HomeMy WebLinkAbout11-16-2020 Planning Commission Minutes MINUTES OF THE
ORONO PLANNING COMMISSION
Monday,November 16,2020
6:00 o'clock p.m.
ROLL CALL
The Orono Planning Commission met on the above-mentioned date with the following members present:
Chair Jon Ressler, Commissioners Chris Bollis,Bob Erickson,Matt Gettman, Scott Kirchner,Dennis
Libby, and Mark McCutcheon. Representing Staff were Community Development Director Jeremy
Barnhart and City Planners Melanie Curtis and Laura Oakden.
Chair Ressler called the meeting to order at 6:00 p.m., followed by the Pledge of Allegiance.
APPROVAL OF AGENDA
Libby moved, Gettman seconded,to approve the Agenda for the November 16, 2020 Planning
Commission meeting. VOTE: Ayes 7,Nays 0.
APPROVAL OF PLANNING COMMISSION MEETING MINUTES OCTOBER 19, 2020
Kirchner moved,Libby seconded,to approve the minutes of the Orono Planning Commission
meeting of October 19,2020 as submitted.VOTE: Ayes 7,Nays 0.
PUBLIC HEARINGS
1. LA20-000069 ALL ENERGY SOLAR,4760 BAYSIDE ROAD,VARIANCE. STAFF,
JEREMY BARNHART
Kali Anderson,Applicant,was present.
Staff presented a summary of packet information. Regarding practical difficulty, Staff notes that the
State Statutes identify inadequate access to sunlight as a practical difficulty; in its review, Staff notes that
the improvement will have no impact on neighboring properties. The City prohibits ground mounted solar
systems and recently denied a ground mounted array variance on a different property. Staff supports the
variance as proposed.
Gettman asked if aesthetics is really the only reason that the statute exists, or that actual guidance exists.
Barnhart does not know all of the reasons,but that seems to be the most obvious one. From a structure
standpoint, if the structure can support the additional amount of solar panels,that is a building code
question not necessarily a variance question. Primarily, it is a visual impact type of issue.
Collin Buechel, a representative from All Energy Solar, stated they are proposing to meet the variance
and to address the question; they will get structural analysis on the roof. Any sort of structural
components or concerns will be addressed with a professional engineer licensed in the State of Minnesota
doing analysis on the roof. They are applying for a variance for the 70%coverage rule and as Barnhart
addressed, one of the big reasons the 70%coverage rule is in place is to minimize the visual appearance.
If they were to reduce the solar panel system to meet the 70% coverage,they would also have an irregular
layout; as far as an eyesore,the proposed plan is a clean-cut, square on top of the roof. If the intent of that
70%coverage rule, in combination with it not really being visible from either road besides just the
homeowners, contributes to that factor. As Barnhart mentioned,according to Minnesota statute, access to
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direct sunlight is defined as a practical difficulty. He noted the main reason this design was chosen is the
City of Orono also does not allow ground mount solar, so one could argue that there is plenty of access to
solar in the yard,however given that ground mount systems are not permitted, this roof top system is
what they are left with.
Libby asked a few questions as he has dealt with some of these designs and engineering on other
properties outside of Orono. He asked if this is really oriented to be southwest facing, so as the winter
sun zenith drops to the horizon the Applicant will still be able to gather as much sunlight as possible.
Mr. Buechel replied that is correct.
Libby asked if they are incorporating battery backup with this and are able to store any of this energy and
use post sunset.
Mr. Buechel said he believes they are not doing any sort of backup system.
Libby asked if they are integrating the energy that is gathered there into the primary structure, or is this
just solely for the secondary outbuilding.
Mr. Buechel noted this will be tied in and the homeowner will be able to offset their electricity use on
their residence.
Bollis noted this will be a trend that will continue and he is curious as far as clients in other cities,if this
is a pretty common ordinance.
Mr. Buechel said there are some other jurisdictions that allow for the coverage; numbers he has seen are
more in the 80%range,rather than 70%. Typically, that is on the actual residence,not necessarily the
accessory structures. There are not many that have the coverage limitation and if they did it was usually
before;the current building code now incorporates access pathways for firemen to get on the roof and still
have access to put out fires. With the new building code being enforced in April of 2020, some of those
type of preventative methods for safety and is probably part of what this coverage limitation was used to
address,and has now been taken into consideration in the current building code.
Erickson asked if they contemplate removing or trimming any trees in order to gain better solar access.
Mr. Buechel does not believe so.
Kirchner noted it had been said that 83.2%of coverage is required to obtain this aesthetic look of the
squared off panels;would it be possible, obviously not at 70%,but to go less than that to obtain a squared
off visual appearance.
Mr. Buechel replied he may have misspoken. Right now it is a nice, cohesive design,but that number of
panels is designed perfectly to offset 100%of their electricity usage, and that is the rationale behind the
design. He noted he was more-so speaking on if they remove panels,they lose that design.
Kirchner clarified the primary purpose of this design as well as the subsequent variance request is to
accommodate the power required at the primary residence and to offset that.
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The representative from All Energy Solar replied that is correct.
Kirchner asked if this could function and provide some power without requiring a variance in going above
the 70%.
The representative from All Energy Solar answered yes,they could reduce panels and offset a smaller
portion of their electricity bill,but the whole rationale is in order for the solar to work for the Applicant,
they'd like a full offset.
Ressler said he believes the homeowner had comments, as well.
Kali Anderson,homeowner at 4760 Bayside Road,noted from a technical standpoint it would absolutely
be feasible to have fewer panels. Their goal was to offset all of their energy usage on an annual basis and
one reason for that is the interconnect process with Wright-Hennepin Co-op is such that this system didn't
necessarily pencil out financially without being able to offset all of their electricity. Ms. Anderson noted
Mr. Buechel had described the logistics and she wants to share why this is important to her family. As
stated,the system has been designed to offset the electricity they anticipate needing on an annual basis.
In her opinion, the production of energy from carbon-free sources is really becoming more and more
important. She thinks the Governor would probably agree, because in March of 2019, the State of
Minnesota announced a goal that 100% of our electricity would come from carbon-free sources. In order
to meet that goal, she said we need to make changes in both how we use and produce electricity. Some of
these changes will probably go unnoticed by all of us; a lot of these changes will come from the electric
companies at the utility scale and we will be none-the-wiser. Some of these changes would be very
visible to homeowners, for example,putting extra insulation in our homes to make our homes more
efficient. One change they are talking about today is such that it would make Ms. Anderson and her
family happy and smile every time they look at these solar panels because they know they are doing
everything in their power to reduce the carbon footprint while teaching their children the importance of
living within earth-means. On a national scale,the push to become carbon-neutral is of course, stemming
from climate change. The international panel on climate change indicated that in order to keep our way
of life approximately similar to today's standards,we need to keep our global temperatures from rising
more than 1.5 degrees Celsius. If we imagine for a moment that we allow our earth's temperature to raise
up to 3 degrees Celsius, the National Audubon Society has estimated that 66%of birds in North America
would become extinct, including up to 50%of raptors. This estimate was only conducted for birds,but
she thinks we can all extrapolate these numbers and imagine the chain effect on the rest of the ecosystem,
including our food production. The National Audubon Society also estimates that if we can keep our
increase in global temperature to 1.5 degrees Celsius, 75%of these avian species could be saved. In order
for our national energy production to become carbon-neutral by 2050, we would need to develop,
construct, and bring online approximately 1,000 gigawatts of wind, 1,000 gigawatts of solar, and 1,000
gigawatts of either hydro, nuclear, or another non-carbon energy source. This equates to doubling the
work force in the next fifteen years, and doubling that number again ten years after that by the year 2045.
