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HomeMy WebLinkAbout10-21-1985 Planning MinutesPLANNING COMMISSION MEETING MONDAY, OCTOBER 21, 1985 7:00 P.M. 1275 BROWN ROAD SOOTH - COUNCIL CHAMBERS (*)Asterisk items are considered to be routine items to be enacted upon by one motion by the Planning Commission under the Consent Item* on the agenda. Discussion will be held upon request. COUNCIL REPRESENTATIVE - Mayor Butler ATTENDANCE 1. CONSENT AGENDA* 2. 7:00 to 7:45 p.m. - Zoning Amendment SCHEDULED PUBLIC HEARINGS 3. 7:45 p.m. #973 Steven J. Ruce, 4625 & 4665 West Branch Road - Subdivision of a Lot line Rearrangement 4. 8:00 p.m. #974 Eric J. Christensen, 900 North Shore Drive West Preliminary Subdivision 5. 8:15 p.m. #980 Richard M. Keaveny, 3423 Shoreline Drive - Preliminary Subdivision ROUTINE LAND USE APPLICATIONS - ACTION ITEMS 6. #971 Mark S. Wasserman, 1045 Linden Lane - Variance - Public Hearing 7. #975 Everand Geyen, 3572 Lyric Avenue - Variance - Public Hearing 8. #981 Philip F. Kaley, 1395 Brown Road South - Variance - Public Hearing 9. #984 Joe Sawchuk, 4105 Watertown Road - Variance - Public Hearing ACTION ITEMS 10. #929..,. Lyle Rahn, 1146 Wildhurst Trail Second Review - Conditional Use Permit - 11. #959 George E. Johnson, 365 Old Crystal Bay Road North - Variance - Second Review 12.#967 & 968 John B. Idstrom, 2580 Fox Street - Preliminary Subdivision and Conditional Use Permit - Second Review 13. #972 Shaver/Tearse, 1080 West Ferndale - Variance - Public Hearing 4 • PLANNING COMMISSION MEETING MONDAY, OCTOBER 21, 1985 7:00 P.M. 14. #976 Calvin Korth, 3615 Lyric Avenue - Conditional Use Permit - Public Hearing 15. #977 Jim Werner, 1408 Baldur Park Road - Variances - Public Hearing 16. #978 Michael McEnany, 2497 - 2503 Kelly Avenue - Variance Public Hearing 17. #979 Donald C. Wildman, 280 Wakefield Road - After-the-Fact Variance - Public Hearing 18. #982 John C. Lambin, 3405 Shoreline Drive - Variance and Conditional Use Permit - Public Hearing 19. #983 Walter H. Pemberton, 3580 North Shore Drive - Variance - Public Fearing 20. #986 George Rovogno, 2010 Shoreline Drive - Variance SKETCH PLAN REVIEW 21. #985 Balboa Minnesota Company, 3700 Shoreline Drive - Sketch Plan Review - PRD/Variance for Apartment ADDITIONAL ITEMS *22. Planning Commission approval of September 16, 1985 minutes. 23. Planning Commission to select a representative to attend the November 18, 1985 Council Meeting. ADJOURNMENT MINUTES OF THE PLANNING COMMISSION MEETING HELD OCTOBER 21, 1985. PAGE 1 ATTENDANCE 7:04 PM The Orono Planning Conunission met on the above date with the following members present: Chairman Callahan, Sime, Rovegno, Kelley, and McDonald. Goetten arrived at 9:04 PM. Taylor was absent. The following represented the City staff: City Administrator Bernhardson, Building & Zoning Administrator Mabusth, Assistant Zoning Administrator Gaffron, Senior Building Inspector Jacobs, and City Recorder Peterson. Councilman Hammerel was also present. CONSENT AGENDA* It was moved by Chairman Callahan, seconded by Sime, to approve the Consent Agenda* as submitted. Motion, Ayes 5, Nays 0. ZONING AMENDMENT - SECOND REVIEW DEFINITIONS: It was moved by Rovegno, seconded by Sime, to recommend approval of the following definition: "Commercial Operation" - Operations where business is conducted by the sale or exchange of goods and/or services on site for money or other valuable consideration except for those provided for in the home occupation section. Motion, Ayes 5, Nays 0. It was moved by Chairman Callahan, seconded by McDonald, to recommend approval of the following definition: "Riding Acadamy" - A buiIding,structure or other facility which is used for the instruction and training in animal care and handling for a fee. In addition amend the following SS 10.20 Subdivision 3 (P): Riding Acadamy. Any such instruction existing as an accessory use conducted by the owner shall meet Motion, Ayes 5, Nays 0. • • • It was moved approval of "Lot Line" - except where right-of-way such public Motion, Ayes by Rovegno, seconded by Kelley, to recommend the following definition: The property line bounding that particular lot any portion of a lot extends into the public or a proposed public right-of-way, the line of right-of-way shall