Agreement in this case were somehow unfair. Thieroff stated those are very, very different facts for each piece of property, and if the Court should declare that this agreement is invalid,the other agreements would still be standing. Thieroff stated if there was a house on No. 6,that would be the appropriate place to measure. Leskinen stated she does not want to drift too far into issues that are not before the Planning Commission. Schoenzeit stated in his view the setback is a critical issue and needs to be resolved. Schwingler stated he found it helpful to learn that there would need to be separate lawsuits for each of the Special Lot Combination Agreements and that any ruling would apply just to this one particular property. Chair Leskinen closed the public hearing at 8:03 p.m. Landgraver noted there are two issues before the Planning Commission,the lakeshore setback and the two and a half stories. Schoenzeit commented this is a difficult lot to build on and that he does not understand why the applicants would choose this lot to build on. Lemke stated his concern with the average lakeshore setback is that it makes the lot unbuildable and that there are also issues with the slope. Lemke stated in general it seems like way too much house for that size of a lot and would be out of place with the rest of the neighborhood. Leskinen stated she also has a concern with the amount of massing next to the lakeshore. Leskinen stated she also is still stuck on the fact that this lot has had a number of previous applications for a building on it and it has always been deemed unbuildable. Leskinen stated even if you look at the lot without the Special Lot Combination Agreement, she would still come to the conclusion that the lot is unbuildable given its size, especially with the average setback. Thiesse noted they are doing exactly that two lots over. Leskinen stated there is not an average lakeshore setback in that case. Thiesse stated the lot itself can support a house but the average lakeshore setback stops that. Thiesse stated the Special Lot Combination Agreement was put in place to benefit the owner of the property by giving them access to the lake. That has now become a detriment to the property owners because someone at the state level has determined that you can build on 50-foot lots. Schoenzeit stated the average lakeshore setback is what makes the lot unbuildable independent of the lot size. Schoenzeit stated in his view the building being proposed is too large and that the property owners bought the property knowing that there was this Special Lot Combination Agreement in effect. Page 18 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. Thiesse asked what the Planning Commission is being asked to do tonight. Leskinen stated her understanding is that the Planning Commission has been asked to look at the application as if the Special Lot Combination did not exist. Leskinen stated the question is if this lot was independent of that agreement, would the Planning Commission grant these variances. Leskinen stated in her view the Planning Commission is not in a position to make a formal motion since the Special Lot Combination Agreement does exist. McGrann stated to his understanding the lawsuit over the Special Lot Combination Agreement will not impact the lot to the north. Gaffron stated the lot to the north has a separate agreement and whatever happens with the current lawsuit does not change the fact that they have a Special Lot Combination Agreement unless they decide to separate their two lots and go through a subdivision. McGrann stated he finds it very hard to believe that this lot is buildable especially in light of the average lakeshore setback. McGrann stated the Planning Commission can table it if the City Attorney and Staff would like to look at other legal questions, but at the end of the day, McGrann indicated he will find it difficult to approve the average lakeshore setback variance. Landgraver stated the question is whether the Planning Commission would contemplate a variance to the average lakeshore setback and it appears there are a lot of nos in addition to the 2-1/2 story minimum. Lemke stated he is not as concerned with the average lakeshore setback as the other Commissioners are since that house is abnormally far back from the water compared to other homes in the area. Schoenzeit stated the property owners purchased the property with that setback. Thiesse stated if the applicants had chosen to construct a rambler style house, he likely would look at the average lakeshore setback variance a little differently. Thiesse moved, Schoenzeit seconded,to table Application No. 14-3675,Ryan and Stacy Alness, 1169 North Arm Drive. Landgraver asked if there is a consensus to deny the variances. Landgraver stated he does not understand what tabling the application will accomplish other than perhaps allowing any additional factors that arise as part of this matter to be vetted by people in a different pay scale and then brought back once those are hashed out. Thiesse stated based on what he has heard