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Home My WebLink AboutResolution 1099 RESOLU"'IOr1 #1099 ` A RESOLUTION RE(�11RDIN(� DFVFLOPr1FNT OF "'HE STiJBBS BAY ?1ARINA PROPER'?'Y (In a separate ring binder on library shelf in City Planner' s office. Too rtanY paqes f_or regular resolution book) • • � . . .:�c�� o�e -o�o�t� . r•;• • . ' � . . . �.W�l'_ ` . . . � .. . . r..�� -.; : RESQLUTION. OF THE E�TY �OUI�C�lL�`��• • � . � � � NO. � 1�099 .. . • - • • � ' � � - . ' �_�.A RE.SOLUTIOi�I 'REGARD�NG �bEVEL�PMENT OF � :' � - .. STUBBS ;$AY:�MARINA pi�OPERTY�" ��. ,� .. �This �.Resv:�.utiori` �ets�:,forth, Findings., Conclusions ' and Order� :of the City Counc,il: in,�regar'ds�� to� �the . � � �` �-�Stubb:s� Bay Area ;Study oc�casioned�by ��Morato�ium - � ' �� • �Ordina�nce �219 .a�dopted January� 23.,� 1979�,as �req�ested � •. . ,by 'the J`Couacil� �o13.owirig•. the• Stisdy=�r�a' Publ�ic� � � . � `':Hear�ng' helt� Fetiruary 27, 1979.. . . "�� ' .Adopted by . the City_ Couricil ��of� the� Ci�y of Orot�a� _. �.�. . ��. y �� i9�9 . . � . . , '..Qn. the� // da of� �� . • . .,` . . . . ,� . . ._��`; �_ .. . . . � .� ; � � . �J,• _ . , „ �, . : PAG E O F " . . : . RESOLUTION N0. /D�9 � f�~ . TABLE OF CON`I'ENTS � INTRODUCTION � 1 � � FINDING OF FACTS . 2 ' I. �T�:FE PUBLIC INTEREST . A .�°� �onprehensive Planning . 2 " � B." Zoning Ordinances 4 C. Business Licenses � S II. STUBBS BAY STUDY AREA - � A. Stubbs Bay, Lake Minnetonka 6 ' - �':B.. • Natural Land Features 7 • C. Historic Development 8 �� D.� ' Transportation • , � 10 E�. � Public Utilities � 10 � F. Housing Inventory � � � . 11 � �• G. Government Services � � 12 E� �H. Development Trends � . � 13 III. THE STUBBS BAY MARINA PROPERTY �A.. Legal Description, Ownership, Tax Status 14 - B. Natural Features 17 C, Resort History 18 � D. Development Trends • 26 � - � IV. RECOMMENDATIONS �TO 'I'HE CITY COUNCIL , � A-. Evolution of the Study 27 .•"$.. Th2 Neighborhood.and General Public 29 �C; :Orono Planning Commission . '=; � 30 D�:, Crjvernment Regulations � 'a� � 31 E, Outside Consultants 48 F. .Gity Staff � . � 56 � CON4"�-US IONS ' � I. . THE �PUBLIC INTEREST � ,:�. .. Comprehensive Planning . - 62 � .�3, ;. Zoning Ordinances . 63 , C, �"Business Licenses � � 65 RESOLUTION N0. /G' ' TABLE OF �ON1EN'TS ' PAGE 2 .. � II. STUBBS BAY STUDY AREA A. �Stubbs Bay, Lake Minnetonka 67 B. ATatural Features 68 C. Historic Development 68 D, Transportation . 69 E. Public Utilities 69 F. Housing � ,70 G. Government Services 70 H. Development Trends 71 III. THE STUBBS BAY MARINA PROPERTY � A. Property Description and Ownership 72 B. Natural Features 73 C. Resort History 74 D. Development Trends : . 79 ,� IV, RECOMMENDATIONS TO THE CITY COUNCIL A, Study Merits � • 80 B. Neighborhood and Citizen Concerns 81 C, Planning Commission Concerns 82 • D, Government Regulations 83 E. Outside Consultants 88 F. City Staff • 90 G. Summary of Conclusions . 90 i y . . , ORDERS � . • � EXHIBITS . A thru EE <„ APPENDIX �= . . � � ( 1. List of Exhibits •2. List of short form Names , Initials and References '� APPENDI� 1 • � ' �LIST OF EXHIBITS TO RESOLUTION N0. lD�. ' A. City Map of Orono showing Stubbs Bay Study Area B. Stubbs Bay Study Area detail plat map - C. 1950 Township Zoning . D. 1967 Vitlage Zoning _ " � E. 1974 City Zoning - - F. HUD Flood Insurance Rate r�ap - Tributary to Stubbs Bay � G. Designated ��'etlands in Stubbs ��y Area H. Stubbs Bay r7arina Property I. Marina Property Topographical Survey J. Vegetation photos - Niarina Proper�y K. 1967 Resort City License Application and Plan L. 1968 Resort Dock Plan . M. 1973 McCleary LMCD License Application and Plari ' N. � 1973 McCleary Plan of Marina Property 0. 1974 Marina Dock Plan � . P. 1974 Violation Letter and Inplace Dock Plan - Q. 1974 McCleary Letter and Dock Plan � . R. 1975 Niarina Dock Plan � S. Proposed Building Sketch . `�T. Building Location Plan - Pernit No. 3696 U. 1977 Marina Dock P1an for LMCD License V. 1978 McCleary Letter and Revised Dock Plan � W. Proposed Dock Plan with Rezoning (Application No . 390) X. 1979 Johnson Proposed Plans _ • Y, February 27, 1979 Public Hearing Notice Z. Planning Cotrunission Recommendations - AA. LMCD Dock Use Area on Johnson and McCleary Plans - _ BB. Hennepin County DOT Access Review Letter . CC. J.M. Woods Letter �on Stubbs Bay, Ecology , ' DD. Michael Gaffron Study Area Septic System Memo • . EE. Alan Olson; Village Planner` s Memo � '-� . s ;� � . . . APPENDIX 2 � �I ST OF I�Ar�S, INITIALS �ND REt ERENCES USED IN NORT FORM IN RESOLVTION N0. /0�'9 Bay: Stubbs Bay, Lake Minnetonka City: City of Orono, rTinnesota - See Exhibit A Council: City Council of the City of Orono DI�TR: Minnesota Depar�nent of natural Resources F't�TBI: Gray Freshwater Biological Institute, University of Ninnesota HSWCD: ' Hennepin Soil and ��Tater Conservation District . HUD: U. S. Department of Housing and Urban Development � Federal Insurance Administration Johnson: George R. Johnson, applicant for 1979 Commercial Dock License for Stubbs Bay Niarina �Keiran: Orville E Keiran, operator of Stubbs Bay Resort from 1956 to 1973 - Fee Owner of T:arina� Property Parcels 1, 2 & 3 LMCD: Lake Minnetonka Conservation District Marina: Stubbs Bay Niarina, especially since 1974 a Marina Property: Property historically occupied by Stubbs Bay Resort, � legally described as : Block 7, Bayside Addition to ' Lake Minnetonka and Lot 21 and that part of Lot 22 lying southeasterly o� a line bearing south 48 degrees ' 30 minutes west from the northeast corner of �Lot 22, ' Auditor' s Subdivis ion..No . 203 - See Exhibit H. 4 If McCleary: James K. McCleary, operator o�� Stubbs Bay Marina from 1973 � t thru 1978 and late applicant for 1979 Commercial Dock License. � Fee Owner of Residential Parcels 4 & 5: Contract Purchaser of Marina Parcels 1, 2 & 3 . � � . At P�IvDIX 2 � LIST OF NA�TES, I3�ITIALS AND R�F�REI�CES USED IN SHORT FORM IN RESC�LUTION N0. /099 �AGE 2` Metro Council : Metropolitan Council of the Ttain Cities Area MG`WD: Minnehaha Creek j��atershed District - MHD: Minnesota Depar�ment of Health I�Teighborhood: A portion of the Study Area generally including the homes and properties on East Lake Street, Tonka Avenue, Crestview Avenue, Bederwood Road, � Oxford Road and Bayside Road between Leaf Street � and Stubbs Bay Road. � ' Parcels 1, 2, 3, 4, 5: Identification of property parcels connected with the rlarina/Resort operations - see ' Exhib it H. PCA: Minnesota Pollution Control Agency . � , �esort: Stubbs Bay Resort; historic operation 1915 - 1973, � but especially prior to 1967 B-2 zoning. Study Area: Stubbs Bay• Study Area a�s defined in Ordinance 219 : all the land within the I�TOrth Half of Section 5, Township 117, , - Range 23, located South of the Luce Line Trail - see � Exhib it A. _ , , '`�,. 