be the lot line. 4, Nays 1. Chairman Callahan voted nay. It was moved by McDonald, seconded by Chairman Callahan, to recommend approval of the following definition: "Yard Requirement" - Those requirements which relate exclusively to the size of yard areas when such are required within specific zoning districts. Motion, Ayes 5, Nays 0. SS 10.03 Subdivision 9 D - It was moved by Sime, seconded by McDonald, to recommend approval of this section as follows: No detached garage or other accessory building shall be located nearer the front or street lot line than the 1 MINUTES OF THE PLANNING COMMISSION MEETING HELD OCTOBER 21, 1985. PAGE 2 ZONING AMENDMENT continued SS 10.03 Subdivision 9 D - principal building on that lot except on lots which have frontage on a lake. Accessory buildings located within the street or rear yards of lakeshore lots are subject to the setback requirements of SS 10.23, Subd. 6B, SS 10.24, Subd. 5B & SS 10.25, Subd. 6B except that detached garages may be located 10 feet from ti»e street or rear lot line when doors face away from the street and a turn-around is provided on site. Motion, Ayes 5, Nays 0. SS 10.03 Subdivision 15 - The Planning Commission rejected the proposed amendment of this section to the code. SS 10.03 Subdivision 18 - The Planning Commission briefly discussed the proposed amendment relating to stock farms to be continued. It was moved by McDonald, seconded by Sime, to continue the proposed zoning amendment review until the November 18, 1985 meeting. Motion, Ayes 5, Nays 0. #973 STEVEN J. RUCE/SCOx'T R. LUSE 4625-4665 WEST BRANCH ROAD SUBDIVISION OP A LOT LINE REARRANGEMENT PUBLIC HEARING 7:51 - 7:53 PM The certificate of mailing and affidavit of publication was noted. The purpose of the public hearing was to consider the request for a lot line rearrangement. Steven J. Ruce, 4625 West Branch Road, wishes to purchase 60' of his neighbor's lot (Scott R. Luse, 4665 West Branch Road) to increase his lot from 1.0 acre to 1.43 acres. Steven J. Ruce was present for this matter and stated he needed the extra land for a garden. There were no persons present objecting and the public hearing was closed. It was moved by McDonald, seconded by Sime, to recommend approval of the Subdivision of the lot line rearrangement subject to the quit-claim deed for right-of-way. Motion, Ayes 5, Nays 0. #974 ERIC J. CHRISTENSEN 900 NORTH SHORE DRIVE WEST PRELIMINARY SUBDIVISION PUBLIC HEARING 8:00 - 8:03 PM Assistant Zoning Administrator Gaffron noted the certificate of mailing and affidavit of publication. The purpose of the public hearing was to consider the request to divide a 4.6 acre lot into two bui Iding sites of 2.0 and 2.6 acres. NIHUTBS OF THE PLANNING COMMISSION MEETING HELD OCTOBER 21, 1985. PAGE 3 #974 CHRISTENSEN continued Assistant Zoning Administrator Gaffron stated that the driveway access has not been determined by the county as yet but the City Engineer has reviewed it and finds no problem whether there is one or two driveways. There were no persons present objecting and the public hearing was closed. Eric J. Christensen was present for this matter and stated he had no problem with staff's recommended conditions. It was moved by Sime, seconded by Rovegno, to recommend approval of the Preliminary Subdivision subject to staff's recommendations. Motion, Ayes 5, Nays 0. #980 RICHARD M. KEAVENY #982 JOHN C. LANBIN 3423 SHORELINE DRIVE 3405 SHORELINE DRIVE PRELIMINARY SUBDIVISION/ CONDITIONAL USB PERMIT/ VARIANCE COMMERCIAL SITE PLAN PUBLIC HEARING 8:15 ~ 8:35 The certificate of mailing and affidavit of publication was noted. ■wl' A joint public hearing was held because the Lambin matter directly relates to the Keaveny request for preliminary subdivision. The purpose of the public hearing was to consider the request: #980) for a division of a 1.6 acre commercial property to provide a lot for a carry out restuarant and variance of side yard setback for Keaveny's existing building; #982) Conditional Use Permit for Class I Restaurant and commercial site plan Richard Keaveny and Joe Gorecki, representing John C. Lambin, were present for these matters. Zoning Administrator Mabusth noted that staff will be meeting with the County to review the access problems onto Kelly Ave. Both Mr. Keaveny