tonight, there may be some different extenuating circumstances that perhaps should be looked at. Schwingler stated there are other reasons to deny the variances outside of the Special Lot Combination Agreement. Morgan Cavanaugh stated he would prefer a denial. Thiesse stated the Planning Commission does not have enough information to deny the application. Page 19 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. Cavanaugh stated the lawsuit can be addressed with the City Attorney and the City Council. Thiesse stated the Planning Commission does not have enough information to deny the application. Cavanaugh asked what additional information is required. Thiesse noted the Planning Commission does not know if the roofline is going to change and whether the top of the house is going to stay where it is. Cavanaugh stated even if the recommendation is to deny,those issues can still be addressed and that they would prefer a denial. Gaffron stated Staff's recommendation would be to table the application. VOTE: Ayes 7,Nays 0. 5. #14-3676 LAKESHORE HOLDINGS,LCC,2470 AND 2490 CARMAN STREET,LOT LINE REARRANAGEMENT,8:16 P.M.—8:40 P.M. Sven Gustafson, Applicant,was present. Curtis stated the applicant owns all three of the subject properties which make up 240 and 2490 Carman Street. The property addressed 2470 Carman Street is 0.89 acres in area, 88 feet in width and currently contains a single-family home. Access to this property is over a driveway which crosses a portion of the northerly lot of the 2490 Carman property. The property at 2490 Carman Street is comprised of two separate PIDs and has a total of 0.45 acres, 66 feet in width, and contains a portion of the driveway serving 2470 Carman. The applicant would like to eliminate the common lot line dividing the two PIDs which make up 2490 Carman as well as move the lot line dividing 2470 and 2490 as an east/west division to create a north/south division. This would eliminate the physical connection of the 2470 Carman Street to Carman Street itself and result in a larger 2490 Carman property. The driveway access for 2470 Carman would need to be reoriented to the existing driveway access on the north end of this lot. This lot line rearrangement would result in making the two properties more balanced in area and the widths of the lots are not proposed to be changed. Curtis stated because the lot line rearrangement proposes to land lock 2470,the issue of access to the 2470 property is still in question. The City Attorney is reviewing easement documents submitted by the applicant to determine if this property benefits from an access easement over the Edwards property to the north. Ultimately the existing driveway crossing 2490 can be shared by both subject properties for access to Carman Street as a second driveway access point is not likely to be supported by the City. The west lot line of 2490 Carman abuts the undeveloped City right-of-way and the LR-1B zoning district dictates a 35- foot side street setback for structures. The owner of 2490 has expressed an interest in possibly pursuing a side street setback variance in the future for the development of this property. Staff recommends approval of the lot line rearrangement. The property owner has provided new proposed legal descriptions for each property. As part of this approval, the applicant will be required to Page 20 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. file new deeds based on new legal descriptions. Staff will work with the property owner and the City Attorney to ensure that the necessary documents are prepared and filed. The Planning Commission should hold the public hearing regarding the lot line rearrangement and make a recommendation to the City Council. Curtis stated the applicant has provided Staff tonight with a driveway access plan for 2470 and 2490, which is a shared driveway situation. If new easements need to be executed, they should be prepared and ready for recording with the lot line rearrangement approval resolution. Curtis stated the applicant and the adjacent property owner is present tonight. Thiesse asked if the house will be demolished. Curtis stated that appears to be the plan at some point in the future based on the sketch submitted for access. Thiesse stated if the lot line rearrangement is approved, it is likely the Planning Commission would require that the house be in a conforming location, but if it is to be removed,that would not be an issue. Gustafson stated they are not proposing to remove the house at this time. Thiesse stated if the house is not removed,the house would be nonconforming. Curtis stated if the existing house is not removed and is required to be conforming to the setback, it would make Parcel No. 2 significantly smaller. Sven Gustafson, Applicant, stated they have not come to a conclusion on which method of access they would prefer. Gustafson indicated his attorney has reviewed the easement documents and that they have been submitted to the City. Gustafson stated there are easement documents that appear to indicate they can tie into the existing