4 � � � ' - * ' _ � � RESOLUTION N0. ��99 A RESC�LUTION REGARDING DEVELOPMENT . OF THE STUBBS BAY MARIATA PROPERTY WHEREAS, the City of Orono is a municipal corporation organized and eaisting under the laws of the State of �innesota ; and jaHEREAS, the State of Minn�sota under State Statute Chapter 462 has delegated to the municipalities the responsibility and authority for carrying on comprehensive land use planning activities , and for the implementation of said planning activities through the adoption and enforce�nent of appropriate zoning regulations and ordinances which promote the public health, safety, morals and general welfare; and WHEREAS, the City of Orono in response to this responsibility adopted a Comprehensive Guide �Plan setting iorth the basic goals and principles to guide development within the City; and WHEREAS, pursuant to the Comprehensive Guide Plan, the City Council adopted the Zoning Code of the City of Orono, which code sets • forth the detailed land use regulations and performance standards for the use and development of land within tne City; and WHEREAS, since the adoption of the above Com�rehensive Plan and Zoning Code, the State Legislature adopted the 1976 Metropolitan Land Planning Act which does require the City of Orono to review the previous Comprehensive Plan in relation to new information and current trends in population growth, transportation, public facilities and economic development; and . . � 5 • . . WHEREAS, the City of Orono has begun the requisite planning � review with staff and consultants reviewing City-wide issues and also with the designation of detailed study areas, which are receiving �• special attention due to special planning problems ; and '�� WHEREAS, one of the detailed s�tudy areas is the "Stubbs Bay Area" shown on attached Exhibits A & B, which area is worthy of special , study because of the proximity to Lake Minnetonka, a relativeiy large number of homes located on relatively small lots , the general trend . toward housing deterioration, the present lack of municipal sanitary sewer service, poor soil conditions and substandard or potentially failing septic systems , a newly defined flood hazard designation, and � the receipt of a proposal to develop the Stubbs Bay Marina property, the combination of which factors are unique to this area and are not generally applicable to other areas of the City; and Resolution I�TO. /D9-J�' � Page 2 � � � . WHEREAS, in response to the special planning issues in this area, the City Council on January 23, 1979 adopted Ordinance No. 219 establishing a mo.ratorium on the granting of building permits , land subdivisions , rezoning applications, conditional or special use ' permits, variances , or other authority for additional development in the Stubbs Bay Area ; and WHEREAS , on February 27 , 1979, the �ity Council called a Public Hearing to review the problems and planning issues in the Stubbs Bay Area and specifically to review the �pending proposal for development of the Stubbs Bay Narina property; and WHEREAS, the Ci'ty Council, the Planning Commission, staff and consultants have invested many hours in review of facts and issues regarding development and land use in the Stubbs Bay Area, � NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Orono hereby makes the following findings of facts concerning the Stubbs Bay Area and the Stubbs Bay Marina Property: � I. THE PUBLIC INTEREST � A. COMPREHENSIVE PLANNING 1. On August 26, 1974, the Orono City Council a dopted a Comprehensive Guide Plan for the City. The sta ted purpose of this plan was to establish policies, goals and objectives to guide future development decisions in the City. 2. The City "("Villa'ge") was recognized as having a �unique character; part urbanized and part rural but intimately interwoven with the many miles of lakeshore and many acres of natura 1 wetlands and that almost any development within the City has a direct impact upon the environmental health of�:Lake Minnetonka . ; �j� 3. The primary objectives enumerated in this plan were "to retain _ the basic single family character of the Village, to preserve and ' maintain open space and existing natural resources including such features as Iakes and wetlandsi and to provide for a limited diversity of housing types at derisities consistent with the main- tenance of open space". . � � � Resolution No. /D 99 � Page 3 4. Existing commercial areas were recognized as being more than adequate to serve the neighborhood needs of the City with emphasis to be placed on a reduction of surplus com�-nercially zoned land, . a reduction of commercial hardcover especially within 1000 feet of the shoreline, and a reestablishment of natural vegetation in lakeshore commercial areas . 5 . Residential development was to be a major objective of the development plans , with care taken to assure lower densities in rural areas lacking urban services and li�nited densities within � 1000 feet of the shoreline consistent with M�WD, LMCD, DNR and : PCA guidelines . � 6. The extension of urban serv ices were to be done solely to correct existing public health, safety or welfare problems and not to encourage any unwarranted development of the rural areas � of the City or, of the environmentally sensitive wetlands or lakeshore areas . - • 7. The 1974 Comprehensive Plan was reviecaed and accepted by the Metropolitan Council on November 7, 1974. . 8. In 1976, the enactment of the Metropolitan Land Planning Act by the State Legislature mandated every City to prepare and adopt Comprehensive Plans . Because of this mandate, new format inclusions -. required by the Metropolitan Council, and new information generated since 1974, O.rono in 1977 began to revise and update the 1974 � . �omprehensive- Plan and �has hired a Land Use Planning Consultant to assist and advise in such review. � � 9 . Prior to 1974, the City did not have a written "Comprehensive Plan", but general policies have remained consistent since prior . to incorporation as a Village in 1954: The earliest zoning ordinances adopted in March of 1950 by the Orono Town Board provide for essentially the same land uses as do the current planning proposals . ' � . 10. -T'he environmental concerns of Orono have long been paramount . in planning activities . Wetlands were protected and removed from building purposes in 1961. . In 1970, Ordinance 125 further protected • wetlands, shorelands and flood plains from filling and development. � - . Resolution No. /v99 � � Page 4 B. ZONING QRDII�ANCES 1. The first zoning regulations were adopted by the Orono Town Baard in rs�rch 1950. The Stubbs Bay Study Area was zoned as a "Residential District" west of Stubbs Bay Road on July 10, 1950 (the "Stubbs Bay Dist.rict") and east of Stubbs Bay Road on November 20, 1950 (the "Crystal Bay District") . The nearest conanercial areas were �rystal Bay (Brot,7n Foad and Central Avenue) ' and I�avarre. 