HomeMy WebLinkAbout1987-11-09 Resolution #2292A
r CITY
I OF
I ORONO
Cit v of ORONO
RESOLUTION OF THE CITY COUNCIL
NO.* >Q 7 ^ ^
A RESOLUTION DENYING
AI'TER-THE-PACT VARIANCES
TO SECTION 10.22, SUHDIVIS ON 2
AND SECTION 10.28, SUBDIVISION 5 (A)
AND SECTION 10.5S, SUBDIVISION H
AND AN AFTER-*: HE-PACT CONDITIONAL USE PI.RMIT
PER SECTIONS 10.03, SUBDIVISION 19 & 20
PILE NO. 117.
WHEREAS, the City of Orono i.r: a municipal corporation organized
and existing under the i^ws of the State of Kinncsuta; and
WHEREAS, pursuant to State Statues 412 ct. seq. and 462 et. seq.
the City Council of the City of Orono has adopted a Community Management
Plan and zoning regulations for the protection of the public, health,
safety and general welfare; and
WHEREAS, Todd Waters and Deri Koiitor-V.aters (hereinafter "the
applicants") have an interest in the property located at 3061 Casco Point
Road and legally described as follows:
A track of land in Section 20, Township 117, Ranejo 23, according to
United States Government Survey thereof, described as follows:
Beginning at the most northerly corner of Lot 54 in Spring Park,
thence westerly in a straight line through a point which is located 15
feet due north from the nortl.west corner of Lot 52 in said Spring
Park, extended to the shore cf lake Minnetonka; thence in a northerly
direction along the shore of raid letko to the intersection of said
shore l.ine with a line drawn parallel with and 100 feet northerly,
measured at a right angle, from the first above described course of
this description; thence easterly parallel with and 100 feet at right
angles northerly from said first above described course, and its
cxtensiofi, to a point in the center line of vacated Ivy Place in said
plat of Spring Park, said center line being a line parallel with and
25 feet at right angles northwesterly from the northwesterly line of
Lot 56 in s<':id Spring Park; therce southwesterly parallel with and 25
feet at right angles northwesterly from the northwesterly lines of
Lots 56 and 55 in Spring Park, said parallel line being the center
line of said vacated Ivy Place to the intersection of said center line
with the southwesterly lino cf Lot 55, as extended; thence
southeasterly along said extended southv;esterly line of Lot 55 to the
point of beginning.
The southerly line of said tract being marked by two Judicial
I.andmarks placed at each end c*? said line.
Page J of 13
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CITY
OF
ORONO
City of ORONO
RESOLUTION OF THE CITY COUNCIL
NO. 2292_ _ _ _ __
HHBRBASr the applicants have applied to the City of Orono
(hereinafter "the City") for after-the-fact variances seeking approval of
land alterations conducted within 0 to 75 feet of the lakeshore of Lake
Minnetonka where none is allowed per Section 10.22, Subdivision 2 and
Section 10.55, Subdivision 8 and a height variance of 9 feet for the
existing principal structure where only a maximum allowed height of 30 feet
is allowed per Section 10.28, Subdivision 5 (A) and an after-the-fact
conditional use permit per Section 10.03, Subdivisions 19 and 20 for Ian
alterations not authorized under Orono Resolution No. 2172 or Orono
Building Permit No. 6385 conducted within the lakeshore protected area and
within 75 to 250 feet of the shoreline; and
WHBRBAS, the City Council has reviewed the application; the
recommendations of the staff and Planning Commission, the comments and
written statement submitted by the neighbor, the comments and written
statements of the applicants, applicants' attorney, and the applicants
site planner.
NOM, THBRBPORB, BE IT RESOLVED, that the City Council of the City
of Orono hereby denies the after-the-fact application as described above
based upon one or more of the following findings of fact concerning this
property:
FINDINGS
Yhs property is located in the LR—1C, Lakeshore Residential^ Zoning
District and consists of 32,308 s.f. or .74 acres. The District
requires 21,780 s.f. or .5 acres in area.