driveway that abuts Lake Minnetonka on the north but that there are some questions about how they were written. Gustafson indicated he is waiting to hear back from the City Attorney on that issue. Gustafson stated three access points off of a curb cut is acceptable but maybe not preferential. Gustafson asked if Staff would prefer two or three access points. Curtis stated there are currently two properties accessing off of the Edwards driveway, and to avoid the creation of a new curb cut for the existing number of lots,that driveway could be used for a third access point. Curtis stated whether a third curb cut should be created has yet to be determined. Leskinen asked where the access point would be. Curtis illustrated the location of the access up to Carman Street. Gustafson stated off the screen to the right are two existing homes that use the easement up to Carman Street. Leskinen asked where the new access point would be located. Page 21 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. Curtis stated they would be utilizing the existing curb cut or close to the existing curb cut for 2490. Gustafson stated their backup proposal would be to tie 2470 directly north into the existing driveway and then up to Carman. Curtis pointed out the location of the Edwards driveway and then the 2470 access. Gustafson stated regardless of whether the house remains or is razed,the access could go directly north. Curtis pointed out the location of Carman Street. Curtis stated the other driveway is not shown on the overhead. Leskinen asked if his preferred access is to the north. Gustafson stated they have not determined that yet and are awaiting word from the attorney on the easement documents to see whether that is an option. Gustafson stated the option that is displayed is over property that they control. Thiesse noted there would be hardcover in the 0-75 foot zone. Gustafson commented he did not think of that. Gustafson stated their drawing shows the 75-foot setback and that they were attempting to keep everything out of that zone. Gustafson stated the driveway could be pushed up against the setback but the topography is steeper in that area. Curtis stated to her knowledge the plan also contemplates a side setback variance from the street. Chair Leskinen opened the public hearing at 8:27 p.m. Kim Edwards, 2480 Carman Street, stated to his knowledge there is not an easement that would allow him to head west. Edwards stated he has an easement for him to go across their property that was set up years ago but that they had to purchase the other piece of land to continue the driveway. Edwards stated if the lot lines are changed, he has a concern that one of the parcels will become landlocked and then the applicant will say there is a hardship. Edwards stated the driveway that is currently being used now is a 9-foot wide asphalt driveway and is not meant for high traffic. Edwards stated in his view the applicant needs to prove that there is an easement. Gustafson stated there is an easement and the question is whether the wording is adequate. Gustafson stated they will not be land locking the property and that they have two options at this point for accessing 2470 once the lot lines are rearranged. Landgraver asked if what is before the Planning Commission right now is simply a lot line rearrangement. Gustafson stated Staff has informed him that they would like to see the easements recorded or drafted prior to the City Council meeting and that Staff would be looking at the language of the easements. Page 22 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. Curtis stated if new easements are required to access 2470 over 2490 because of a different layout of the driveway, that would be something the City would want to have in hand and record with the lot line rearrangement. Curtis stated they would be land locking 2470 without that easement. Curtis stated if the easement cuts across the Edwards property and gives the applicant permission to access 2470, the City needs to understand that piece of it as well. Curtis stated Staff would not dictate that the Edwards grant an easement for this property at all but that Staff has to know whether there is access to both properties. Gustafson stated prior to the City Council making a motion on the application,there would need to be an easement proposal as well as a Plan B. Curtis stated the City Attorney is reviewing the information that is contained in the Planning Commission packet and that at a minimum Staff would want a resolution of whether it will be Plan A or Plan B. Leskinen stated with respect to the lot line rearrangement, the biggest sticking point is the easement, which needs to be resolved prior to final approval. Leskinen asked if Staff is aware of whether there are any other issues with the lot rearrangement. Curtis stated she does not believe so. Thiesse asked if Parcel 2 is a buildable lot at the present time. Curtis stated there is a lakeshore lot and a non-lakeshore lot,and when the analysis was done concerning nonconforming lots of records, it was determined