2. On Narch 11, 1957, Village Ordinance No. 9 created,among others , the commercial zoning district where the marinas are located on . Maxwell Bay. 3 . Also on riarch 11, 1957 , Village Ordinance No. 10 designated � all lands not included in previous zoning districts as a � "Residential Zoning District". Non-conforming uses were given a 10-year amortization period. • 4. The Stubbs Bay Study Area remained a "Residential" district. 5. Ordinance No. 93, adopted September 5, 1967 and effective January l, 1968, was the first zoning ordinance to provide for coriunercial zoning classifications . The B-2 Lakeshore Commercial . District was established providing for permitted uses (boat repairs and service, boat launching, win ter storage of boats, sale and rental of boats , motors,. fishing equipment and sale of fuel, boats , boat supplies, bait and marine items) and providing for conditional uses (sale of cigarettes , food and beer subject to licensing by the �ouncil) . Dock or slip rental was not a permitted nor a conditional use. � . 6. Ordinance No. 93 designated the Stubbs Bay Marina Property as B-2 Lakeshore Commercial. The remaining property in the Study Area was zoned One-Family Residential, minimum 1-acre per lot. Property along .the east shore of Stubbs Bay, south of the study area was zoned One-Family Residential, minimum 1- 1/2 acres per lot. 7. Pursuant to adoption� of the 1974 Comprehensive Plan, the City � Council revised all the zoning ordinances of the City. On December 19, 1974, effective January l, 1975, the Council adopted • Ordinance No. 172, the current Zoning Code of the City of Orono. • Resolution No. /�99 - : Page S 8. Ordinance No. 172 provides for exactly the same permitted B-2 uses as did Ordinance No. 93. Ordinance No. 172 provides for the same B-2 conditional uses as did Ordinance No. 93, except that food sales is restricted to prepackaged or vending , machine foods. Ordinance No. 172 provides for "additional reasonable regulations that require partial r�storation� of the shoreline vegetation, that will serve to avoid pollution of the lake water, and to insure protection of adjacent residential properties which have previously suffered from the unregulated expansion of corrli-nercial activities" . 9 . Ordinance No. 172 also designated the Stubbs Bay Marina � � property as B-2 Lakeshore Commercial. The remaining property surrounding Stubbs Bay was zoned One-Family Lakeshore Residential. . Property along Tonkawa Road served by a 1973 sewer extension remained at 1-acre per lot. Properties north of Bayside Roa d and west of Stubbs Bay Road had the minimum lot size increased from 1-acre to 5-acres per lot. The remaining residential � properties had the minimum lot size increased to 2-acres per lot. • C. BUSINESS LICEn'SES . 1. The first City licensing of commercial boat dock businesses began with the adoption of Ordinance No. 43 on April 26, 1962. 2. Subsequent revisions to the licensing regulations occurred in 1963 (Ordinance No. 51) , 1969 (Ordinance No. 103) , 1970 (Ordinance No. Y15) and 1974 (Ordinance No. 166) . The curren t licensing regulations are pursuant to Chapters 70-75 . of the � Municipal Code, including Chapter 73, Commercial Docks which chapter is Ordinance No. 173 adopted December 19, 1974. 3. All businesses licensed under Ch��per 73, Ordinance No. 173, t entered into an operations agreement in 1975 pursuant to Section 73. 025 including McCleary and Stubbs Bay Marina. These agreements called for certain physical improvements to be made on each property over a 4-season span running from 1975 through 1978. � � Fesolution No, /p 99 � : Page 6 � � 4. Chapter 73 provides a number of performance standards to be considered in granting or denying licenses including the intensity of . the proposed uses, parking availability, minimum setbacks and buffers from residential properties , maximum hardcover amounts, minimum landscaping requirements , minimum ' sanitation require�nents, security arrangements , the extent o'f use of the public �aaters and compliance with applicable regulations of other gov�rn�nent agencies having jurisdiction, such as the DNR, PCA, LMCD, MCWD and State Fire rlarshall' s Office. II. STUBBS BAY STUDY AREA (See Exhibit A & B) A. STUBBS BAY LAKE MINNETONKA 1. Stubbs ' Bay is the northern most Bay of Lake Minnetonka . The Bay contains 199 acres of water �and 2. 6 mi'les of shoreline. Water access to the main lake is via one channel to Ma�aell Bay, then via another channel to Crystal Bay and a third channel to the . Lower Lake at Smiths Bay, three miles from the marina property. � The Bay has two tributary creeks, one on the northwest corner and one on the northeast corner. 2. Stubbs Bay is relatively shallow with a maximum depth of 37 feet in the center. Roughly two thirds of the Bay is less than 10 feet deep. . 3. A 1978 DNR study reports that 52% of the Bay is littoral (shoals) the bo�tom of' which is 60% sand, 30% clay and 10% muck. Lake color was green with heavy algal bloom and a secchi disc � reading of 2. 3 feet. �E. A 1978 FWBI study called Stubbs�� Bay� the �most eutrophic bay of Lake Minnetonka in terms of algaet,bloom, turbidity, and �nutrient content, even more eutrophic than HalsteadsqBay in the Upper Lake. . 5. A 1973 LMCD study called Stubbs Bay "Potentially Critical" and Ma�aell Bay "Critical" in terms of boat density and lake use � compared to available water space and conflicting types of water • uses . T'his classification was based upon an inventory showing .49 boats stored and . 85 boats in use per.acre of water. The , 1978 DNR study shows an increase in density to . 68 boats stored and 1. 64 boats in use per acre of water, an increase of 38% in stored boats and 93Q/o in active boats in five years . R�solution No. /G'�7 � Page 7 , 6 . A 1971 PCA study by Narza Engineering Company, Barr Engineering Company, Eugene Hickock and Associates, and the University of Minnesota Limnological Research Center concluded ." that Lake rSinnetonka was being subject to accelerated eutrophication caused by existing and increasing urbanization of the watershed and consequent increasing inputs of nutrient elements including phosphorus and nitrogen. 7 . Orono Ordinance No. 213, The Flood Plain and Wetlands Ma�agement Ordinance, adopted October 26, 1978, references and adopts the October 17, 1978 HUD Flood Insurance Study which had been ongoing since rlarch, 1974. This study and Ordinance identifies the following in regards to Stubbs Bay (see Exhibit F) . � . -Ordinary high water elevation: . 