and Mr. Gorecki stated they had no problems with staff's recommendations. There were no persons present objecting and the public hearing was closed. It was moved by Rovegno, seconded by Sime to recommend approval of the Preliminary Subdivision and Variance (application #980) subject to staff's recommendations. Motion, Ayes 5, Nays 0. Kelley had concerns regarding the landscaping and also the possible parking on County Rd. 15 which would impair a drivers vision when exiting onto Kelly Ave. 1 f MINUTES OP THE PLANNING COMMISSION MEETING HELD OCTOBER 21, 1985. PAGE 4 #980 KBAVENY / #982 LAMBIN continued The Commission had concerns regarding the adeouacv and efficiency of the parking plan. 4 y na Zoning Administrator Mabusth stated that the applicant has planned for some shrubbery and that she will address the problems of parking when meeting with the County. It was moved by Rovegno, seconded by Sime, to recommend approval of the Commercial Site Plan and Conditional Use Permit (application #982) subject to staff's recommended conditions and subject to staff reviewing and solving trafii.: flow & parking problems and landscaping concerns before the application goes to the Council. Motion, Ayes 5, Nays 0. ^ #971 NARK S. WASSBRMAN 1045 LINDEN LAND VARIANCE PUBLIC HEARING 8:04 - 8:07 PM The certificate of mailing and affidavit of publication was noted. The purpose of the public hearing was to consider the request to replace foundation under existing non-conforming garage. Mark Wasserman was present for this matter. He stated that the safest way to repair the foundation was to raise the garage and replace the foundation. McDonald asked applicant if he could move the garage over a few more feet in order to maintain a 10' side setback. Wasserman stated that if he moved the garage over 4-5 feet he believes he would be in a driveway. McDonald stated that she felt there was a hardship of location because of the steepness there. Sime stated that this was basically a request to repair the structure. There were no persons present objecting and the Public Hearing was closed. It was moved by McDonald, seconded by Sime, to recommend approval of the variance to repair the existing non- conforming structure. Motion, Ayes 5, Nays 0. #975 EVERAND GBYEN 3572 LYRIC AVENUE VARIANCE PUBLIC HEARING 8:07 - 8:15 PM The certificate of mailing and affidavit of publication was noted. MlNnTBS OP THE PLANNING COMMISSION MEETING HELD OCTOBER 21, 1985. PAGE 5 #975 GEYEN continued The purpose of the public hearing was to consider the request for a lot area variance to construct a new residence. Zoning Administrator Mabusth noted that the survey has been received from applicant. She noted the drainage plan and reviewed staff's recommended conditions. Everand Geyen was present for this matter and stated he had no objections to the conditions. There were no persons present objecting and the public hearing was closed. Kelley felt that in order to maintain a desired building envelope, no additional variances should be granted. It was moved by Sime, seconded by McDonald, to recommend approval of the lot area variance subject to staff's conditions and subject to the condition that no additional variances be granted in the future. Motion, Ayes 5, Nays 0. #981 PHILIP F. KALEY 1395 BROWN ROAD SOUTH VARIANCE PUBLIC HEARING 8:35 - 8:36 PM The certificate of mailing and affidavit of publication was noted. The purpose of the public hearing was consider the request of a setback variance to construct a family room. Philip Kaley was present for this matter and had no comments There were no persons present objecting and the public hearing was closed. It was moved by Rovegno, seconded by Sime, to recommend approval of the variance as proposed. Motion, Ayes 5, Nays 0. #984 JOE SAWCHUK 4105 WATERTOWN ROAD VARIANCE PUBLIC HEARING Joe Sawchuk was present for this matter and stated he was unable to complete the survey required and would have it done for the next Planning Commission meeting. It was moved by Sime, seconded by McDonald, to continue this Public Hearing until the 1 ovember Planning Commission meeting. Motion, Ayes 5, Nays 0. < J MINUTES OF THE PLANNING COMMISSION MEETING HELD OCTOBER 21, 1985. PAGE 7 ible lyes ible Lyes :ual but f ji Note: Planning