to be actually three lots. Gustafson stated they are combining Lots A and B with a portion of Parcel 1. Thiesse stated if the lot line was not moved across the back, he would have access to the land locked parcel. Thiesse asked what the difference would be if the lot line is granted as well as an easement since a driveway still has to be constructed across there. Curtis indicated it would impact the hardcover and structural lot coverage on Parcel 2. Chair Leskinen closed the public hearing at 8:34 p.m. Thiesse asked if Mr. Edwards is opposed to the lot line rearrangement or whether he would just like the easement verified. Edwards stated he is not opposed to the lot line rearrangement as long as they do not drive up the driveway. Leskinen commented she likes the idea of combining three lots into two. Leskinen noted this is already a shared driveway arrangement but that she does generally get concerned about creating a landlocked situation where there will be a need to create a shared driveway situation. Page 23 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. Lemke moved to recommend approval of Application No. 14-3676,Lakeshore Holdings,LLC,2470 and 2490 Carmen Street,granting of a lot line rearrangement as proposed subject to verification and clarification of the easement. Gustafson asked what proof would be required. Curtis stated the City Attorney will be reviewing the easement and providing comment. Curtis stated if Mr. Edwards disagrees with the comments of the City Attorney, it will become a discussion item at that point. Curtis indicated Staff would prefer a resolution that does not put pressure on an adjacent property owner to grant an easement. Landgraver stated the Planning Commission simply wants clarification of whether there is an easement over this section of property. Edwards noted his uncle is part-owner of the property and that the deed is in his father's name and uncle's name. Edwards indicated he is here tonight representing them. Thiesse stated it is doable without touching Mr. Edwards' easement. Edwards stated it is doable as long as the land is not landlocked. Gustafson stated Plan B would provide access to the parcel and that he is just waiting for the City Attorney to provide his opinion. Landgraver seconded the above motion. VOTE: Ayes 7,Nays 0. 6. #14-3677 PAUL JOHNCOX,ZONING CODE AMENDMENT IN THE B-1 DISTRICT USES,8:40 P.M.—9:13 P.M. Paul Johncox,Applicant,was present. Curtis stated the applicant is the owner of A-Plus Cleaning Contractors,which is a commercial cleaning company, and has recently purchased the property at 3596 Shoreline Drive in Navarre with the intent of relocating the offices and storage area associated with his business from their current location in Shakopee to this site. The property is located in the B-1 Retail Sales Business District. The applicant intends to occupy a portion of the 3596 Shoreline Drive property and lease space to a separate tenant who will operate a Class II restaurant and salon in the same building. The conditional use permit for the restaurant and salon is tentative scheduled for a public hearing at the August Planning Commission meeting. The applicant's use would be classified as a warehouse or storage space with a small space as an office space often referred to as office/warehouse. The applicant's intended use is not listed as a permitted or conditionally allowed use in the district. Orono's industrial district specifically allows office/warehouse as a permitted use. If the use is not specifically identified in the Code under the allowed conditional permitted uses, it is considered not to be permitted. Page 24 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. On June 18, 2014,the applicant submitted an application for a zoning code amendment contemplating the addition of an office/warehouse use inclusion to the existing list of permitted B-1 uses. The applicant has provided a brief description of his business which is attached as Exhibit B. The purpose of the B-1 retail sales business district is to provide areas for the types of businesses which supply merchandise or perform a service primarily for residents in the surrounding neighborhood. Based on the existing list of permitted uses,this district is intended to allow for retail shops, restaurants, and service providers where the customers visit the property. Staff finds the applicant's proposed use to be inconsistent with the intended uses for the B-1 district and more consistent with the existing allowed office/warehouse use in the industrial district. The Planning Commission should open the public hearing and discuss the applicant's request. Andrew Mack noted the term used in Staff's report is inconsistent, but that what may be a clearer statement is it is not listed as a permitted use in the B-1 district. Upon closer analysis of the term warehouse,the only place where a warehouse shows up in the permitted use section is in the industrial district. Mack stated there are numerous examples throughout Orono and a large part of the country where there are some of these