929 . 4 ft. MSL -Regulatory flood protection elevation: 932 . 5 ft. MSL -Special flood hazard areas caused by tributary � . to Stubbs Bay (includes Marina property) : Flood hazard zone A-2 (below) 931. 0 ft. MSL • Sheet flow area ( lft, depth) zone A-0 (below) 935. 0 ft. MSL -Regulatory flood protection elevation: �1 ft, above ground � level but not less than 932.5 ft. MSL B. NATURAL LAND FEATURES - . 1. The Study Area topography is of two basic types . The land near the Bay is relatively flat including some marshland and flood prone areas . T'he flat areas extend from the shoreline � back several hundred feet in some areas , notably the large marsh . along the northwest tributary- to the bay. The remaining land is gently rolling to steep slopes rising 30 to 40 feet above lake _ level. Slopes range above 100% along the northeast tributary creek, 50-100% between West Lake S_treet and Tonkawa Road and 5-20% t�ihere most of the residencest'are constructed. 2. The Study Area soils range from Marsh, Lake Beaches and ' Hamel loams in the marshy areas to Kilkenny and Lerdahl loams on. the slopes . All of these soils have generally high ground water elevations (6" to 3 ' ) . The Kilkenny soils have generally high (slow) percolation rates . The Marsh and Lake Beach soils � • perc fast but fail to clean nutrients or bacteria before exposure ` � to groundwater. Consequently, none of these soils is considered suitable for standard on-site sewage treatment systems by the HSWCD, � PCA, M�'WD, MHD, or City. Given suitable slopes , the Kilkenny loams will support mound type sewage treatment systems. Resolution No. /D j� � �e 8 3. Ordinance No. 213 identifies designated wetlands in the . Study Area as shown on Exhibit G as determined by HUD, HSWCD, and MC'[aD. � 4. Vegetation varies from cattails.., sedges , and marsh grasses � in the low areas to willows , su�nacs and low brush on the marshy fringes . Slopes are wooded with various hardwoods including � Oak, Elm and Mapl'e. Wild grasses and ground cover exist on the roadsides and in the �aoods and meadows . Residential lawns have been created around most homes . So;ne slopes and flatter ground has been tilled in the past and even still is occasionally cut . for hay, although of an apparent inconsistent quality. No - commercial agriculture remains in the Study Area. C. HISTORI� DEVELOPMENT 1. The Stubbs Bay Area of Orono was settled in the 1850,' s and 1860 ' s by family farmers for agricultural purposes . • 2. The desirable climate and navigable bays of Lake Minnetonka attracted summer hotel and resort trade in the 1870 ' s , 1880 ' s • and 1890 ' s when Lake Minnetonka became a nationally recognized resort region. Most of the lake area was settled in this time period. 'I'he Stubbs Bay Area was not. • 3. Access to Lake Minnetonka was principally by means of several different railroad and trolley lines none of which came near to Stubbs Bay.� ' - 4. Well after the end of the� grand hotel period, a new, late- building railroad was started' west from Minneapolis. The existing towns of Long Lake and Maple Plain were >.avoided because they � already had railroad service, but the li�.e did dip sauth to pass a short distance north of Stubbs Bay. The first train to Winstead � ran in 1915. This line never became �profitable and was � eventually � abandoned becoming the State' s Luce Line Trail. . 5. Because Stubbs Bay was the only Lake Minnetonka point served . . by this rail line, minor land speculation occurred. � - . Resolution No. /D 9� ' . � Page 9 6. Bayside �ddition to Lake Minnetonka was platted April 18, 1912. 7 . Many homes in the area were built as summer cabins in the � 1912 - 1925 era . There were few year-round houses , except farmsteads , until a housing shortage occurred after the second world �oar. Population rapidly increased in the 1950-1954 period as many of the seasonal cottages were converted for ycar—round use. Only scattered changes have occurred since then. 8. Minor commercial development occurred with the coming of the •railroad. This included a creamery on Stubbs Bay Road at the tracks and a general store near Bederwood Road.. These uses have long been discontinued with the buildings having been removed � years ago. � 9. The Stubbs Bay Marina property was acquired for construction �. of a fishing resort in 1914. The "land" consisted of swamp and marshy lake edge. The lake bottom was hand dredged to provide limited access for rowboats . The dredge spoils were placed in . the swamp to provide a place to erect cabins . Cabins were built in 1915 and the resort was established. Patrons presumably arrived via the new rail line then just opened. 10. This resort was established after the end of grand hotel and resort period. There was little change in the operation between 1915 and 1973. Fishing boat rental continued. The _ resort early began serving as a tavern for local residences . Some of the cabins were sold and some of those were converted . to year round' hbmes .• Other cabins were razed, the last in 1974. Fishing boat rental continued through 1976. The tavern burned in November, 19Z6. 11. By 1977, the only remaining :commercial use of land in the Stubbs Bay Area was the rental of°:.slips at docks connected to the Marina Property. �To on site services were available. � R�solution No. /Qy f�-' 1'age 10 � ' D. TRANSPORTATIOI� - 1. Travel to the Study Area is primarily along �ounty Road 84, • a winding rural section road running generally east and west connecting �ounty Roads 51 and 19 . Current traific volume is less than 1000 trips per day. 2. Secondary access is along Stubbs Bay Road, a City stieet running north and south connecting County Road 84 with U. S , Highway 12 a mile to the north. The intersection at U. S . 12 is less than ideal with cui-ves in both roads and both a grade and a main line railroad coming on Stubbs Bay Road at the intersection. 3. A third access road to the Study Area is County Road 135; Tonkawa Road, also a curv ing rural section road running north and south connecting County Roads 51 and 84. � � 4. County Roads 84 and 135 in the Study Area are designated as scenic parkways in the City' s Transportation Plan. County � Road 84 west of 135 and Stubbs Bay Road. are designated as residential collector streets . 5 . All other streets within the Study Area are city-maintained local residential access streets . All are relatively short . cul•-de-sacs opening off �ounty Road 84 or Stubbs Bay Road. Many intersections have poor or marginal sight distances . Surfacing is deteriorating on most of the local streets. The area includes some of the few semaining city streets with gravel surfacing. 