Those numbers feel a bit staggering to Ms. Anderson. To bring it back to the local level, she realizes the
little tiny system they are talking about here is not even a drop in the bucket when talking about national
needs. However,this is very significant to her family; her son is 4 years old, and her daughter is 2 years
old and they are already asking what power lines are and what they do. They think wind turbines are
really cool and while they haven't had a lot of exposure to solar panels yet, Ms. Anderson has no doubt
that they will be spending hours talking about how they can make energy and how they can give people
the ability to turn lights on in their home. If for no other reason,Ms.Anderson is asking the Planning
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Commission to approve this variance so her children can grow up knowing and understanding that
everyone needs to do their part to keep our collective home safe.
Chair Ressler opened the public hearing at 6:17 p.m.
Chair Ressler closed the public hearing at 6:17 p.m.
Chair Ressler said to Barnhart they've discussed a bit about what the spirit of the maximum of 70% is
how Orono views the maximum for coverages and practical difficulty can allot for accessibility to
sunlight. Of course the alternative would be to clear trees and he does not think anyone is for that, either.
His question is perhaps Barnhart can give him some insight as far as the 70% access to sunlight if there is
not an alternative placement for it in this case. He would have to look a bit closer at the primary,but it
does not seem like it's a large difference between what is allotted and what is requested and that could be
argued either way. He is looking for more insight on the definition of the practical difficulty as it relates
to accessibility to sunlight.
Barnhart replied he may not have a lot of background on that,but the State statute says practical
difficulties also include, but are not limited to,inadequate access to direct sunlight for solar energy
system. He noted that is all it says on the subject, so maybe the question is,is"inadequate access"the
difference between 70%and 83%. The 70%is Orono's number and is not a State number, so Barnhart
applied the practical difficulty for the request for variance. Onscreen, Barnhart pointed out the roofline of
the principal structure and said it is really a lot of little roofs and they would get to that 70%pretty
quickly and pretty inefficiently to create the desired amount of solar panel. They have also already
learned that the option in terms of providing ground-mounted solar array,which in many respects is much
bigger screened, is a variance that the Council in the past has not been willing to accept. He noted they
approved one but denied the most recent one. He cannot offer that as a recommendation in terms of
variable and what the Applicant is asking for. He thinks the 13%difference between what is allowed and
what they are requesting is reasonable,given when they know to be a practical difficulty and the impact it
has on the adjacent property. Barnhart thinks they are satisfying the requirements of City code by
approving this variance.
Kirchner is struggling a little bit,he has heard the practical difficulties were listed as inadequate access to
sunlight, and if he understands correctly, it does not seem that there is inadequate access to sunlight.
Rather, in order to offset the primary structure's power consumption, there needs to be this amount of
panels. He understands that the roofline of the primary structure is a challenging roof with many gables,
which then allows for the accessory structure to be the next best option for the placement of this. He is
struggling to understand how the gables on the roof of the primary structure should then allow for the
variance over and above the 70%here. Generally,he is very supportive of something like this and he
believes it is a great use of the property; it looks like there is a lot of land there and good space to do
something like this. He is struggling on truly grasping that the practical difficulty is inadequate access to
sunlight.
Gettman said the State statute actually says "the practical difficulties shall include,but are not limited to,
the access to the sunlight." He sees this as discretionary and said they have arbitrarily come up with the
70% and that seems to be for the fire control, so if they are able to still do the fire control he does not see
any reason why this arbitrary number of 83%would not be acceptable.
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McCutcheon said one could argue that just because of where we are located north in the northern
hemisphere that we have inadequate access to the sun. Being in Minnesota and that far north in the winter
it is the access to our sun, he thinks they can all agree,that is inadequate. Going forward,the City will
see more of this and the challenges and will have to walk before they run. This situation is not a big ask
and he is for it.
Erickson said of the various solar applications received to date,this impressed him as perhaps the best one
for a number of factors. One, the placement of this building on the roof and in relation to this property and
relation to the neighbors,the neighbors will not complain about how it looks. Also,being on the roof is
desirable to being on the ground and also reduces any temptation to cut down trees. He noted the
southeast placement of this roof is fortunate,because Frank Lloyd Wright had thoughts on passive solar
and recommended to his students that they always place their walk out buildings with most of the glass
facing southeast. His reasoning was that in that arrangement they would catch the morning sun to warm
the building and as the day wore on,the sun would swing around to the west and there wouldn't be as
much solar buildup through the window. He feels very comfortable in supporting this application.
Chair Ressler noted perhaps this is an opportunity for the City to look at what their limitations are,why is
it 70%, is it because of fire safety and has that been addressed or mitigated,then that could be an
opportunity to revisit what those rules and regulations are for. However, it is his interpretation of this
variance would be placement for solar panels with accessibility to sunlight,not increasing the available
percentage of what has been allotted in the City code. He personally thinks that it is honorable to want to
get to a net zero as far as sunlight accessibility goes and he does not dismiss that. He looks at it two
ways: either the City needs to increase the allotted amount of percentage of coverage, or they need to
stick with what they've got because 70% is the rule and he does not see a reason in this case to go above
and beyond it just because it is aesthetically not imposing. If nothing else,perhaps it is an opportunity to
research deeper as to why that 70%number could not be increased.
Bollis asked Mr. Buechel in designing these systems, in the standard for this to design it for 100%, or
110%, 120%,or something like that.
Mr. Buechel said it depends on what the clients are looking to do. Some clients are trying to maximize
their return on investment; depending on the utility there are different rebates,tax credits, and it is entirely
based off of location,what utility they have, their property,but yes, in general the goal is to design
complete offset of electricity for most projects.
Bollis asked in that design,do they accommodate for the panels deteriorating over time; do they
overdesign in order to offset the 100% 10 years from now.
Mr. Buechel replied no, it is based off the wattage of the panels because theoretically they would not
deteriorate. He noted if there are newer model panels and a client wanted to remove what they have to
get their system higher wattage based on technology improvements, they can do that, as well, and remove
and recycle those panels.
Kirchner asked with this system, is there any issue with the amount of sunlight it will capture or is it
logistics of how many watts each panel is in order to be able to get to the capacity to offset the power
usage.
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Mr. Buechel said they are using one of the highest wattage panels that are available on the market for this
project, so it is certainly the access,not so much the difference in panel size.
Kirchner said it has to do with how much sunlight those panels are receiving in order to generate the
amount of watts they do, or how does that work.
Mr. Buechel replied yes,the panel choice and the design is based to off-set 100%of the electricity bill.
With their yearly usage,this system should produce what their electricity consumption is forecasted to be.
Kirchner said in order to accomplish that,they need to go above and beyond the 70%up to the 83%.
Collin replied that is correct.
Libby moved,Gettman seconded,to approve LA20-000069,4760 Bayside Road,Variance as
applied. VOTE: Ayes 5(Bollis,Erickson,Gettman,Libby,McCutcheon),Nays 2 (Kirchner,
Ressler).
2. LA20-000070 BOYER BUILDING CORP., 3145 NORTH SHORE DRIVE,VARIANCE.
STAFF: MELANIE CURTIS
Brian O'Connell,Applicant,was present.
Staff presented a summary of packet information. Ms. Curtis noted due to the unique nature of the lagoon
shoreline pushing the northern neighbors' home further from the lake than the other neighbors on the
shoreline,there are practical difficulties affecting this property. She noted Exhibit G in the packet is a
supportive letter from the neighbor to the north. Staff recommends approval of the requested variance
based on the support and configuration.
Kirchner asked regarding a photo onscreen that shows the survey and proposed addition;Ms. Curtis had
mentioned none of the proposed addition will go further lakeward than the existing home and asked if that
is a staircase shown.
Ms. Curtis said yes,that is a stairwell.
Kirchner asked how much farther than the front of the house that will extend.