unique office type uses that have some need for storage space. Mack stated whether the correct term is warehousing or inventory or stock for a retail or a service operation is an interesting discussion. Mack stated what would be appropriate would be to take a look at this example and also another typical office/warehouse type project within the community. Mack stated he will start with this particular use where they are talking about converting a section of the building into a warehouse or overstock area for some of their products as part of their office use. Mack indicated he calculated the total square foot of the building and arrived at a split of 35 percent for the office/warehouse area and 65 percent for the salon/restaurant, which is a permitted use in the zoning district. Mack stated the discussion the Planning Commission should focus on in regards to a text amendment is whether that small percentage of overall gross floor area of the structure is appropriate; and if so, standards should be applied and how that use should be listed and controlled. If the use is made a conditional use, the City has the ability to apply standards that can be adopted as part of the text amendment as well as a review of the use through a hearing. Mack stated what is more typical for an office/warehouse use is located on Wayzata Boulevard,which is a 20/80 split. In that particular case, office space constitutes approximately 40 percent of the building and 60 percent warehouse. Three separate businesses are operated out of the structure. Mack stated normally a building will have approximately 2,000 square feet of office and six to eight thousand for warehouse space. Mack stated in his view the Planning Commission could focus discussion on the text amendment with the thought of creating standards that would place limits to prevent the majority of the building from becoming a warehouse since it is located in a retail district. Mack noted the applicant has not provided draft language for the text amendment and Staff would be seeking some direction from the Commission on appropriate language that could then be brought back before the Planning Commission. Mack stated the important element in this application is to place Page 25 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. standards and limits on the use, with the Planning Commission having the ability to consider other important impacts to the neighbors, such as screening and parking, as part of the conditional use permit. Paul Johncox, Applicant, stated the building is nonconforming and has been an eyesore to the community for a number of years. Johncox indicated the weeds are overgrowing and the parking lot is falling apart. Johncox stated he purchased it with the intent of developing it and enhancing the community. The front two-thirds of the structure will house a salon and a restaurant. Johncox stated it also made sense to have an office in the back along with some storage area. Johncox stated he would also like to construct a nice patio in the front with a nice fence and outdoor lighting. Johncox stated the offices should not impact the visual aesthetics of the building and that the warehouse space would be half personal use and half business use. The office/warehouse space would be approximately 35,000 square feet. Lemke asked if any outside storage or truck parking is being anticipated. Johncox stated there would not be and that the restaurant and salon would take up the majority of the parking. Lemke asked if there would be retail sales out of the office. Johncox stated there would not be and that there would be a few salespeople coming to his office. Thiesse asked if there would be deliveries to the building. Johncox indicated the building does not have a holding dock and that the deliveries would be made in small delivery type vans. Landgraver stated the offices could be professional suites, and asked if the warehouse would become an independent entity. Johncox stated it likely would be. Landgraver asked if the warehouse could be owned separately from the offices. Thiesse stated professional offices could also use some storage. Johncox stated it could either be professional offices or warehouse. Landgraver stated it appears the applicant would like maximum flexibility but that the City is looking at placing limits on the office/warehouse use. Mack stated the intent of this application is not to create a separate warehouse business but that it would be a part of the cleaning business. Landgraver indicated he understands that part of the application but that at some point in the future it is possible that the warehouse section could become a separate business. Landgraver stated the ability to separate the warehouse from the offices at some point in the future needs to be taken into consideration. Page 26 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. Johncox stated it could be rented out to an electrical company that needs warehouse space along with some office space. Johncox stated he plans on using the space at least for the next five years or