6. T'he nearest public transportation available is the MTC bus line � through Long Lake which operates on South Brown Road and County Roa d 51, 2 miles distant in either direction. �t E. PUBLIC UTILITIES 1. There is no municipal water service available in the Study � - Area . The nearest municipal services are in Navarre or extensions , from Long Lake, Nei�her system can be expanded without major � capital investment. All properties must use individual wells for the foreseeable future. • � � Resolution No. /09�. - � ,�age 11 � 2. There is no municipal sanitary sewer service available in the Study Area , Al1 properties currently use on site secaage treatment systems . 3. A '1974 study by Mc�ombs-Knutson Associates analyzed ground and surface water samples from various locations in the eastern part of the Stu dy Area. Shallow ,ground water samples showed high concentrations of chloride and surfactants . Surface water samples from the unnamed tributary to Stubbs Bay had a high fecal coliforin count. 4. The City instituted a City-wide inspection program with ' the adoption of Ordinance No. 210, T'he On-Site Sewage Treatment �ode, adopted on April 13, 1978.� Some of the homes in the Study � Area were inspected in 1978. The remainder are scheduled for inspection early in 1979. Of 82 known systems in the Study Area , . 36 have been inspected. Of those 36, 3 have been classified as Conforming (properly designed and properly operating) , 31 have been classified as Substandard (existing s}Tstems a�parently • operating properly but with a significant probability of failure � because of poor soil, high ground water or insufficient drainfield area) , and 2 properties have been classified as having nTon-Conforming Systems (those which are failing or are uncapable of operating without creating a pollution or nuisance hazard) . The two -failing systems are outhouses with the cesspool below watertable. The homes are seasonal or weekend cabins . Outhouses have been illegal in Orono since 1961. ' . 5. The 1974 McCombs-Knutson Study reviewed alternative sewerage options including a co�nunity drainfield system. The results �� of the 1979 inventory inspection will be used to update the 1974 study and determine how best to insure proper sewage treatment or disposal for the properties in the Study Area . '-;. � . • F. HOUSING INVENTORY 1. The Study Area contains 82 single family homes most of which exceed 50 years of age. Most homes were constructed as cabins -� in the 1912 - 1925 period and winterized in the 1950 - 1954 era . Some have been expanded over the years. Most have had one or � more remodelings to upgrade the appea "rance of the interiors . � Many have no basements or hand-dug basements. Resolution No . /�9�j � � Page 12 2. Only 3 homes (3% of the total) are 4 years old or newer .�'� having been built since the current zoning became effective in 1975. � 3. Only 6 permits for major remodelings or additions have been . issued for other homes in the Study Area since 1975. � 4. Of the 82 homes , 13 (16%) are located on lots of two acres or larger, 10 (12%) on lots of one to two acres , 12 (15%) on lots of 1/2 to 1 acre, and 47 (57%) on lots of 1/2 acre or less in area. S . Only 5 vacant building sites meet the current minimum lot area requirements in the Study Area . G.� GOVERNMENT SERVICES 1. Fire protection in the Study Area is provided under contract • by the Long Lake Volunteer Fire Department. The station is located 2. 7 miles from the Study Area by the shortest route. Response time is approximately 5-8 minutes from the station or 9-12 minutes from the call. _ 2. Police protection is provided by the Orono Police Department. Response time from a call is 4 minutes on a City-wide average. The actual time on any call depends upon the location of the nearest squad car and whether or not the officer is already involved. All a"reas of' the City are patrolled on an unpredictable but continuous 24-hour schedule. Heaviest patrolling occurs in the urban areas near Navarre with less frequent patrolling in the rural residential areas such as this Study Area. 3, The Study Area is located entirei�.y within Orono School District No. 278 with classes for all grades provided on the main campus � on Old Crystal Bay Road two miles from the Area. All students are � transported by buses provided by the District. � Resolution No, �p�g . � Page 13 4, Local recreational facilities are provided to Study Area residents by Bederwood Neighborhood Park located just north �� of the Luce Line� on Stubbs Bay Road, by the Luce Line DNR nature trail, by a city-maintained fishing dock on Stubbs Bay at Stubbs Bay Road and by direct access to Lake Minnetonka for all riparian property owners . ' The Stubbs Bay fishing dock had been used for boat launching and winter access until 1975 when it was closed to those uses by Resolution No. 594 because of increasing traffic hazards at the intersection of Stubbs Bay Road and County Foad 84, 5. Other typical services provided to all Study Area residents � include a Diseased Tree Inspection and Disposal Enforcement program, State Building Code Inspection and Enforcement, • Environmental Sanitation Inspection and Enforcement including the On-Site Sewage Treatment Inventory and Inspection Program, Animal Control Enforcement, Foadway Maintenance including snow plowing, drainage maintenance of public ditches and provision of Minnesota Housing Finance and Community Development Block � Grant Funds for low and moderate income housing rehabilitation H. DEVELOPMENT TRENDS 1• The upgrading of existing housing stock has been a major � occurrence in 'the City over the last five years . The urban areas of the City have experienced an increasing volume of llomeowner repairs, remodelings , and additions including many complete .rebuildings . As much as 50% - 60% of the urban area . housing stock has been thus upgraded in these five years . The rural areas have experienced a much lower incidence of such work with perhaps 10% to 20% of the existing housing stock having been upgraded in those same five years . 4a . 