Commission member Goetten arrived at this point in the meeting. #959 GEORGE E. JOHNSON 365 OLD CRYSTAL BAY ROAD NORTH VARIANCE - SECOND REVIEW Chairman Callahan explained the variance application request to construct a 1620 square foot pole barn for storage of vehicles and equipment. George Johnson was present for this matter and stated his intended use for the proposed pole was was to store collectibles. It was moved by McDonald, seconded by Sime, to recommend approval of the variance request subject to staff's recommendations. Motion, Ayes 5, Nays 1. Kelley voted nay stating he felt it was too big, in excess of the allowed 1000 square foot building. #972 SHAVER/TEARSE 1080 WEST FERNDALE VARIANCE PUBLIC HEARING 9:19 ~ 9:29 PM The certificate of mailing and affidavit of publication was noted. The purpose of the public hearing was to consider the request to permit construction of a dock on a lot that cannot sustain a principal structure. Jim Shaver and John J. Taylor, representing Mr. Tearse, were present for this matter. Kelley noted City Attorney Radio's memo regarding his opinion in this matter that "The property owner does have the necessary right to use that portion of the dedicated public right of way not currently used by the City for construction of a dock". (Memo attached to these minutes) There were no persons present objecting and the public hearing was closed. It was moved by Chairman Callahan, seconded by McDonald, to recommend approval of the variance based on the found hardship, subject to obtaining a written permit to permit structure on unused portion of public right-of-way, and subject to staff ' s reconu..endations. Motion, Ayes 6, Nays 0. #976 CALVIN KORTH 3615 LYRIC AVENUE CONDITIONAL USE PERMIT PUBLIC HEARING 9:29-9:42 PM The certificate of mailing and affidavit of publication was noted. 1. p—f NINUTBS OF THE PLANNING COMMISSION MEETING HELD OCTOBER 21, 198it. PAGE 8 1976 KORTH continued The purpose of the public hearing was to consider the request to keep a pet goat within the 1/3 to 1/2 acre lot. Cal Korth was present for this .r.dtter and noted that he currently rents the property at 3615 Lyric Avenue with the option to buy. Terry Schlee, owner of the property, was present and stated she was in favor of allowing the applicant to keep his pet goat. ft as ere lie 5 0 was Brad Wessler, 3640 Livingston Ave., was present and stated he was in favor of allowing the applicant to keep his pet goat. Also present was Jason Bosiger, a former neighbor of Mr. Korth's in Eden Prairie, who stated they never had any problems with the goat. Sime stated he felt this goat was definitely a "pet" and should not be subject to animal units. McDonald stated there was a need for an "exotic animal" classification, which would include this pygmy goat. Chairman Callahan stated he thought there should be some conditions in granting this request rather than an open- ended Conditional Use Permit. Rovegno questioned the types of vaccinations required for this type of pet and suggested requiring a letter from the vet. Mr. Korth assured the Commission that "Billy" is seen regularly by veterinarian. Dr. Bailee of Cedar Pet Clinic in Minneapolis, and is in good health. There were no persons present objecting and the public hearing was closed. It was moved by Chairman Callahan, seconded by McDonald, to recommend approval of the Conditional Use Permit subject to the following; 1) Staff to contact Dr. Bailee to verify the health of "Billy". 2) Conditional Use Permit is limited to the length of time that applicant resides there. 3) Conditional Use Permit is limited to the lifetime of "Billy" the goat. Motion, Ayes 6, Nays 0. #977 JIM WERNER 1408 BALDUR PARK ROAD VAD T Alir*12Q PUBLIC HEARING .:43 - 10:03 PM The certificate of mailing and affidavit of publication was noted. MINUTES OP THE PLANNING COMMISSION tIEETING HELD OCTOBER 21, 1985. PAGE 9 #977 WERNER continued The purpose of the public hearing was to consider the request for side setback, average setback, and hardcover variances to construct additions to front and rear of house. Sime questioned how this property was allowed to reach its existing percentages of hardcover. Assistant Zoning Administrator Gaffron showed background documentation dating back to 1977 to