so. Chair Leskinen opened the public hearing at 8:58 p.m. There were no public comments regarding this application. Chair Leskinen closed the public hearing at 8:58 p.m. Leskinen stated the Planning Commission has discussed in the past that if the uses can be made independent of each other,that that is something that needs to be closely looked at. Leskinen stated if an office/warehouse is to become a permitted use in this district,the standards and ratios would need to be very clear if the City goes the route of a zoning code amendment. Landgraver stated typically the warehouse space is directly linked to the office space and that in the example given earlier,there were three or four separate businesses in the building. Johncox noted there are only 14-foot ceilings and that it would be difficult to use it as a true warehouse. Johncox indicated it really would have to be looked at as a storage area. Thiesse stated he has a difficult time envisioning it as a warehouse. Leskinen stated whether it is called material storage or a warehouse, it should be used in conjunction with the office space. Schoenzeit stated a grocery store will have an office front with storage in the back. Schoenzeit stated the question is whether there is a supply and demand for this type of use in this area. Schoenzeit stated in his view the City should encourage this type of investment given the fact that the building has been for sale for five years. Thiesse stated if someone cannot utilize a forklift in the area, it should not be defined as a warehouse and that materials storage area might be a better term. McGrann stated the Planning Commission should look at this as storage and not a warehouse. Schoenzeit noted the applicant would not have a retail office. McGrann stated it could be retail or more service related, such as a cleaning company. Schoenzeit stated retail implies that people will be coming to the building. Mack stated there could also be some additional building codes that need to be addressed based on the materials storage and cleaning supplies that would be stored there. Mack stated the use should be defined. Johncox stated no chemicals would be manufactured there but that they would be stored there. Page 27 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. Leskinen stated if this is primarily a storage space for the associated businesses in the building, it might not trigger the need for a zoning code amendment. Lemke noted all of the permitted uses in this district do have a retail function. Thiesse noted conditional uses do not and that professional offices and offices of a general nature are considered a conditional use. Mack stated normally there is a little bit of discretion on the part of the City if something does not fit the strict confines of the ordinance and that a conditional use permit is one option. Mack stated if the Planning Commission decides that this does not fit the true character of a warehouse building, it could perhaps be considered professional offices with storage, which could be addressed under a conditional use permit rather than a text amendment. Landgraver stated in his view that would be the most expedient thing to do. Landgraver stated the storage space would be linked to the office suite and that the space ratio would need to be spelled out. Schoenzeit stated the conditional use permit could also ban forklifts. Landgraver stated he does not see any issues with this particular entity but that there could be issues in the future. Landgraver stated the overall issue of office/warehouse could be discussed in a work session. Leskinen indicated she would concur this should be discussed at a work session. Leskinen stated for this particular application, if it is deemed not to be warehouse space but more storage space, the Planning Commission could perhaps spell out the allowable ratio of storage versus office space in a conditional use permit rather than a text amendment. Mack stated in his view Staff would agree with that, and that as part of the conditional use permit, Staff could write in conditions of approval. Mack stated looking at additional parts of the code is a very worthy topic for a work session, and that in the short time he has been here it has become pretty clear that there are some segments of the code that are outdated as well as some confusing language. Mack stated he would suggest holding a work session for code review sometime this winter. Thiesse asked if the owner of the building would be allowed to expand the storage if the front businesses do not make it. Leskinen stated the ratios would need to be clearly defined in the conditional use permit. McGrann stated he would have some concerns if the entire front of the building appeared to be warehouse space. Mack stated he would recommend that this not be tied to some storage use of the front building areas. Mack stated as proposed,the storage would constitute only 35 percent of the whole business and that he would never advocate for anything higher than that. Leskinen stated the storage area should be tied to one of the