2. Prior to the restoration of the property, the former principal
structure was located 59 feet from lakeshore and hardcover
improvements were recorded as follows on the property;
0-75* o 7.1%, Allowed = 0%
75-250' = 28.1% Allowed = 25%
250-500' <= 12%, Allowed = 30%
3. The former residence was approximately 16 feet above the elevation
of the lakeshore and was situated at the highest point on a bluff or
lakeshore bank. Two timber retaining walls were installed in the
southwest corner/lakeshore of the property approximately 15 and 30
feet in length and a single stone retaining wall approximately 20+
feet to the east and 40 feet in length providing structural support
for the lakeshore bank.
Page 2 of 13
City of ORONO
RESOLUTION OF THE CITY COUNCIL
CITY NO. 2292
OF
ORONO
fine a/d lalJs“ore setback for the reconstruction of the exrstrn,
If f of fhe ffce -of tf f atfon ^00^^ f l\ows.
"Existing residence (location) land elevation would hinder lake
View.
- * Mr> 1129 also involved a request to realign the
rcfuSi/fhfnfe"d%ffxpffdfre-fulfd\nf^
reconstruct-Gd principal structure.
6 At the April 20, 1987 meeting of the Orono Planning Commission,
omfendfd that the entire Btructure ^e m<>ved^back
f of gf fVf *Tl>f prinf f 1 structure was to be f f
.^ff-lfback^ f\hfforr%tf-denf “ ^FttefowTr
f fv-atlfuf tf fe'rfaf w-oflf f f fr Wkf-vfwf f iVcked’ by higher
elevations of the lakeshore bank.
7. At the May 11, 1987 Council meeting, Todd Waters was quoted as
making the following statement to the Council:
"Mr. waters stated that the house
to fit the lot and to take advantage of the best lake views.
“pprfvfnl^hf-faftnfef fsffco"feffd fy fhfsuch Resolution noted the following findings for this application.
A) The applicant intends to construct a new foundation under the
existing^structure, hence he has the opportunity to move the
house back from the lake a short distance.
B) The proposed deck is to be 8* in width. ^ .^*1®
house and deck back 8* from the ^’‘isting location wi 11^^^^^
no new encroachment into the average lakeshore setbacK, wiii
result in no additional 0-75* hardcover, and may actually
decrease the 0“75* hardcover.
Page 3 of 13
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City of ORONO
CITY
OF
ORONO
RESOLUTION OF THE CITY COUNCIL
NO. 2292_________
C) As a result of moving the house, the 75-250' hardcover will
be increased to 33.1% where only 25% is normally allowed. This
can be justified by the fact that the majority of drainage in the
75-250' zone does not flow toward the lake but is held in the
basin area east of the house (emphasis added).
D) The view encroachment caused by the proposed porch at the
south end of the house is minimal. The effected neighbor to the
south has submitted a letter of non-objection to the project.
E) The relocation of the municipal sewer line is feasible and
will not cause any problems for the municipal sewer system.
9. In that same Resolution the following variances were granted:
A. Per Section 10.22, Subdivisions 1 and 2 and Section 10.55,
Subdivision 8, approval of excavation of new foundation and new
construction or structure within the 0-. - ' lakeshore setback
areas where no excavation or new structure arc allowed.
B. Per Section 10.22, Subdivision 2 to approve 33.1% of
hardcover within the 75-250 setback area where only 25% is
allowed.
C. Per Section 10.22, Subdivision 1, the new principal structure
shall be placed 67 feet from the lakeshore and the lakeshore deck
was to be placed at 59 feet from the lakeshore instead of the
required 75 feet.