its present existing status. He further explained the current request for variances to build two additions. Rovegno stated that additions amounting to an additional 158 s.f. should be traded of with removal of existing hardcover. Goetten felt that no increase in hardcover should be made. Kelley agreed that there should be no additional hardcover and also no encroachment into the average setback. Jim Werner was present for this matter and stated that possible trade-offs of hardcover could be made by removing the rock beds and perhaps the cement slab which currently supports the steps. McDonald stated the drainage on the property was adequate enough to prevent run-off into the lake. There were no persons present objecting and the public hearing was closed. It was moved by Goetten, seconded by Sime, to recommend approval of the proposed side and average setback variances, a hardcover variance of 36.5% with no increase (staff and applicant to work on this), and subject to no additional variances being granted to this property. Motion, Ayes 6, Nays 0. #978 MICHAEL McBNANY 2497 - 2503 KELLY AVENUE VARIANCE PUBLIC HEARING 10:11 - 10:26 The certificate of mailing and affidavit of publication was noted. The purpose of the public hearing was to consider the request for a variance to construct a detached garage on Outlot A of "Kelly Cove”, which is a lot without a principal structure, for the purpose of housing the Association's lawn maintenance equipment. Michael McEnany was present for this matter and stated they presently have to store the lawn maintenance equipment in someone's garage which means they can't use the garages for their cars and must park outside which makes snow removal difficult. He noted that they propose a 2-1/2 car garage to store the lawn maintenance equipment and 2 cars. i 9 MINUTES OP THE PLANNING COMMISSION MEETING HELD OCTOBER 21, 1985. PAGE 10 luest inces 1 its round sting for 1 158 )ver. that )ving jntly juate iblic 1978 McENENY continued Zoning Administrator Mabusth noted that a clause in the resolution approving Kelly Cove stated "Outlot A may never be used for future residential construction, but shall remain as an open space area as density credit for existing duplex units...”. McDonald stated that she felt by granting this variance they would be setting a precedent for "open space". There were no persons present objecting and the public hearing was closed. It was moved by Chairman Callahan, seconded by Kelley, to deny the variance application. Motion, Ayes 4, Nays 2. Rovegno and Sime voted nay. Rovegno voted nay stating he felt it was a reasonable request and that it would be more appropriate to park the cars indoors rather than in view outside. Sime voted nay stating that denying solely because of the previous "open space" clause was not taking a realistic view point. #983 WALTER H. PEMBERTON 3580 NORTH SHORE DRIVE VARIANCE PUBLIC HEARING 10:26 - 10:50 The Certificate of mailing and affidavit of publication was noted. nmend ices, E and Lonal 5S 6, n was juest ; A of ture, lawn they nt in s for noval ge to The purpose of the public hearing was to consider a request to remove an existing cabin and replace with a new home and detached garage. The following 7 variances are required for the proposed site plan; lot area, lot width, hardcover, average setback, conditional use permit for filling, lakeshore setback, and front setback. Assistant Zoning Administrator Gaffron reviewed the proposed site plan. Goetten questioned why the driveway and garage needed to be located in the back of the house rather than the road side. Mr. & Mrs. Walter Pemberton were present for this matter. Mrs. Pemberton stated the reason for the driveway and garage location was for aesthetic reasons and to conform with the neighboring two houses. Chairman Callahan questioned the buildability of this extremely difficult lot. The Pemberton's builder was present and stated the proposed plan could be done. MINUTES OF THE PLANNING COMMISSION MEETING HELD OCTOBER 21, 1985. PAGE 11 tiey Lie «983 PB4BERTON continued Chairman Callahan noted that he felt the proposed location of the garage would interfere with the neighbors' (Fegers) view of the lake. Callahan suggested tabling this matter for applicant's to make adjustments to the proposal. McDonald noted that a previous application to build a house on this same lot wae, :#v^v.