2. New housing has been dividedtalmost evenly between urban and rural areas . Urban area development has been less evident because it has occurred most frequently on a lot-division, one-house-at-a-time basis . Rural area development has tended . to be in new �subdivisions of from four to ten lots each, all with on-site sewage treatment systems and lot sizes of two to five acres each. Tract development has not occurred because of � the relatively small size of existing parcels (most under 40 acres) and because the rural service areas do not have sewer or water available, � Resolution No. /D�g Pa�14 3. The Stubbs Bay Study Area is somewhat unique in having a � � � large proportion of existing housing on relatively, small � tightly-clustered lots characterized by the [,�est Lake Street � � � � and the Tonka-Crestview-East Lake Street neighborhoods . The � Study Area has had little or no d�velopment of either the . rural or the urban types listed above. In five years , only two subdivisions have occurred, one a lot split and the other having three new and one existing building site. One larger rural subdivision of 12 lots occurred directly south of .the Study Area with five lots abutting Stubbs Bay. :II. THE STUBBS BAY MARInTA PROPERTY ' �. LEGAL DESCRIPTION, OWI�zERSHIP, TAX STATUS . , 1. The Marina property is located between County Road 84 and East Lake Street in the southeast portion of the Study Area as shown on Exhibit B. � " � . The Marina property consists of three separate tax parcels � shown on Exhibit H as parcels 1 - 3. 3. Recorded •ownership of parcels 1 & 3 (Block 7, Bayside Addition and S.E, part of Lot 22, Aud. Sub. 203) is as follows : 1973 and preceding years : Eric Freeman, fee owner _ Orville Keiran, contract purchaser , � 1974 through 1979 : . Orville Keiran, fee owner � . . . . James Mc�leary, contract purchaser � 4. Recorded ownership of parcel 2 (Lot 21•, Aud. Sub. 203) is as ' follows : - �`�. q 1973 and preceding years : Orville Keiran, fee owner � 1974 through 19�79 : Orville Keiran, fee owner � James McCleary, contract purchaser , • � • ' . � Rr_solution I�To. %�c/� � �g� 15 . S . Residentially used properties (parcels 4 & 5 on Exhibit H) have always been separate tax parc�ls from the Marina property " -. and have had separate r�corded o�,7nerships as follows : . � I973 and preceding y�ars : Ja�nes K. Ftlkerson, fe� owner, l�omesteaded 1974 : same as 1973 (sale April ? , 1974) . 1975 - 1979 : James McCleary, fee o��ner, non-homestead T�ay, 1978: unrecorded contract for deed zrom McCleary to Daryl ��• � . Carlson and Patricia Rowlette, current occupants for • Lot 23 (parcel 5) only � 6. Residential parcels 4 & 5 (Lot, 23 and I��,W, part of Lot 22, Aud. Sub . 203) were combined as one registered abstract certificate of title No . 504558, dated May 2, 1962. They have never been subdivided. 7 . Residential parcel 4 (N.W, part of Lot 22) has always been used • as an outlot for dockage and lake access for the residence located on parcel 5 (Lot 23) . 8. Parcel 4 is separated from parcel 3 by a flowing drainage ditch running doti*n the division line. 9 . Tax records list the market value of land and buildings as follows : Pa�• 1'ear Pnrcel L•+nd (Mly buiidincs Total Tax . 1973 1' ' 2;100 -- 2,100 94.36 2 9,500R 6,]OOR 27,900 766.76 homestead 10,OOOC 2,300C -- 3 ]2,000 -- 12,000 539.26 33,600 E,400 42,000 1,400.35 Narina � 4 1,500 -- , 1,500 bJ.40 'S 4,200 13,500 17,500 382.98 homestead ��, q 5,700 13,500 19,000 G5� 3R Fesidence 1975 1 2,200 -- 2,200 105.96 2 10,000R E,400R 29,300 1,361.78 non-homestead ]0,500C 2,400C -- � ' 3 12,600 72,600 612.36 35,300 8,800 44,100 2,080.10 Marina ,. , 4 1,600 -- 1,600 77.06 S 4,400 14,200 15,600 357.36 homestead , . 6,000 ]G,200 20,200 G34.42 Fesidence ' • ' � 1479 1 10,000 -- 10,000 220.48 2 51,500C -- 51,500 1,591.86 non-homestead 3 17,900 17,900 784.26 • 79,400 � -- 79,400 2,596.60 Marina . 4 2,500 -- 2,500 88,18 5 _7,600 24,900 32.500 647.62 homestead 10,100 24,900 35,000 _j�RO Fesidence Resolution No. /0 99 � � Page 16 ' � � � 10. Public records indicate that Orville Keiran operated ' "Stubbs �Bay Reso'rt" from 1956 to 1973. 11. A summary of the above information is as follows : � � . � . a) 1956-1973: Keiran operated Resort while living in cabin on parcel 2 (Lot 21) . Parcel 2 owned in fee, Parcels 1 & 3 being purchased by contract for deed. b) ? - April, 1974: Fulkerson living on parcel S (Lot 23) with lake access on parcel 4. � c) 1973: Keiran becomes fee owner of parcels 1 & 3 for sale ' � to McCleary. � . . d) April 25, 1973 - April, 1974: �cCleary operates Marina on parcels 1-3 as contract purchaser from Keiran. Keiran • moves off property; cabin razed. • e) April 24, 1974: McCleary purchases �residential parcels • 4 & 5 from Fulkerson, in fee,, and updates registered ' abstract. f) April, 1974 - November, 1976: McCleary operates Marina , on parcels 1-3 and attempts to expand use onto parcel 4. � House on parcel S (Lot 23) rented. g) November 16, 1976: Fire destroys remaining Marina buildings . �, . h) November, 1976 `- May, 1978: McCleary rents dock space. . i) May, 1978: McCleary sells parcel 5 only (Lot 23) to � Carlson by contract for deed (not recorded) . � j) 1978: McCleary rents docks, attempts to sell Marina . ` (See Part IV, below. ) - i . . . . , . . . Resolution No. /0!9 • Page 18 • 7. Stubbs Eay in front of the Marina property is generally � shallow and mucky with water depths well under 10 feet. The Bay in this area has been dredged at least twice in the past, originally in 1914 when the existing scaamp was filled in becoming the Marina property, and again in 1934 or 1935 when the water level was very low. Both times , the sedimentation has returned to fill the area such that navigable access has again be�n hindered. 8. The characteristic loose sediment on the lake bottom in this area is prone to frequent disturbance and movement tahen power boats operate above. it. . Dr. John Wood, director of the F�WBI, states ' that, in r�spect to this sedimentation, "Since Stubbs Bay is small and very shallow, it is clear that a multiple dock for large power � boats would make the situation worse in several respects : � , 1. T'he movement of sediments in shallow areas will cause increased nutrient wash-out zrom the sediments into the lake. 2. The adjacent shoreline properties will be sealed in by � a sediment bank causing stagnation especially on the �� shoreline southeast of the project and causing residents problems with filamentous algae, aquatic macrophytes , • and foul odors from stagnation. Also, these residents will have to dredge their way out eventually if they wish access to the lake. " 9. Because of the shallowness of Stubbs Bay, the principal boat type stored at the Marina in the recent past has been small • 16 to 20 ft, run�bouts •and pontoon boats. C. RESORT HISTORY 1. The Marina property was acquired�'-�for construction of a fishing resort in 1914. The "land" consisted of swamp and marshly lake edge. The lake bottom was hand dredged to provide limited access for row- . boats , The dredge spoils were placed in the swamp to provide a , place to erect cabins . Cabins were built in 1915 and the resort was established. Patrons presumably arrived via the new rail line then � - just opened. � � Resolution No, jpy� - � :� Page 19 � , 2 . Stubbs Bay Resort operated essentially as a fishing access point from 1915_ to 1973. The original resorts kept rowboats pulled on-shore for use by fishermen and cabin renters . Services included cabin rental, boat rental and bait sales . � 3 . The property was zoned "Residential" on November 20, 1950 by the Orono Town� Board. The resort then became a "non-conforming" use of land. ' 4. Keiran purchased the property from Freeman in 1956 and in turn sold it to Mc�leary- in 1973. � - S . On March 11, 1957 , . when Ordinan�es 9 & 10 were adopted, ' Stubbs Bay Resort remained a non-conforming use in a residential zone subject to a ten-year amortization period . � 6. The first City dock license was issued in 1962 for the keeping of 18 rental fishing boats as were all licenses in the years 1962 through 1967. . • 7 . License 282 issued April 23, 1964 carries the .notation "Approval and. issuance of this license does not necessarily � cons�titute approval of extended non-conforming use of residentially zoned property" . 