10. On May 13, 1987, the applicants' contractor, D & R Construction,
applied for a building permit for the new construction. The handout
information attached to all building permit applications includes a
list of the necessary information required if certain improvements are
proposed specifically the following is extracted from that hand out:
Grading and Drainage Plans - where any changes in grade or
drainage are proposed as a result of the construction, a grading
and drainage plan must be submitted showing existing and proposed
contours or grades. Required for all projects.
11. The original information submitted with the building permit
application included only the building plans. Neither the applicant
nor the general contractor submitted grading and drainage plans
advising of any proposed changes from the existing grades. The north
and west building elevations included in the building plans would
suggest no changes in grades as no elevations or contours were shown
adjacent to each building elevation which is considered standard
practice for architects in the preparation of building plans.
Page 4 of 13
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CITY
OF
ORONO
City of ORO:VO
RESOLUTION OF THE CITY COUNCIL
NO. 2292
Mabusth, s^ent leVte^r \o”the ^a^DDl • Administrator Jeanne A
appUcaUo„„„ --pXe%e‘
1 O ^ ^ . *
executed by both°you^"nd your \!if'e.''° Naab's desk - to be
2. Engineering plans for sewer line realignment.
-• 20"f “er:?d?r!"!rioer orei?S«°swrof li"ni?
and airotLrtmn?n;»;;:"^"! location of house, sewer line
submlttin^*a “n’^u°pdatld slUly^ef llctIn'if n'''’'’''®''®applicant property, receipt of englnSrinrpraJs ’fSrr;,®.®-«e
and appropriate easement execn^orfrealignment of sewer line
providing access to new sewir??ifpriLVo®^'^®‘' property owners permit by the City. prior to issuance of a building
aubmltted an'’executid*eMement®that*Sas®ta"k general contractor,
rather than the 10 feet on ait‘h^e^%?/e ltThe°?ellTrL"l\?nere^^^^
«ilf^y^®a^‘renlti4 ’Yhe\^®r®rfci‘reri®d*®®“^^ “ —— and Curtis J. Englund, property owners\o the ^
the easement document on file at the Ci^v yet to complete
applicants and applicants' attorney^ David SLen^,?«?“^ >'1'
appli«\\°o;!"th\'’®Ci\T3t"a7? p°er^®L®ted -“ar-the-fact
required information for the after-i-ho e ♦. attempt to obtain the
Mattson fcr grading plLrthafwouiH application and asked Mr!
July 17, 1987, staff^receivefa let^^^^^ original grades. Onfollowing: ettei from Mr. Mattson stating the
Inv a? ?he st'a'^.f^l^^L'e^una"! !t"ti ^ak^er"" """" ""
under consideration due to exc,vat °on pactia!l“don”
_ t
glnri®:^;^d®'exlstln “®grL ‘es"''lo'; L^nd re"“p\®?i?a\Ton
Page 5 of 13
CITY
OF
ORONO
City of OROIVO
RESOLUTION OF THE CITY COUNCIL
NO. 2292_________
17. D & R Construction, the general contractor, was continuously
under pressure to meet the Parade of Homes deadline in September. The
advertising benefits by the contractor's participation in the Parade
of Homes are obvious not to mention the monetary rewards for both the
contractor and owner. Staff found it difficult to obtain customary
information associated with the building proc; s.
18. The revised survey dated 5/8/87 later submitted to the City as
part of the building permit application showed no other improvements
to the site that would suggest the need for grading plans or future
structures such as retaining walls within the surrounding yard area.
19. In consideration of the recent Land Use Application No. 1129 and
the information submitted with the building permit, the Building &
Zoning staff as well as the City Council were not made aware of any
plans to alter the existing elevations of the property.
20. On June 5 and June 11, 1987, the Building staff conducted footing
inspections for the new structure and noted nothing unusual about the
excavations to the outside of the footing structure. Excavations to
the exterior of the footing structure can range from 5 feet to 10 feet
depending on the proposed height of the masonry/foundation wall to be
installed above concrete footings. The next required inspection would
be to inspect the freuning.