Ms. Curtis said she can measure it and get back to him.
James McNeal, Architecture and Design,IMS Building 275 Market Street,Minneapolis,noted he worked
on this house between 12-15 years ago and had to go through a variance process;having the lagoon is a
problem. If one imagines how people perceive things, there is an illusion and they connect the dots. If
one was on a boat in Lake Minnetonka looking at this property, they would look at the houses and expect
to see them all kind of lined up. All of a sudden there is this lagoon with a narrow channel that takes one
into the lagoon and he stated they are not doing anything that is opposing that or losing any design intent
for the setbacks and sightlines. The tree line from the house to the right is already blocking that particular
person's view and that person has already approved this design and does not feel like it affects. Mr.
McNeal thinks it is a reasonable thing to ask as long as they stay within the setback that is there,they
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should be able to change a deck to a screen porch, or put a roof over it, or make it a room or dining room
as the client wants to do. He thinks this is a reasonable request and they are trying to do their best to
maintain the intent of the City's laws.
Gettman asked regarding the staircase; he appreciates Mr. McNeal's candor that they are trying to keep
within the same footprint but how did the staircase end up going outside of that.
Mr. McNeal replied mostly because the stairs are at a sharp angle and it immediately goes down. The
grade is raised up there to begin with, so sightline-wise, it really is an insignificant portion. For all
practical purposes,they do not need the stairs,but it is an ideal.
Gettman asked if there were stairs there before.
Mr. McNeal replied in the affirmative;there were stairs there before from the existing deck.
Chair Ressler opened the public hearing at 6:38 p.m.
Chair Ressler closed the public hearing at 6:38 p.m.
Chair Ressler asked Ms. Curtis on slide 17 of the combined file it shows the setback line, taking into
consideration the lagoon and his question is if that lagoon was not there, the average lakeshore setback
would be more intensified so the lagoon is actually improving the situation or is he reading it wrong.
Ms. Curtis replied if the lagoon was not there,the house would likely be in this area [noted onscreen], as
they would not build back here [noted onscreen] as a choice.
Kirchner asked on the survey,there is a curved-dashed line running under the stairs and asked what that
is.
Ms. Curtis asked Mr. McNeal if that is landscaping.
Mr. McNeal answered it is a grading line.
Kirchner noted the stairs do appear to extend forward lakeward of the home and that would be the only
concern he has with this that they would be allowing the stairs to go further lakeward and worsening the
situation from what it already is. Based on the stairs he would not support it,but other than that he is
generally supportive of it.
Chair Ressler said the only concern he has is with the lagoon there the neighboring property is rather
limited for its view. It certainly is helpful that the neighbor is supportive of it and he asked if 3135 North
Shore Drive is the letter of support.
Ms. Curtis replied that is true.
Chair Ressler noted that certainly helps. Average lakeshore setback versus lake yard setback versus side
setback is one that the Planning Commission has been generally agreeable with in the past. In situations
like this it is difficult to have everything fit into the boxes with the undulating shorelines. Those are the
only concerns he has.
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McCutcheon said they are so experienced and see it so many times,they only have two angles they can go
for. He agrees the addition is not a big deal; for him, the deal-breaker is the stairs and noted they almost
look bigger than 10 feet. Not that it is a lot of distance,but when it gets closer to the lake that is when
they tend to put the block up. He would be in favor if they can get those stairs away from the lake in
some way.
Ms. Curtis noted a pillar onscreen.
McCutcheon asked if they could do an L stair design to keep it away from the lake a bit. He noted this
Commission is famous for being sticklers on getting close to the lake.
Chair Ressler noted the homeowner may have something to say.
Brian O'Connell,homeowner at 3145 North Shore Drive,noted he would certainly prefer to have a
straight-off stair because it is more visually appealing from the lake. He thinks they can work with the
builder and the architect to potentially grade that ground so they end it one stair higher. Right now they
are literally one foot beyond the existing boundary of the house; one could argue that the decorative
elements of the roof go beyond that on the top anyway, but he would certainly prefer that the stair be
straight as it looks better from the lake than an angled stair. However,there could be some things they
could do with the grading of that land to make the second stair become the bottom stair.
Gettman clarified the concern of the Commissioners and said it is not that the stairs are meeting the same
threshold as the rest of the house; it is the extending beyond what currently exists.
Mr. O'Connell said his contention is that his house has a certain distance from the lake,the farthest
structure to the lake as it exists; his asked if someone who owns an irregularly shaped house versus a
rectangular house, is he allowed to build into the rectangle area.
Gettman noted that is what they suggested they would not support,the squaring off to say they will meet
the farthest point. It is all the rest of that being squared off which ends up being a further intrusion of that
protected area. He said the old stairs are dotted on a drawing...
Mr. O'Connell said where it says the proposed addition onscreen,that is currently the deck and the new
deck will go where the stairs are right now,but it will not be as big as the old deck by design. When they
have a proper rise and run of the stairs coming down, they end where they end.
Gettman stated it is the lower level floor plan and asked Ms. Curtis to show it onscreen. He noted all of
those steps that are going straight toward the lake are farther out than the existing structure in that
location; it is not that the Applicant is squaring it off,the concern that the other Commissioners have
voiced and he shares, is that in that one corner,they are now extending it an additional 13 feet,roughly.
Mr. O'Connell said that is correct and he hears what they are saying. He is also going one tread further
than the columns of his house and noted he is limited to the right because of the lagoon setback and
cannot have stairs over there. The only place to put a stair on the deck is down the way shown onscreen.
He could have a deck with no stairs but he'd strongly prefer not to do that.
Mr. McNeal said having the straight stairs like that is less obtrusive to the view from Lake Minnetonka
because people are not looking at railings,but rather a simple cascading set of steps. Visually he thinks it
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works and as the owner said,they are not going out beyond the building and if one were to draw a line
from the back of the house one would assume it would be straight rather than jog. He understands the
Commissioners are going by rules,but the rules are set because of the inconvenience and that is what they
are talking about.
Chair Ressler said the rules are partially to protect the enjoyment of the neighboring properties and that is
why it is nice to have the supporting letter from the neighbors. However,that cannot be the
Commissioners' entire decision one way or the other but it does not hurt.
Mr. O'Connell agrees it is unique with this lagoon noted the neighbors at 3135 -from their house to the
water of the lagoon-is a lot shorter distance than from the back of his house to the shore on Lake
Minnetonka. If the lagoon was not there,the red line onscreen could potentially move toward the corner
of that house and his entire house would be behind it and there would not be a challenge. This lagoon
creates a challenge and he is trying to be as respectful as he can with the intent and agrees with the intent
as a lakeshore homeowner. However, that lagoon and with the house at 3135 so close to the water, it
poses some challenges.
Chair Ressler asked if there were any other comments from Commissioners. He stated he has heard the
concerns with the stairs,he has heard the Applicant state that if there is difficulty approving the stairway,
perhaps he would consider re-grading which would be part of the application,as well. What they need to
decide tonight is if they can approve as applied and if it's approved it will go to City Council to approve.
If it is denied,they will have to give feedback as to why it is denied so perhaps it can go to Council with
the feedback on what would be agreeable.
John Boyer,the builder, wants to confirm and ask that stairways are not able to encroach into the setback.
Ms. Curtis replied the deck stairway is part of the deck itself which is required to meet the setback. When
looking at average lakeshore setback, the stairs are obviously coming down from an upper deck; when
they allow certain elements to be within the average lakeshore setback,42 inches in height is the limit in
that area. Obviously the part of the deck coming down does hit that point at one of the risers and is not
over that point anymore,but it still needs to meet the setback as far as the code is applied.
Chair Ressler noted this is not a simple application,he welcomes further discussion and feedback,
because there are a lot of complexities with shoreline,the lagoon backing in, and he thinks they should
also take into consideration Staff recommendation for approval.