8. In September of 1964 through January of 1965,' Keiran appeared � , before the City Council and Planning �ommission to discuss plans �or the Resort and to ". . .request clarification of the zoning ordinance � whereby their� property would revert to� residential use in 1967, and � to present long range plans of their objectives for the future, which would be impossible under the present zoning of their property" . � (Council Minutes 9-14-64) 9 . A building permit was denied h� the Council on October 12, 1964 and rezonirfg was requested on November 9 , 1964. The item was "being studied" throughout 1965 and 1966. � 1'0. The February 6, 1967 license application by Keiran, Exhibit K, still lists the use as "non-conforming" one month before the end of the� 10-year amortization period. The current use of fishing boat � rental and bait sales is clearly indica ted. The dock plan shows the use of parcels �2 & 3 only with one ''cottage" and 18 slips: • shallow water depths indicated. Resolution No. /D 59 � . � Page 17 B, nATURAL FEATURES 1. The Marina property (parcels 1-3) contains 1. 94 acres of land above the ordinary highwater el�vation of 929 .4 feet MSL. The land is essentially flat rising to elevation 934+ at the eastern most point. There is approximately 250 feet of shoreline on Stubbs Bay and approhimately 280 f�et of depth to the lot along the south side. Drainage is provided .by direct surface floEaage and by ditching along �ounty Foad 84. (See Exhibit I. ) 2. Soils on the Marina property are primarily Lc sandy Lake Beach with some N�a Marsh and Ha Hamel Loam. Al1 these soils . have ground water tables within 6" or 1 ' of the surface. Ordinance No. 210 prohibits any soil absorption type on-site sewage treatment system on any of these soils because �of the , � high pollution potential. � � 3. The 1978 HUD Flood Insurance Study identifies Special Flood � Hazard Areas covering the entire Marina property: See Exhibits � F & I. 7one A-2 below elevation 931 MSL; the 10-Year Flood Plain, covers 1/3 of the site. , Zone A-1 between elevations 931 and 932 MSL, . the 100-Year Flood Pla in, covers the center 1/3 of the s ite. . Zone A-0, the 500-Year Sheet Flow Area , covers the east 1/3 of the site as well as County Road 84 and surrounding properties . 4. �onstruction in the flood plain must occur no lower than 1 ft, above the ground level at any point, or elevation 932. 5 MSL, whichever is higher, according to City, State and Federal requirements. _ , . . 5. Vegetation on the Marina property consists of some elm and willow trees along the south property line and the shorelin�, with additional willows in the eastern corner. Weeds and wild grasses cover most of the ground. Cattails , sedges, and bullrushes grow along the entire shoreline and thet�northwest corner on Parcels 3 and 4, particularly along the ditch line dividing those parcelst (See Exhib it J) � . 6. There are no mapped-designated wetlands on the Marina property or adjacent residential property but the elevation of the property, � the actual soil types and the vegetation types all combine to define parts of the property as "wetland" according to the definitions ocontained in Ordinance No. 213. ' Resolution No. /�99 � . � � Page 20 11. On September 5, 1967 , effective January 1, 1968, Ordinance 93 established the first B-2 Lakeshore Commercial District. The Stubbs Bay Resort property was among the areas so designated. The legal description for the B-2 district was written to include Parcels 1 - 4 plus adjacent Lot 25 : B-2 LAKESIDE �O��IERCIAL The following property in the north 1/2 of Section 5, To�,7nship 117, ..Range � 23; Block 7 of .Bayside Addition and Lots 21, 22 and 25 of Auditor ' s Subdivision ��203 . (See Exhibit D-2) 12. This commercial zoning occurred almost 1 year after the end of the 1957 10-year amortization period. At the time it occurred, according to Keiran.' s 1967 license application, Parcels 1 - 4 plus Lot 25 were rezoned but only Parcels 2 & 3 were being commercially used. Parcel 1 may or may not have been owned or used by Keiran. Parcels 4 & 5 were separately owned and used as homestead residen tial. : Lot 25 was and is also separately owned in common with residential Lot 24. Lot 25 was and is also under water. . 13. Keiran' s 1968 plan (Exhib it L) and application was for a revised dock layout and an increase from 18 to 32 boats . Still � only Parcels 2 S: 3 are shown on the plan. A public hearing was • held and objections are on record but the license was issued. 14. City licenses issued 1968 through 1973 were for 31 boa ts (13 rental boats plus 18 rental slips) including the first licensing of rental slips . 15. A 1969 boat inventory for the Harza Report counted 25 boa ts at the Stubbs Bay Resort. � 16. The 1970 license (for 31 boatts) specifically noted a required z side setback of ten feet for docks . 17 . Keiran sold Stubbs Bay Resort, on �ontract for Deed, to McCleary on April 25, 1973. The 1973 City license was applied for and issued to Keiran for� 31 boats. McCleary never applied to the City for a license transfer or a new 1973 dock license. • Resolution No. /Gy9 � , �e 21 � . 18. McCleary did apply to the LMCD on June 20, 1973 for an - LMCD dock license wherein he certified "that no changes are to � � be made in the dock use area . . . . during the 1973 season; . that . the scaled drawing or certificate submitted with last year ' s - application will be appli�able to the license applied for ;" � The attached �nap submitted to the LM�D showed new docks and "60 boats". See Exhibits M-1 and M-2. 19 . TicCleary on August 13, 1973 did apply to the City for a �onditional Use Permit for food sales attaching thereto a site � plan clearly showing the use of only Parcels 1 - 3. See Exhibit N. � � 20. Mc�leary in 1974 applied to the City and was licensed for 31 slips on April. l, 1974. The plan submitted (Exhibit 0) was identical to Keiran's 1968 Dock Plan (Exhibit L) and clearly � • shows the "North Property Line" showing use of Parcels 2 & 3 only, not Parcel. 