21. On July 2, 1987, the City received word from a concerned neighbor
of excavations within the lakeshore yard of the property. The Orono
staff immediately inspected the site and issued a Stop Work Order and
advised the contractor of the violations. The inspection staff was not
called to the site to conduct a required inspection for framing until
August 10, 1987.
22. Sometime in the later part oi August, the plumbing contractor,
Robinson Construction Company, Inc., re-routed the municipal sewer
lines prior to the City's approval of the engineering plans (as.
required by conditions of Resolution No. 2172) and without the
necessary permits. The first installation was done incorrectly and
had to be re-done by the contractor.
23. In September of 1987, the City Staff was advised that the
I rincipal structure was placed over the private water service line
that serves the residence to the south of the property.
24. On July 10, 1987, the applicants filed for an after-the-fact
conditional use permit and variances application seeking approval of
the following:
Page 6 of 13
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CITY
OF
ORONO
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City of ORONO
RESOLUTION OF THE CITY COUNCIL
NO. 2292 ______
A. Per Section 10.22, Subdivision 2 and Section 10.55,
Subdivision 8, major alterations of lands within the 0-75 feet
setback area involving excavations within 5 feet of the shoreline
and the removal of hundreds of cubic yards of fill.
B. Per Section 10.03, Subdivision 19 and 20, major alterations
of lands within 75 to 300 feet of the shoreline involving
proposed changes in existing draingage for 5+ acre watershed
providing a swale along the north side of the house instead of
providing retention in a ponding area and final transmittal of
surface run-off to lake via an underground tile as existed
befoie.
C. Per Section 10.28, Subdivision 5 (A), a building height
variance is required since alterations around the principal
structure would now classify the lower basement as a full story
(per UBC, Definition Section 417.240) exceeding the allowed 30
feet height along the lakeshore side by 9 feet and 7 feet at the
rear.
25. The Planning Commission reviewed Application No. 1177 at their
August 17, 1987 and September 21, 1987 meetings and voted unanimously
to deny the after-the-fact application based on one or more of the
following findings noted by Commission Members;
A. The City would never have approved this type of grading
before-the-fact.
B. Applicants have contributed to the drainage problem by
increasing the footprint of the house threefold and by occupying
a portion of the retention area that treated run-off.
C. The applicants never corrected the City's assumption that
drainage drained away from the lake to the retention area rather
than draining to the lake via the existing underground tile.
D. Drainage appears a conv€*nient explanation to grant the
v;alkout design which never showed on the plans.
E. If the City was to approve an after-the-fact application of
this type, a .'.egative precedent, would be established in dealing
with future applications dealing with similar violations.
26. At the Council meeting of October 26, 1987, the Orono Council
denied the after-the-fact application and directed staff to draft the
appropriate resolution noting the following findings:
Page 7 of 13 I
CITY
OF
ORONO
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I 11 ORONO
Ei. J
City of OROIVO
RESOLUTION OF THE CITY COUNCIL
NO. 2292_________
the meetings for Application No. 1129, the applicants
anSTo^^gents failed to correct the City in their formal findings of
May 1, 1987, as set forth in Resolution No. 2172, that the majority
of drainage from the property drains to rear of the house to a
retention area. The surveys submitted with Land Use Application #1129
dated 3/10/87 and the survey submitted with the building permit
application dated 5/8/87 failed to show the catch basin and the
underground tile.
32. The general contractor's claim that he received only a permit
application form is not possible. Such forms are not single sheet
handouts but are included with other informational sheets and forms
that attempt to assist the applicant through the plan review process
and also ensure the City that all necessary information is received
with the building plans. The permit application and other handouts
are stapled together. Furthermore, the applicants' building permit
has staple marks in the left hand corner which is evidence of the fact
that he received the necessary information and request for information
from the City.
33. The applicants have been allowed to occupy the residence under
special conditions of a Temporary Certificate Occupancy until all
violations have been resolved against the property by Juno 15, 1988.