uses in the building and that it can never be a storage space for a business independent of the building. Page 28 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. Landgraver stated the Planning Commission is also saying that the storage space cannot be in the front of the building. Leskinen noted the Planning Commission is not approving the conditional use permit at this time and that they are only discussing the possibility of creating a zoning code amendment. Curtis stated if the Planning Commission goes the route of a conditional use permit,there would need to be a commercial site plan review with notice being given of a conditional use permit for a restaurant/salon and a conditional use permit for the office/warehouse. Leskinen stated that would be the time to get into the specifics of where the storage space would be located and other specific conditions. Johncox stated if the restaurant does not make a go of it, he would rent that space out as retail space. Mack stated once some of the enhancements to the Navarre area are completed, the desirability and walkability to this area will also become more attractive. The Planning Commission took no formal action on this item. PLANNING COMMISSION COMMENTS 7. REPORT FROM PLANNING COMMISSION REPRESENTATIVES ON CITY COUNCIL MEETINGS HELD ON JUNE 23,2014,AND JULY 14,2014 McGrann stated he attended the June 23 City Council where a discussion was had on Big Island and the 13 watercraft that capsized due to the unexpected storm. In addition,there was a presentation by Mediacom on their proposed build-out and a lengthy discussion regarding the Your Boat Club application. McGrann indicated the City Council was not interested in exploring a B-2 subdivision and felt that the properties should either be residential or commercial. McGrann stated in order to change the code, it would require a 4 to 1 vote, and it became apparent that the City Council would not be voting in favor of that. Gaffron stated one of the questions that came out of the discussion was whether the southerly property should be zoned residential and the other residential parcel zoned commercial. Gaffron stated since that meeting, the applicants have made an application to the LMCD for relocating the docks and reorienting them to meet the LMCD standards without encroaching on the property to the south or north. Gaffron stated they are proposing to make the docks smaller for possibly jet skis. The applicant was also advised by Staff and the City Council that the appropriate way to move forward would be with a Comprehensive Plan Amendment and that he should withdraw his application for rezoning. Gaffron indicated there are a number of issues that still need to be addressed and that he has a meeting scheduled with the applicant on Thursday. McGrann stated there was also a fair amount of discussion regarding safety of the pedestrians in the area. The City Council also approved some amount of money to help the residents on Baldur Park Road in dealing with the flooding. Page 29 of 30 MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday,July 21,2014 6:30 o'clock p.m. Mack stated the residents on Baldur Park Road also submitted a petition to the City Council asking them to consider reconstructing the roadway. Schoenzeit stated he attended the July 14 meeting. There was a presentation on the large area of Baldur Park Road was flooded and what portions of the road are below 932.5. In addition, Dennis Walsh spoke about the police addition and the cost overruns as well as the lack of enforcement of City Codes. The Orono Public Schools application was approved as well as the Northern Avenue application. A discussion was held regarding the large number of trees that were being removed as part of that development from what was originally proposed and as a result the City Council requested the applicant submit a new landscaping plan. Schoenzeit stated the vacation of the easement for Wolverton Place was approved, with a lengthy discussion on the amount of fee reimbursement. The City Council also requested the encroachment agreement for Joseph Church be more specific on the items encroaching on the fire lane. Gaffron stated the Lakeview application will be before the City Council on June 28. Gaffron indicated the revised sketch plan will likely show 2-acre lots, no public trail, and 47 units. 8. OTHER ISSUES FOR DISCUSSION Mack noted last week he presented a webinar overview of all of the code changes in the Minnesota 2014 legislative session that have anything to do with planning/zoning/annexation laws, etc. Mack stated there is a case coming out of Bloomington that will be before the Minnesota Supreme Court dealing with conditional use permits and the ability for a City to deny a conditional use permit. Mack indicated he would send out a link to the webinar to the Planning Commission if they are interested in reviewing that. ADJOURNMENT Leskinen moved, Schoenzeit seconded,to adjourn the Orono Planning Commission meeting at 9:37 p.m. VOTE: Ayes 7,Nays 0. ATTEST: ls-led'e Denise Leskinen, Chair Page 30 of 30