Bollis said in general he is in favor of it. He thinks the solution of adjusting the grading so the bottom
stair does not protrude past the point that the house already encroaches on the lake,he would be fine with.
He would say the Commission deny this with support for that change.
Kirchner clarified his earlier point that his concern is that last stair tread, which would be in line with
Bollis' recommendation for the grading to improve that. He asked Gettman if he is more concerned with
a lot of what would be filling in that rectangular space where the dotted line is that shows the existing
staircase at an angle.
Gettman said that is what prompted his concern,but he would be okay having it stop where the pillar
stops. It is back to the inching closer and closer to that lakeshore; with the average lakeshore setback it
makes it that much more difficult and prejudicial to the homeowner, but unfortunately that is what the
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Commission has been consistently dealing with. He would be supportive of it going up to but not
extending beyond the pillar.
Kirchner moved, Gettman seconded,to deny LA20-000070,3145 North Shore Drive,Variance as
proposed with a recommendation that the stairs extending beyond the front pillar be evaluated by
the architect,homeowner,and builder for further consideration.
Chair Ressler noted the motion is to deny and there was additional discussion that was supportive of the
application as applied with the exception that Kirchner would like to see the stairs end no further beyond
the pillar most lakeward. He added that he, too, is in favor of that. Of course,they do not want to amend
an application by any means as that is difficult to do on the fly. However,he would be in support of that
modification if that is agreeable to the Applicant before it gets to the Council.
Mr. O'Connell asked process-wise, if they make that modification,they do not need to come back
through this process again.
Chair Ressler replied yes and that is why they would not table it because if they tabled,then Mr.
O'Connell would have to come back.
Mr. O'Connell said they have work to do between now and when the Council sees it.
Chair Ressler said yes, and that allows the Applicant to continue on with the process.
Erickson would not support denial at this time, he thinks this discussion relevant to this highly unique
property with the lagoon and channel leads them to have a neighbor with an extreme setback and it is rare
that they get that type of setback. He stated there is a very high uniqueness factor in this location which
supports the practical difficulty. Erickson thinks the whole discussion points out the challenge they have
in regulating average setback and they have had discussions on it before; last year they talked about
changing the formula. In spite of all that,they still have a fair number of variance requests, and initially
the Commission was tasked with trying to cut down on variance requests. The reason they have this
problem as a City is that the shoreline is highly irregular in many places and the average setbacks works
easy-peasy as long as there is a straight piece of shoreline. However,the more nature deviates from that,
the more challenging it is for the Commission to fairly regulate what is built next to it. He thinks this is a
highly unique situation where the neighbor is not complaining and a highly reputable builder who has
been in this area for many decades, as well. For those reasons he would support as approval and if the
motion remains as denial he will vote against that.
Libby would tend to concur with Erickson, not to read anything additional into the narrative from the
Staff,but he thinks the Staff looked at this from a perspective. While he strongly supports the uniformity
of the City's ordinance and the use of the average lakeshore setback as a uniform denominator of how the
Commission makes these decisions,he thinks that even though the lagoon is contiguous and is a portion
of the lakeshore,he agrees with Erickson that the unique circumstances that the lagoon is separate from
the primary lakeshore itself warranted the decision of the Staff to approve this. He would tend to support
the Staff's decision before he would support any other Commissioner's recommendations.
Chair Ressler clarified to Mr. O'Connell that he can take these plans to the City Council as they are
regardless of whether the Planning Commission approves or denies. Ms. Curtis can help explain those
options, as well. If there is a friendly amendment they wanted to make,they could have both sets of plans
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ready for that modification if it so goes that direction. He does not want to take public time talking about
those options but at least wanted to clarify and simplify. He appreciates the comments made here and
thinks the Staff recommendation has some weight to it, as well. He thinks the friendly amendment to
make sure that the stair tread does not go further encroaching upon structure that is existing to the
lakeshore seems agreeable to the Applicant, and seems agreeable to the spirit of what the rule is in place
for. He thinks they are accommodating by allowing additional structure,just not going further than the
structure that is here. He appreciates that going on the record for feedback to the Council.
Ms. Curtis had a point of clarification. She said that the motion is to deny as proposed, but for the one or
two stair treads, is the Commission generally speaking of an approval. She wants to make sure the
Applicant understands that it is the stairs that encroach past that pillar that the Commission is not
approving,but the rest is agreeable.
Kirchner clarified on that,yes,his concern is essentially that final stair tread that appears to extend
beyond. His motion for denial is a direct result of the one or two stair treads. Aside from that, in his
motion,he is overall supportive and would recommend approval if those stairs do not extend beyond the
furthest lakeward portion of the home.
Erickson continued his discussion and said he is uncomfortable in principle of generally denying a
proposal that they all agree they are mostly in favor of. That does not seem transparent to him, and seems
more manipulative. He would be much more comfortable with a motion to approve and then if they want
to add conditions to the approval, he would be open to that.
Kirchner asked how approving and adding conditions is any different than a denial and adding a
recommendation to that. He said it seems just as manipulative to use words in that manner.
Chair Ressler noted he thinks they have gone down a rabbit hole before, because the Commissioners are
not here to change the application on the fly, rather they must rule on what they have in front of them
today. He thinks the comments and feedback are helpful.
Mr. O'Connell said as a homeowner in this process, the optics appear to the homeowners as more positive
to have an approval with conditions than a denial. They could be two different means to the same end,
but optically, the Council seems more amenable saying you can do this but you have to fix this one thing,
versus you can't do this until you fix this one thing.
Chair Ressler does not entirely disagree with Mr. O'Connell,the Commission has been given some
direction in the past—and it is nice to have the Mayor in the room—because he is going to lead the next
meeting, so he is definitely hearing the feedback. The Commission has had feedback in the past that
redesigning applications that are not in front of them become very difficult as far as what the
recommendation is. This is very cut and dry; it is going on the record as to what they would be agreeable
to and if this motion carries to deny, it is essentially doing it the same way, it is allowing Mr. O'Connell
to take that feedback and propose it as that feedback into the Council.
VOTE: Ayes 5 (Bollis, Gettman,Kirchner,McCutcheon,Ressler),Nays 2 (Erickson,Libby).
3. LA20-000071 JACOB STICKNEY, 15 STUBBS BAY ROAD NORTH,VARIANCES.
STAFF: LAURA OAKDEN
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Staff presented a summary of packet information. Planning Staff recommends approval of this
Application and finds the existing lot area and width as practical difficulties to support the variance. Staff
finds there are inherent practical difficulties with that substandard lot for the new home. The Applicant
submitted an acknowledgement signature from the neighbor as Exhibit F. Staff recommends approval of
the lot area, lot width, and side-yard setback variances.
Gettman asked when this was actually subdivided, and whether this is the same owner that was part of the
subdivision that created this situation where they cannot build on it and therefore have a variance.
Ms. Oakden replied no, she believes there is a new owner to the property and this lot has been in
existence for quite a while as a vacant lot. She does not have the date of when the lot was created.
George Stickney, 340 Peavey Road, said to back up a bit,he and his son Jacob are representing the Dunn
family. This property has been in the family for 50-60 years or so.
Chair Ressler told Mr. Stickney they would close up a few questions with Staff and then they could hear
from him.
Ms. Oakden noted it sounds like she was speaking inaccurately that the Dunn family is current owner and
she will let Mr. Stickney finish speaking to that.
Libby asked if this is outside the MUSA and does not have City sewer available to it.
Ms. Oakden said that is correct.
Kirchner noted in the presentation,Ms. Oakden had mentioned that the setbacks proposed here are similar
to neighboring properties. He asked roughly how far off the lot line those are.