34. The major land alterations conducted within the lakeshore
protected area (0-75 feet from lakeshore) and the alterations of an
existing drainage area involving a five+ acre watershed are found to
be in complete conflict with the following principals and goals set
forth in Orono's Community Management Plan.
SHORFLAND. Ft-OOD PLAN AND .9TQRM WATER CONSIDERATIONS. - C.M.P. 3-9
ORONO'S MANY MILES OF SHORELINE ARE ESPECIALLY SENSITIVE TO MISUSE OR
OVERDEVELOPMENT. As the interface between land and water, the shoreline
is ever changing. Shorelines are subject to continual erosion by wave
action, ice buildup or unstable soil conditions. Droughts dry out
vegetation and heavy rains or snow melt cause land slipage.
On top of these natural pressures, nan is drawn to the lake and the
shoreline often becomes his battleground with nature. Lake access often
means active use and construction of buildings and structures causing
unnatural soil loadings, vegetation removal, and land alteration. Exposed
soil becomes more subject to erosion and man-made hardcover increases
direct runoff quantity and speed. Power boats increase wave action and.
more damaging, stir up
increased turbidity.
the lake bottom causing release of nutrients and
The impact, of course,
access and a change in
is a degradation of water quality, impaired lake
the natural aesthetics which drew people to the
shore in the first place. Legal considerations become entangled when
lot descriptions conflict or become inconsistent due to changing water
levels or shoreline locations. Therefore, planning considerations must
recognize the desirability of human interaction with the lake while at
the same time providing for protection of nature's sensitively balanced
shoreline ecology. Page 9 of 13
City of ORO?«fO
CITY
OF
ORONO
RESOLUTION OF THE CITY COUNCIL
NO. 2292
land use - C.M.P. 4-6
ORONO’S PLANNING PROGRAM IS THE PROTECTION OF NATURAL
mNNETONKfPARTICULARLY THE WaJeR
Environmental Protection Plan emphasizes Orono's
MiineLnJI relation to the long-term health of Lake
Minnetonka. Land use and development will not be permitted at the expense
of environmental protection. Retention of natural vegetation, light,^air
Int afr promoted. Shorelines will be protected frL erosion
as wjjdli?rhabit!n marshland will be protected and preserved
eLnoifiM? unique open spaces and most importantly as the only
fil?raJio“^ practical method of flood protection and storm water runoff
GENERAL LAND USE POLICY NO. 2 - C.M.P. 4-12
2.ORONO'S LAND USE PLANS WILL BE BASED UPON ENVIRONMENTAL PROTECTION
policies. Land use and development must assure the
conservation, protection and preservation of sensitive
environmental resources in accordance with the goals
and policies of the Environmental Protection Plan.
Land use policies will encourage the wise use and
management of natural resources while prohibiting their
misuse, abuse, overuse or exploitation.
GENERAL LAND USE POLICY NO. 6 - C.M.P. 4-13
6.LAKE SHORELINES WILL BE PROTECTED FROM ALTERATION.
Shoreland areas, whether bluff, beach or floodplain,
are sensitive environmental features with significant
impact on lake water quality, aesthetic values and
land use function. These same factors act to draw
development which can be destructive if not properly
regulated. Natural vegetation in shoreland areas
will be preserved insofar as practical and reason
able in order to retard surface runoff and soil
erosion, and to utilize excess nutrients. Clear-
cutting will be prohibited. In areas of soil or
wave action erosion, material stone rip rap
shoreline protection will be encouraged.
Pago 10 of 13
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City of ORONO
CITY
OF
ORONO
RESOLUTION OF THE CITY COUNCIL
NO. 229 2
r,PMPRAT.^^^^SE POLICY NO. 10 - C.M.P. 4-14
10. PRIVATE STEWARDSHIP OF LAND AND RESOURCES IS PREFERABLE TO INFLEXIBLE
PUBLIC CONTROL. Private ownership, maintenance
and stewardship of the land, including open space
and many types of improvements, is favored over
public ownership as being in the best and most
beneficial interests of the property orfner and
the public, providing for more intimate,
responsive and economical land management.