^it::d in total. Mr. Pemberton stated tnat the Fegers has no objection to the proposal as long as they don't get any closer to their property. Kelley stated he had trouble with the amount of proposed hardcover. The Planning Commission discussed other options for the location of the garage. It was moved by McDonald, seconded by Sime, to table this matter for applicant's to revise their plan. Motion, Ayes 6, Nays 0. N3iS the his sed «986 GEORGE ROVEGNO 2010 SHORELINE DRIVE VARIANCE Mr. & Mrs. George Rovegno were present for this matter. George Rovegno stepped down from the Planning Commission for this matter. Chaiman Callahan explained the application for a variance to allow an existing 5 foot fence to remain where normally only a 3-1/2 foot high fence is allowed. Callahan read a letter of opposition to the variance being granted from Delany J. Stinson on behalf of Richard V. Stinson of 2040 Spates Ave. Rovegno stated that he still believes that the fence was erected legally and noted that the fence was erected to solve some serious problems which he felt it has done. Rovegno staged, at this time* he is willing to re-locate the fence at the lathe line (posted by the city) and make the fence 3 feet high for the first 30 feet from the access for safety reasons. Rovegno noted that the City has not yet placed the posts along the south side as promised. LaDean McWilliams of Crystal Bay was present and stated she was opposed of granting the variance for the many reasons stated at previous meetings. Katherine Quady of Crystal Bay was present and stated she sympathizes with Mr. Rovegno's problems but felt the fence obstructed public view. MINUTES OF THE PLANNING COMMISSION MEETING HELD OCTOBER 21, 1985. PAGE 12 ise >ed :he #986 ROVEGNO continued Goetten stated she understood Rovegno's need for the fence but felt that the length of the fence was not necessary. Rovegno stated that basically he is entitled to that length because that is the length of his property. McDonald stated that by approving this variance and allowing the fence would be setting a precedent which would be disasterous to the lake area. Sime stated that when they amended the fence ordinance that this type of fence was not taken into account, but felt the fence should only be 3-1/2 feet high. It was moved by McDonald, seconded by Kelley, to deny the variance request for a 5' fence based on the fact that there are insufficient hardships and that Section 10.22 which allows a 3-1/2' fence should be adhered to. Motion, Ayes 4, Nays 1. Chairman Callahan voted nay stating that applicant's problems are valid and that obstruction of view is minor. 1985 BALBOA MINNESOTA COMPANY 3700 SHORELINE DRIVE SKETCH PLAN REVIEW PRD/VARIANCE FOR APARTMENT Ron Krueger was present representing Balboa Minnesota Co. ns. onq Applicant proposes to construct a 40 unit apartment building on a 9.84 acre area which exceeds the allowed number of units (approximately 30 units). Mr. Krueger submitted a preliminary sketch of the proposed apartment. Kelley stated that he would prefer to see townhouses built in that area. Mr. Krueger showed a rough sketch of a townhouse proposal. Chairman Callahan noted that due to a previous court settlement, the property is allowed a maximum of 36 units subject to meeting all zoning standards. Sime stated he preferred the apartment plan before the townhouse plan and stated that Orono could use something like this. Chairman Callahan stated that the access will present opposition and would need to by studied. He stated that he was in favor of the concept of an apartment buidling. Chairman Callahan spoke on behalf of absent Commission member Taylor stating that he was not opposed to the proposed apartments but was cautious of the problems that needed to be addressed. L MINUTES OF THE PLAhUlNG COMMISSION MEETING HELD OCTOBER 21, 1985. PAGE 13 gth APPROVAL OF MINUTES* SEPTEMBER 16, 1985 It was moved by Chairman Callahan, seconded by Sime, to approve the Minutes of the September 16, 1985 Planning Commission meeting as submitted. Motion, Ayes 5, Nays 0. COUNCIL MEETING REPRESENTATIVE Chairman Callahan stated he would represent the Planning Commission