Ms. Oakden said the neighbor to the north has about a 16 foot side-yard setback and about a 45 foot front
yard setback. This Applicant is proposing a 50 foot front yard setback so they meet that exception, and
are proposing a 15.5 foot setback to the north, and an 18 foot setback to the south.
Kirchner asked if there are any homes to the south of this one.
Ms. Oakden replied they do abut a property and showed a map onscreen. She noted there is one home to
the north but no other homes in the area. This property has a flag that abuts the vacant lot they are talking
about and then pointed out Bederwood Park.
McCutcheon noted this is not unusual; there are many lots on this road that are skinny like this.
Ms. Oakden replied lots that are very narrow, that is correct.
McCutcheon said they subdivided them wrong a long time ago.
Mr. George Stickney, 340 Peavey Road,Wayzata, is representing the Dunn family trust. When the
family first met with Mr. Stickney and his son and said they really want to sell this lot,their mother has
owned it forever and they have never built on it. The family has grown up in Orono, at least 60 years it
has been like this, a nice lot, and a vacant lot. To sell the lot, he told the family he is really not going to
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sell the lot until he gets this settled at the City level,as he needs approved variances. It is a 1.22 acre lot
that is in a 5 acre zoning district, as Staff reported; normally with 300 feet of width, a 50 foot setback is
acceptable. He said if he was to follow the strict guidelines of the ordinances,he noted onscreen the 100
foot line is right about there [noted onscreen], and said there is about 50 feet by 23.77 feet between the
septic to build a house. He stated that will not sell to anybody they know, so they met as a family for the
trust with Ms. Curtis and Mr. Barnhart and said they wanted to propose something that is fair. He noted
all 4 of the lots on Stubbs Bay Road have a little difficulty being able to be guided with 100 foot front
setbacks,they all fail that, and setbacks that are 50 feet on the sides...he stated every one would not be
acceptable in today's standards. He asked what would be reasonable and suggested 50x15 and Staff
supported that. Mr. Stickney noted they have a valid purchase agreement with a client that has brought a
nice house plan together, and the property has an acceptable septic system, and a survey, and it is a great
lot. It will be a nice improvement for the area,but they are not asking for anything more than what is
acceptable to the neighbors to the north, and what is needed for this property. He said he can also talk
about the flag lot on the south,he knows those people,too, and they will probably never use a driveway,
it is a non-issue as it would be about a$200,000 driveway and tree removal...he said they enter the
property on Watertown Road.
Chair Ressler opened the public hearing at 7:14 p.m.
Chair Ressler closed the public hearing at 7:14 p.m.
Chair Ressler noted it is in a 5 acre ordinance and it is a 1.2 acre actual lot,there are no problems with
front and rear,and the sides both to the north and south are the issues. He said 50 feet is the ordinance,
they are proposing 15.5 and 18.2. Deliberation is whether or not that is okay and if that is in the spirit of
the neighborhood.
Mr. Stickney clarified they are proposing 15 on both sides; the existing plan shows a house that is 18.2
and 15.5. They are proposing that this be guided as a vacant lot so someone could buy it and the buyer is
proposing a house that fits like that.
Ms. Oakden said the application as presented is this, and they can only act as the volume and the structure
that is shown within those encroachments within the setbacks. They cannot set a new setback for this
specific property.
Mr. Stickney said the application was to create 15 foot side setbacks and that does not mean the new
owner should have to create a house that hits both sides of the setback. The new owner wants the
flexibility to put a house that fits in there. He said this makes the sale of the lot sellable.
Chair Ressler said the proposed survey would have needed to have the proposed house within that 15 feet
on both sides and it looks like the survey on record appears it is 18.2 on one side and 15.5 to the other.
Mr. Stickney said yes,that is where it sits on the lot,but it sits within the new approved 15 foot side
setbacks. He is just clarifying that.
Barnhart said they are kind of in a dicey situation because Staff grants a variance based on a proposal and
based on the practical difficulties that is proposed. They generally cannot apply practical difficulties on
spec, so that is why they have to link it to a plan, which is the plan in front of them. In the future,
assuming the Planning Commission approves this plan,this is the boundary and if there are some
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deviations from that, it may require a variance depending on where those deviations are. At least there is
a starting point, but Staff can't recommend approval of a variance on spec.
Mr. Stickney noted the owner of this plan and the buyer of the lots...that is their plan, and they are okay
with it where it sits. He said, let's say they wanted to add a little deck or a stairway; 15 foot side setbacks
would be appropriate for that whole side of the street because all of them are encroaching on the front
setback and 2-3 of them are encroaching in some manner the 50 foot side setbacks.
Chair Ressler said what they have to do is to approve or deny the application as it is submitted and the
application that is submitted has a 15.5 foot to the north and 18.2 foot to the south. Any further
encroaching upon would probably bring them right back to the drawing board.
Mr. Stickney said he is fine with that, so is the new owner, and the family.
Dennis Krump, 25 Stubbs Bay Road, is the neighbor to the north and said as far as that 18-foot setback,
when he talked to the gentleman earlier with the 15-or 15.5-foot setback,he was assuming that would be
on both sides, north and south. From his understanding,the owner had agreed to use the 15 or 15.5 foot
and move the house to the south, so they would end up with 18 on the north and 15.5 on the south. That
is what he would like;there is no reason to have the house closer than it has to be. He agrees they need at
least a 15 foot setback, but he would much rather see the 15 on the south and the 18 on the north.
Chair Ressler stated that is good feedback and of course, the Commission must decide on what is in front
of them.
Mr. Krump said if the owner agrees to do that, are they starting over from scratch again, or like the last
person with the stairs and they could just remove one tread; can they do the same thing here.
Chair Ressler said if this is approved,then they would be limited to what the specs are of the proposed
survey. However, they could certainly flip it between now and Council with the same proposal and ask
for that amended version if they wanted to. If it gets to Council and this plan is approved and they wanted
to change the setbacks, it would be starting all over again with a new variance.
Mr. Krump asked what about like they did with the steps.
Chair Ressler replied they would deny it and said they have not gotten to that point,but if they approve or
deny it,the Applicant could come with an amended version to the Council that way. Using the steps as
an example, if the Commission approves the application as submitted and the application decided they
would like to change it the other way around,they could do that. If the Commission denied it...it would
be the same story.
Kirchner asked to clarify that Mr. Krump is the neighbor to the north with approximately 16 feet.
Mr.Krump answered in the affirmative.
Kirchner said if he understands correctly, as proposed with that 15.5 feet towards his lot line,Mr. Krump
is not really supportive of it, he would rather have the 18 feet on the north side. Kirchner asked if that is
correct.
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Mr. Krump replied that is correct.
Erickson pointed out it makes a lot of sense to flip it the way Mr. Krump is suggesting because on the
south side is the public park with a big soccer field and no neighbors.
Deborah Krump, 25 Stubbs Bay Road,brought up the other road that nobody is using and said why can't
they figure out from the people that own that property, if they can make that lot bigger and go more
toward the park to give the Krumps some space because this is really close. She said Mr. Krump has
maintained this property for 35 years for the Dunns and to turn around and have somebody sitting on their
deck with them is kind of tough. She said if the Applicant wanted to look at something like that, it would
be huge for the Krumps. She noted it is a crazy request,but she is going to request it.
Chair Ressler appreciates her going on the record and of course the public hearing has been closed,but
they can put that in to note because he thinks that is important to know. He said if Ms. Krump wanted to
be more formal, she could write a letter of support or what would be agreeable to them to put in front of
the Council when they entertain the application, as well.
Chair Ressler asked Ms. Oakden if it is correct that as applied,they have 15.5 foot setback to the north,
guided for 50 feet; 18.2 foot setback to the south, guided for 50 feet.