GENERAL LAND USE POLICY NO. 13 - C.M.P. 4-15
13.FUTURE DEVELOPMENT MUST ENHANCE THE ENVIRONMENT.
Land development should respect and enhance the
unique natural features of the site and the
general environmental assets of the community.
Preservation of natura'. views, vegetation,
drainage and general respect for unique site
features always produces more aesthetic
results and lasting value for the property
owner and the community than does wholesale
alteration of the landscape or mathematical
division to the highest possible density.
URBAN LAND USE POLICY NO. 11 - C.M.P. 4-19
11. A SIGNIFICANT AMOUNT OF NATURAL WOODLANDS AJID OPEN SPACE WILL BE
RETAINED ON EACH PROPERTY. Retention of the
natural environment requires careful siting
and preservation of trees and open space on
each urban property.
URBAN LAND USE POLICY NO. 13 - C.M.P. 4-19
13. RETENTION OF NATURAL VEGETATION WILL LIMIT THE IMPACT OF URB/iNIZATION
AS VISIBLE FROM THE LAKE. Building heights will
be limited to less than the typical tree height.
Minimum green belts will be provided with pro
hibitions against clear cutting o.r excoosivo
thinning of vegetation. Natural vegetation will
be preserved on slopes and retaining walls will
be discouraged except when absolutely necessary
to prevent erosion, in which case they will be
screened with natural vegetation.
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City of OROINO
t'h:
t?"' CITY
OF
ORONO
RESOLUTION OF THE CITY COUNCIL
NO. ^29 2
35. The granting of the required variances would result in the
following violations of Section 10.08, Subdivision 3 (A) of the !5oning
Code with which the applicant must first comply before the requested
variances can be granted:
a) In review of the factual findings noted above, the plight of
this applicant was created by cither he or his agents' actions
and has nothing to do with a unique hardship related to the land.
The house was to bo adopted to the given land contours.
b) The granting of the requested variances would appear to serve
merely as a convenience to the applicant as there have been no
valid hardships demonstrated through the review of this
application.
c) The plight of this owner has not been created by tne City or
its Ordinances but by the owner and his agents.
36. The applicants and/or their agents have had every opportunity to
provide the City and its staff with the requested information prior to
construction or land alterations so that adequate and meaningful
direction could have been provided. The intent and full purpose of
the City's Zoning Code and Community Management Plan have been
violated in a manner so severe that this Council must act to deny this
application. The City Council cannot approve the illegal actions of a
resident or his agents v/hen similar actions would have been denied
through the normal review process.
FURTHERMORE, BE IT RESOLVED that the City Council of the City of
Orono hereby reaffirms denial of this after-the-fact conditional use permit
and variances application with the formal adoption of this resolution and
further directs Todd Waters and Dori Molitor-Waters to restore the property
to original grades and that the applicants and agents of the City shall be
guided by the following directives in the process of this restoration:
1. Tlie entire restoration of the property mast bo completed by June
15, 1988. If the applicants are unable to meet the established
deadline date, the City must be advised by June 1, 1988.
2. The applicants .shall work with the City .staff and its consultants
to restore original drainage and original grades to the entire site.
Page 12 of 13
CITY
OF
ORONO
City of ORONO
RESOLUTION OF THE CITY COUNCIL
NO. 2292
3. The applicants shall apply for a bull .ny permit prior to filling
around structures if structural or other repairs are required for
principal structure.
4. Applicants shall be responsible for maintaining adequate erosion
control for the entire yard area that remains in a distrubed state
until final grades and ground cover are restored.
Adopted by the City Council of the City of Orono» Minnesota^ this
9th day of November, 1987.
ATTEST:
'tooi^othy M.'Ballin, City Clerk
'j
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