at the November 12, 1985 Council meeting. Co. ing its »sed t in ial . >urt lits the .ike ►ent was >ion >sed o be ADJ(IT 11:59 PM It was moved by Chairman Callahan, seconded by Sime, to adjourn the Planning Commission meeting at 11:59 PM. Motion, Ayes 6, Nays 0. #qnz. MEMORANDUM TO: FROM: REs DATE: Mayor and City Council Thomas J. Radio, City AttocnS^^T*^^2^ Granting a Permit for Construction of Dock: Corporation September 6, 1985 Shaver INTRODUCTION This memorandum will address some of the issues raised by the request of Shaver Corporation for a permit to construct a dock on the subject property. The central issues are as fo Hows: 1. Whether the property owner has the right to use that portion of the dedicated public right of way not used by the city; 2. Whether the dock need be constructed in conformity with regulations of the Lake Minnetonka Conservation District (LMCD) and ordinances of the City. CONCLUSION 1. The property owner does have the right to use that portion of the dedicated public right of way not currently used by the City for construction of a dock. 2. Any dock constructed would have to comply with the requirements of the LMCD and ordinances of the City. ANALYSIS I. The property owner possesses the necessary right to construct the dock. The question of the owner's right to construct a dock on the subject property focuses on the unused and submerged portion of the dedicated and platted right of way for Ferndale Road. It is clear that the requested dock could not be built ^ I ’(Xfse- i i 5ha\;er jTearse in such a way as to obstruct any portion of the dedicated roadway which is being used for public travel. The owner of the underlying fee title, however, has the right to use that portion of the dedicated public right of way not being used by the City as long as that use is compatible with the use by the public. Town of Kinghurst v. International Lumber Co., 174 Minn. 305, 219 N.W. 172, 173-174 (1928). The chief factual issue thus becomes whether the proposed dock is compatible with the public's use of Ferndale Road. The opinions of the City Engineer and Public Works Coordinator should be sought regarding the impact such a dock would have upon the safe use of the road. Should the dock *-ause safety risks or other interferences with the use of the road, the Council could legitimately deny the requested permit. Moreover, even if the permit is granted, the City should require certain safety precautions and that the applicant hold the City harmless from any causes of actions that might arise from accidents involving the dock. As with any action, the City should be concerned with the precedential value of its decision. At the same time, however, when dealing with parcels of land, which are unique unto themselves, the precedent set by any one decision is limited to the facts of the si;uation. Each case must be examined on its own merits, wi :h the following being considered; 1.Title history; 2.Platting history; • 3.Physical characteristics of the property; 4.Taxing records; 5.Public safety issues; 6.Interference with use of public property; and. 7.Length of the dock. At best, future requests for construction of docks in dedicated but unused public right of ways could be supported on the grounds of precedent only if the facts were substantially similar to those involved in this particular matter. II. Compliance with regulations of LMCD and City Ordinances. The proposed dock would have to comply with the regulations of the LMCD and the City Zoning Code, Pursuant to -2- if |T€*aw LMCD regulations, the dock could not be more than 25 feet In length, and no more than five feet wide. LMCD Ordinance 3.02, subd. 8. Pursuant to Section 10.23, subd. 5 of Orono Zoning Code, a dock is an accessory use in this particular zoning district. The import of this requirement is that a dock could not be constructed on this property without first obtaining a variance or until a primary structure were constructed on the adjoining property. The applicant would also have ho satisfy the requirements of Orono Ordinance 6.07, which prohibits the placing of any structure upon a City street without first obtaining a permit from the City. 1821: Mark Bernhardson, City Administrator John J. Taylor, E:.q. Walter H. Rockenstein, Esq.