Ms. Oakden replied that is correct.
Chair Ressler noted that is as applied and is what the Commission needs to rule on today.
Ms. Oakden replied yes, they must review as the application sits today in front of them.
Libby said this could be one of their tougher ones in a while,but he welcomes a challenge. There aren't
really too many options, but the idea of the fact that there is a plan, an active transactional motivation—
motivated buyer, motivated seller—a house plan that should be able to fit in to these setbacks...it prompts
him to be in favor of this. If the plan does not vary, and he does not think Mr. Stickney plans on a bait
and switch because he never has in the past. He would tend to be in favor of this and agree with the
recommendations of Staff.
Kirchner agrees,he was in support of it and believes it to be appropriate for the area,however,hearing the
discussion from the neighbors to the north and that the neighbors to the south could never build on that
portion of the flag lot, as they would be right back before the Commission for the same discussion. He
does not think the house is overbearing or that it is an unreasonable request. However, knowing that the
neighbors to the north are not supportive of it,he does not believe that he can approve it knowing that
there are other options on the table. He noted he is not here to redesign the plan or survey so he will leave
it at that.
Bollis is in favor of it,he thinks it is substantially similar to the other lot to the north. He is not sure what
else they could approve to be built on that lot. Obviously the proposed area,where it would fall under the
setbacks, cannot be done, so he thinks it is very consistent with the neighborhood. He does not think the
Commission can go above and beyond looking at other options as far as purchasing other peoples'
property to make it conforming; they just have to look at it how it is today.
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Erickson is in favor of it,too, and would be in favor of approving the variance and perhaps they might
specify that one side yard could be not less than 15.5 feet and the other side yard could be not less than
18.2 feet. With the stipulation that the Commission will not specify which side yard is which and that can
be determined at the City Council meeting.
Gettman said they actually have to do that approval; it wouldn't be that the Commission could give that
variance like the one applicant was suggesting. He is also confused as to why they are back to
readdressing the variance. He would suggest that they look at flipping the house 90 degrees; so the
elevation obviously is the issue but either way they will have to drop off. If they set it closer to that 16.5
foot narrow driveway that cannot be used for a driveway that would obviously give more space for the
other neighbors who are here testifying. As mentioned,they are not here to redesign anything but he
would be totally against this as proposed.
Libby knows the public hearing is closed but said as a point of information,he is curious about some of
the remarks that were made by the neighbor because the people have lived there for decades and their
information and experience of lifestyle living so close to the subject property. He would like to clarify
what the additional road is or the other property that was noted also by Bollis, and there is an eyewitness
neighbor that lives here and he can even see Mr. Stickney questioning the statement. Libby said he is not
questioning the validity of the statement,but he is curious as a point of information,with Chair Ressler's
permission,to ask the neighbor if they could more clearly explain this unused road after decades of
maintaining the property. How could that possibly be a problem solver for this situation.
Chair Ressler asked to see an overhead to see if that gives some clarity.
Ms. Oakden said she thinks what is being referenced is the roughly 16 feet right here [noted onscreen]
and is connected to a parcel that is a flag-shaped lot. She is sure the intent was perhaps some sort of
driveway; it has never been approved and is not a right-of-way or dedicated outlot by any means. It is
private property.
Chair Ressler said to clarify for Mr. Libby,he thinks what the neighbors are referring to is, if they are
going to get tighter on one side than the other,why wouldn't they go to the area that is not really being
used.
Kirchner noted that is his comment, he is not here to endorse trying to subdivide lots and things like that.
It was merely, if they can push the 18 feet to the north to give where there is an existing home a little
more space,and pinch a little bit on the south where there is arguably never anything going to be built on
a 16 foot flag. He said that would be something he would be more supportive of than as proposed here.
Libby said they really don't know or understand what the ownership of this other portion is,if it is a City
easement or if it is privately owned by an adjoining property.
Gettman noted Staff has said it is privately owned.
Ms. Oakden said it is part of that parcel.
Libby said this again falls into that category that the Commission does not want to change the
applications but he is just bringing it up as a point of information or clarification. Perhaps for the
representative of the property owner,the developer, and the builder, acquisition and subdivision on
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something like this to solve this kind of problem is very, very common. He has done it himself. To Mr.
Kirchner's point, it is really just adjunct to his own,but it is simply a point of information,they cannot
direct in one way or the other. He is glad they had the neighbor here that could speak to it, and Mr.
Stickney here to hear it.
Chair Ressler does not see any reason why they could center or at the very least have equal distances
between the two lot lines,there is structure on one side and not on the other. He would love to see the
property centered or even if it was proposed to be inverted. He does not necessarily know that he would
be opposed to the application as proposed; he does not see any reason why,besides what has been
mentioned as far as one setback from the other. He noted they have approved these projects before, and
he generally follows Staffs opinion on this one recommending approval,he definitely would recognize
the suggestion of giving more space and taking up some of the space from the north to the south as
constructive feedback that might be helpful for passing with the Council,if this were to pass. He is not
opposed to the application as submitted.
McCutcheon asked to confirm that deck to the north is 15 feet from the lot,as well.
Ms. Oakden clarified the neighbor right here is roughly 16 feet.
McCutcheon said to him, it is private property to the north and the south and you must be fair, so perhaps
they pick a minimum, so 16 feet from where the neighbor to the north is and 16 feet as the minimum
setback north and south. He knows they cannot redraw it, but what they're really saying is the proposed
house envelope instead of 16.5 is 16. He said it seems silly to say, but just to be fair, as the neighbor to
the south has just as much right to say they wish it was 2-3 feet to the north.
Chair Ressler said perhaps this is an opportunity for the Commission to have a workshop discussion as to
how they should be handling these. Right now,he thinks the feedback from the City is that they want the
Commission to rule on what they have and provide feedback so it can be taken for review to the Council
and it does not get held up but they know exactly what they are ruling on. Based on that, Chair Ressler is
hearing some Commissioners are opposed to the application as submitted and must be mindful of what is
in front of them. There has been some good feedback regardless of the outcome as to what would be
agreeable.
McCutcheon said it would be good to have documented evidence of the neighbor to the south's input on
this. It is a unique situation where it is a skinny lot and there are not a lot of options for the future
homeowner to have and the Commission is trying to avoid problems in the future. If they only have half
the equation it is tough. He asked if Staff went to the neighbors asking for input.
Ms. Oakden noted they mailed postings.
Mr. Stickney added two impacts. First, regarding the neighbor to the south with the flag lot,he sold a
relative of their property and the neighbor was thinking about selling. Mr. Stickney said what are they
ever going to do with that flag, and the neighbor responded it has always been there, it is solid trees right
to the soccer field. He told the neighbor they will never build a road on that, as it is a flag that is
environmentally nuts...he told them it would be $200,000 to correct the soils,remove all the trees, and
this plan right now fits on here really well. Moving it a foot and a half south,has an impact on trees.
This should be an approvable plan in most every possibility and he can't see any reason it would not be
totally approvable. Given a variable,he likes some of the comments; let's make it so they can come back
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to the Council if they want it to center in there. He does not think the sellers will care,but the buyer
would probably be amenable to that and that would help everyone.
Chair Ressler asked for a motion one way or the other based on what is applied.
Libby moved,Erickson seconded, to approve LA20-000071, 15 Stubbs Bay Road North,Variance
as recommended by Staff.Ayes 4 (Bollis,Erickson,Libby,Ressler).Nays,3 (Gettman,Kirchner,
McCutcheon).
4. LA20-000061 CITY OF ORONO TEXT AMENDMENT RELATED TO EXPANSION
PERMITS. STAFF: JEREMY BARNHART
Barnhart does not have a text amendment for the Commission to react to; it is more of a fact-finding
mission in terms of what they would like to see and gives him an opportunity to introduce this concept.
The Commissioners review a lot of variances from month to month and in all of those applications,the
applicant has to prove a practical difficulty and other standards that are imposed by City ordinance and by
State statute. In the City,in terms of reacting to a variance,it cannot really lessen those standards, it must
be as strict as the State in terms of variance standards. He noted one area community has established
what they call an expansion permit; if a project fits their criteria for an expansion permit, even though it
may not conform to the setback requirements,the City Staff can approve it. If it can be considered an
expansion permit but is perhaps above the level of what the City Staff can approve,the Planning
Commission and/or City Council can approve that permit using its own standards that the City
establishes. The City of Mound uses this,with relatively small improvements to non-conforming
structures or small improvements that are non-conforming to the applicable code, City Staff or Council
can approve and then apply its own quote-unquote"hardship."Not practical difficulties,per say,
established by the State,but by its own criteria that the City can impose. This is an interesting way to
avoid the prolonged process of a variance; as the Commissioners know, a variance takes at least 6 weeks
if not longer to get through the public hearing process and that is from the date they make an application.
Often, Staff works with applicants for months in advance on advising an application that would meet the
requirements of the City Council and the Planning Commission. An expansion permit has an opportunity
to change that process,where the Council or Commission establishes what they see as reasonable
improvements that kind of skip that formal process. They can also establish what the criteria would be to
evaluate those; he does not think Mound uses a public hearing process, it is a public meeting, so that takes
out a lot of time involved in the review of an application. Of the 6 week process,about 4 of those weeks
is waiting for the public hearing; the City needs to post a postcard,post a notice in the paper a week
before it goes into the paper, and then it is a 3 week window until the meeting is held and Council usually
sees the Planning Commission's recommendations about 3 weeks after that. Barnhart wants to talk about
the framework in mind, and what does the Planning Commission think is a reasonable amount of
improvement that could be handled this way. Obviously projects that do not meet the criteria established
would require a variance and they'd go through that process again, so this will not get rid of all variances,
but the idea is to try to chop off some of the easier ones,perhaps,that may not have a huge impact. He
says that with a bit of a caveat—any project has a potential to have impacts on a neighboring property
and/or capture the attention of the neighborhood,regardless of how big or how small. The Commission
has seen that,where a relatively small project has filled the room with a number of folks that are
interested in it. Conversely,they have seen huge projects that generate no public input. That is the
challenge in devising this draft;to design what kind of box is the Commission willing to put a project in
so they can try to capture or reduce as many variances as necessary. Barnhart noted in his memo,he
provided the Commission with what the City of Mound does as that is the only one he could find in the
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local area that uses this type of process. He is looking for feedback from the Planning Commission on
what type of projects they would anticipate to be minor; what type of projects would be considered major,
and major ones would be reviewed by a group above Staff level,whether it is the Planning Commission
and City Council or just one or the other...they can design that process. Barnhart noted they have the
control in terms of how they design this process or program so they can establish what fits,what type of
project is included, what type of process of review,what the criteria are and whoever reviews this would
apply to a project. He wants to talk about what a minor amendment is,which would be a project that the
City Staff would approve and through the review and application of the criteria. The City of Mound uses
a roof modification that increases the usable area within the same foot but without adding a full story, so
that might be changing a roof pitch to add some usable space or change some dormers to create more
usable space in an existing structure but are not adding on to the full structure. Another option is
basement expansion within the structure footprint, for example, someone may have a porch and they want
to dig down a basement level;that is not really impactful from a visual standpoint but is an expansion
which would normally trigger a variance. Barnhart noted another option is a one story addition to an
existing upper floor of a non-conforming structure that does not expand the footprint of the non-
conforming structure. In this scenario,they have a single story house and are adding on a second floor
that is less than 500 square foot,adding a relatively small upward expansion into the roof area.
Chair Ressler clarified it is not adding footprint.
Barnhart replied it would not be adding on to the footprint,but adding volume into a space that does not
have volume now and the Commission has seen the number of variances. Another option is a one story
addition to the footprint of an existing non-conforming structure that is less than 250 square feet...a small
expansion. He noted the City of Mound uses these as a way to allow for relatively small modifications to
an existing structure that maybe the practical difficulty standard might be a bit tough to match. For
example, one might have a principal structure and want to add a 250 square foot room onto that; what is
the practical difficulty. Again,he is speaking very generally on all of these but that is the challenge, how
do they apply the practical difficulty standard for some of these relatively small changes when they likely
have a principal structure already that is in use. Barnhart mentioned those four as the general context of
what they are thinking in terms of the level of improvements and he would like to talk a bit about if there
are other things they might consider. When thinking of setbacks, they think automatically about front
yard,rear yard, side yard setback; historically, it seems the City Council has been very cautious about
expanding into the lake yard and lately been very cautious about expanding in to the average lakeshore
setback. He would suggest that if they want to adopt some sort of criteria,those expansions may not be
minor expansions. Regardless of the size of the improvement, if someone wanted to expand into the lake
yard that would not be considered a minor amendment and Staff would want the decision makers to make
that decision,whether it is Planning Commission and Council, or the Council. He said another area they
can create is what areas are they open to changes; he noted the variance on Stubbs Bay Road where the
Commission approved a recommendation to move a new project into the side yard setbacks and there was
already an exception for the front yard setback and this type of process could allow improvements into the
side yard,but if it was a lake lot,not into the lake yard. The City of Mound does not include it but
Barnhart thinks it would be appropriate to have some expansions of hard cover in certain areas. There is a
provision in Orono's code that if they are non-conforming in hard cover,the applicant can relocate that
hard cover elsewhere as long as it is not in the lake yard. If there is non-conforming hard cover in the
lake yard, they cannot move it to another non-conforming location in the lake yard and that is something
they can talk about in the future. Moving on to the criteria, Barnhart said the City of Mound uses five
criteria when applying the variance. 1)Is the proposed expansion reasonable? And then they look at the
impact for the neighborhood. 2) Is the proposed expansion unique to the property? These are somewhat
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mirroring of the variances but are not exactly the same. 3)Is the proposal exceptional or extraordinary
due to circumstances not at the result of the applicant? The applicant is not creating the hardship or the
uniqueness to the property and again, Barnhart noted Orono uses these criteria quite a bit in their variance
applications. 4)The expansion would not adversely affect or alter the central character of the
neighborhood? 5)The expansion requested is at the minimum needed to grant relief? This is what
Mound uses; they have an ordinance in place and this spoke a bit about the Commissioner's comments
about the solar ray variance...is the 70%the maximum and they were asking for 83%. Those are the kind
of criteria they could put into a variance process like this. He is anxious to hear if the Planning
Commission has any red flag comments and he would like to receive those. Perhaps they can schedule a
work session in January or February to articulate those and put them together in a draft that the
Commissioners can react to early next year. He wanted to introduce this to the Commissioners before the
holidays so they can start thinking about this as it is relatively unique for Orono and may be a good
opportunity to alleviate some of the process and the Commission's workload and alleviate some of that
through a different means.
Gettman said the only thing that seemed to be missing was the earth moving, and maybe there is an
opportunity for Staff to have some flexibility on the earth moving; if a certain amount of dirt is required
to bring in or remove from the property could be added to this list.
Barnhart noted it could be added and they changed the grading and land alteration process quite a bit, but
he does not think they will see as many of those interim use permits as they would have in the past.
Gettman said other than that, this is commendable.
Kirchner asked if they adopt some criteria, what would be the lifespan of this, he would assume it would
be much like any other ordinance and would go into effect until at some point it is up for review.
Barnhart replied if the Commission were to adopt an ordinance that incorporates or adds or creates a
process,that ordinance would be in place until they removed it.
Kirchner noted one of his red flags is that it would be a representation of this Commission that is
currently seated here tonight, and this Commission changes over time. He thinks putting a hard and fast
rule on something that is there until they receive some pushback or is up for review, or whatever the case
may be; he would struggle for this Commission to come up with the criteria,to suggest it and have it be a
direct representation of these Commissioners sitting here only.
Barnhart noted it would not just be the Commissioners,but also the Council.
Kirchner said it is the Council seated and the Planning Commission seated today that would come up with
those criteria.
Barnhart said that is the case for every ordinance they have ever approved—that Council and that
Planning Commission supported that proposal and it could be changed at any time in the future.
Kirchner said of the examples Barnhart gave from Mound, is there any idea in the last 6 months what
percentage of the variances the Planning Commission has seen would have been eliminated.
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Barnhart has not done that analysis yet as he wanted to get this out to the Commissioners first and that is
something they would provide as part of a workshop.
Kirchner said that would be helpful because part of the argument is that this would reduce the workload
and he would be curious to know the actual data behind that.
Barnhart cautioned regardless of where they draw that line,the next day they will get an application that
will be above that line. That is just the fact of the matter. He said it is a fair comment and he could
provide some analysis about how that would impact. He would also caution about using that too strongly
because there may be one...for example,there was an accessory building 1-2 months ago with a roof
structure. That likely would fall under this type of criteria.
Kirchner asked if that was denied by both Planning Commission and Council.
Barnhart replied that is correct, and clarified it was withdrawn. The Commission struggled with
approving it and the Council had the same comments. He would be cautious because they may have that
memory that"we didn't like this because the neighbor didn't like it." He does not think that was the case
here,but the Commissioners did not like it because it did not meet practical difficulty. This ordinance
would basically circumvent that requirement to have practical difficulty.
Chair Ressler said if Barnhart had asked them last month,this would be a lot easier to understand than
this meeting, as they had a lot of varying opinions and different results. The last meeting was the epitome
of saying 'why don't they have some of this in place' and Barnhart may be catching the Commissioners at
a rough time on this one. He thinks for example, a basement excavation—he does not think that would
eliminate any applications.
Barnhart said actually they have had one.
Ms. Oakden noted there was a porch that was an average lakeshore setback variance and was approved
and when they submitted for a building permit it showed that it didn't have anything underneath it, it was
just a porch upgrade. Then they submitted for a building permit that put a whole basement underneath
that porch which was all lakeward within the average lakeshore setback and they could not approve their
building permit without them going through a new variance process to ask for that additional space even
though it is all basement space. They decided to amend their plans to meet the variance approval and not
move forward,but it was a challenging process.
Chair Ressler's feedback is it sounds like an error on behalf of the applicant,not necessarily on Staff or
Commission. He does not know that it comes up often enough for the Commission not to want to look at
it. The roof modification,he thinks it was Casco and there was a split decision on that one; he was
completely okay with that roofline that ended up not passing. He thinks that is exactly why it's nice to
have the ability to deliberate it because there will always be mitigating circumstances, especially when
dealing with lake lots like tonight. He said Nos. 3 and 4 seem pretty reasonable to him and tonight is not
the time to come up with those numbers but rather to think about what those numbers might be,have a
work session in the new year and get a little more serious about what those numbers are. To summarize,
they are looking for what seems agreeable and then they can start nailing it down to what those numbers
and square footages might be agreeable to.
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Libby supports Chair Ressler's statement about the importance of a work session and said this is
becoming very familiar because a number of individuals spent quite a bit of time in recrafting and
redrafting and clarifying the 2040 Comprehensive Plan where the efficiency and more of the practical
matters of making some things a little simpler. Libby thinks it is commendable that Barnhart is thinking
and kind of carving a path for the Commission to discuss this but a work session would be the appropriate
time to hack through this. He noted Barnhart is carving out a path to discuss right now but there is quite a
bit of content and they could spend hours on this tonight, and he favors a work session and would be very
happy to come and go through that. He thanked Barnhart for thinking about this because the intent is to
try and take some of the burden of some of these somewhat cut-and-dried situations that perhaps the
Commission spends more time on that could be Staff augmented. Libby thinks it worked out well with
the Comp Plan to simplify and edify and was a great benefit to moving forward; he thinks there could be a
good benefit to this but the work session would be the appropriate time to do that.
Chair Ressler said the average lakeshore setback and lake yard setback would be probably the only time
they would not at least want to start with that.
Barnhart clarified,he would suggest that those would probably be major expansions versus minor
expansions. The difference is the minor ones Staff could approve and the major ones the Council would
approve. The reason he would not want to exclude those completely is that is a fair number of applicants
and he would want the opportunity to at least discuss that option with the Council.
Erickson commented regarding the criteria. Number 1 under criteria and the second one, absence of
adverse offsite impacts such as from traffic,noise, odors, and dust—he thinks traffic and noise are very
valid considerations. Odors and dust seems to kind of hark back to more of an agricultural use. He has
not heard of any neighbor complaining about either odors or dust.
Chair Ressler said Watertown Road.
Erickson said nobody does brand new gravel driveways anymore and especially if they are talking about
an addition to the house,they are not going to be looking to keep farm animals in there, so he thinks they
could scratch those. A couple others that might be worth considering for addition would be sightlines to
water features besides Lake Minnetonka could be storm water management ponds or other ponds,
wetlands, or conservation areas...anything that is considered a desirable view. Similarly, sightlines that
relate to traffic, like coming out the driveways, or sightlines with approaching traffic or pedestrians might
also be one to consider those elements as they are making a decision.
Barnhart said that is and will be helpful feedback. He will schedule a workshop in January,which occur
the hour before the monthly meeting. He can bring the Commissioners some text to react to.
McCutcheon thinks it would help speed it along in looking at what problem they are trying to solve. He
knows it is not fun to go through and mine a bunch of data,but to at least have a good store or perception
of the calls where Barnhart sees areas they could improve,which are somewhat outlined in the memo.
Extra examples would really help some of the decisions,because Barnhart is right, some of this does
seem silly,but they don't want to be unfair to citizens as to what the Commission might think is minor,
and give citizens the right to object to certain things.
Kirchner said to his point regarding the criteria that would represent this Commission and this Council,
his concern is that if they do it,and it could come up for review at any time and could be contested. When
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they come up with the criteria and say 'this is the expedited list that just gets passed and here it is over
here,' those things kind of disappear behind the scenes and he struggles to believe or see that it would
come back to a further discussion at a later time with a different Commission or Council. The things that
are before them they focus on and they see,but the things that happen behind the scenes and get
approved,the Commissioners do not know about and sometime down the road that has been lost track of
and things are just getting approved through this expansion permit that the Council/Commission seated at
that time may not see or agree with.
Chair Ressler told the Commissioners they need to spend the next couple of months to see what might be
some low-hanging fruit for this as a starting point and would not become an issue of concern that has
been brought up and come prepared with those ideas at the work session in 2021.
5. Update on November 9, 2020 Council meeting
Barnhart said the Commission saw 6 applications last month and those 6 were approved on consent as
suggested during the meeting, Commission recommended approval and the Council approved those.
There was also a discussion about a text amendment related to residential dock use so the Commission
will likely see some sort of amendment in January or February of next year that would change how they
regulate dock use. Currently, docks are an accessory use in all lakeshore lots with a statement about how
docks cannot be rented—he forgets the exact language—and there may be some traction on the part of the
Council to make some changes to how that is read.
ADJOURNMENT
Gettman moved,Libby seconded, to adjourn the Planning Commission Meeting. VOTE: Ayes 7,
Nays 0.
The Orono Planning Commission meeting adjourned at 8:08 p.m.
ATTEST: _
Jon Ressler, Chair
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