4. This license application was never revised. 21 . McCleary purchased the Fulkerson property, Parcels 4 & 5, � in April, 1974. . 22. McCleary constructed a new dock layout not in conformity with the �ity license. The layout encroached and used Parcel 4 for the first time. The structure contained 75 slips , not 31 . See the Inspector's letter and map of July ll, 1974, Exhibits P-1 and P-2. � . 23. McCleary' s res�-sonse ort July 16, 1974 admits expansion without �ity .approval and expansion onto residential property. McCleary �laims LMCD approval for 60 slips based upon an attached map indicating 48 slips. See Exhib its Q-1, Q-2, & Q-3. . 24. The City Council 's response to this:. position is contained in the Minutes af th�e July 23, 1974 meeting: � "The City Council instructed the Administrator to . • draft a letter to Mr. James McCleary stating that the City sets the precedent for the licensing of marinas, not tfie Lake Minnetonka Conservation District, . and that he would have to curtail the usage of his • • residential usage and abide by zoning •standards for � that �property at 3470 Bayside Road:" Resolution No. /0,99 � Page 22 ' 25. Attention in 1974 and 1975 was directed at proposals for creating a restaurant on the property and for review of "BURAK' S • STUBBS BAY MARINA �AFE", with soup and sandwich approval granted by Resolution No. 575 on February 25 , 1975 . � 26. The 1974 �ity wide zoning code amencL-nents were adopted December 19 , 1974 becoming effective January 1, 1975. B-2 performance standards were revised. The legal description of the B-2 zone in Stubbs Bay was not changed despite 1973 and 1974 problems and statements regarding "residential" property (Parcel , 4 and Lot 25) . " 27 . Mc�leary' s 1975 City license application was for 66 slips in the same dock layout constructed in 1974. Mc�leary stated his 1974 LMCD license was for 66 slips when in fact it was for 60 slips based upon a 48 slip plan. . 28. McCleary entered into a 73.025 "Operations Agreement" with the � City on May 15, 1975 and Resolution 604 was adopted on that date � issuing a license for 66 slips to Stubbs Bay Marina per the plan attached as Exhibit R. Parcel 4 was included but "residential docks removed" was noted on the original drawing. 29 . McCleary' s 1976 licerise application requested another increase to 66 water slips plus 36 land slips, total 102 boats . - 30. A site inspection on June 18, 1976 recorded 66 water slips � plus 4 slips still o� the "residential" (Parcel 4) property. 31. � The 1976 license No. 1205 was issued 'for 66 water plus 36 land slips . 32. On November 10, 1976, McClea�ry applied for a Building/Conditional . Use Permit (File ��201) for construction of a two-story restaurant- marina building, see Exhibit S. 33. On November 16, 1976, the existing marina office/tavern � . building was destroyed by fire. . . � 34. On January 24, 1977, application �k201 was denied by Council: � � Resolution' No. /09� � Page 23 . 35 . McCleary' s 1977 license application requested another increase to 72 water slips plus 120 land slips , total 192 boats , � with the notation that "boat rental ceased in 1976". 36. On February 17 , 1977, McCleary' s bui?ding plans were revised � up to an 80 X 200 ft . building (File No. 234) which then was � revised down to a 40 X 80 ft. service building without restaurant approv�ed by the Council on March 17 , 1977. See Exhibit T. � 37 . On Nay l7 , 1977 , McCleary' s 1977 .LMCD license application was sent to the City including a site plan showing Parcels 1 - 3 only, excluding Parcel 4 (Exhib it U-1) , and a tri.angular dock use � area and new dock plan (Exhibit U-2) providing for 66 slips in • the dock use area for Parcels 1 = 3, excluding Parcel 4. � • 38. A July 7 , 1977 City inventory recorded 43 boats at the AZarina in docks built per the 1974 arrangement. � 39 . The 1977 City dock license was _issued by Resolution No. 816 � on August 8, 1977 , for 63 water slips and no land slips based upon the LM�D dock p1an, Exhibit U-2. McCleary signed the resolution in agreement thereto. . � 40. Also on August 8, 1977, McCleary applied for a conditional use permit (File No. 294) to� dredge the harbor to provide navigable access for all slips shown on the LMCD plan, Exhibit U-2. 41. On November 14, 1977, McCleary applied to the State for liquor and beer licenses despite City approval of a service �uilding only. 42. On December 20, 1977, Mc�leary submitted a revised dock plan � and a revised dredging plan for Application No. . 294. This same plan was submitted for the 1978 license application on January 15, 1978. The existing (i974) docks were admitted by McCle�ry to be hazardous due to ari' injury in 1977 . T'he new dock, plan used all Parcels 1 - 4. See Exhibits V-1 and V-2. ' 43. On December 21, 1977, Building Permit No. 3696 c�as issued � • for the 40 X 80 ft. service building approved by the Council . on March 17, I977 . � � � . • Resolution No. /D 9 9 � � Page 24 � � 44. On Niarch 10, 1978, the City received the Preliminary Report � of the HUD Flood Insurance Study identifying the Marina property as being in a flood hazard area . - 45 . On March 30, 1978, the City Council reviewed options for the Marina property with rlcCleary including formal and infoi-maI applications for various dock layouts, dredging and rezoning of "residential property" (Parcel 4) to Commercial B-2. The direction given at that meeting �aas that: a) All docks must fit in the LMCD dock use area . b) General harbor dredging would not be approved, only . - � dredging for access to the launch ramp. • c) Dry stacking of slips was to be considered before dredging if any slips were not accessible due to low . �va ter. � , , � � d) A maximum of 66 slips were to be considered and those ` only as a continuation of a non-conforming use. _ 46. On April 13, � 1978, the City Council adopted Ordinance No. 210, � the revised On-Site Sewage Treatment Code. � 47. On April 26, 1978, McCleary applied for rezoning of part of the Marina property to permit a revised dock layout (File No. 390) t� per Exhibit W, 48. In May, 1978, McCleary sold Lot 23 (Parcel 5) to Daryl Carlson . b.y Contract for Deed, splitting this lot from Lot 22 (Parcel 4) .without subdivision �and without changing the Registered� Property Abstract. 49 . On June 26, 1978, the Planning Commission held a, public hearing on the proposals , received adverse comments and recommended denial of the file ��390 rezoning.`�_t . z 50. In July and August 1978, City inventories recorded 35 boats at do�ks in place in the 1974 configuration. � �51. On August 15, 1978, the City Council adopted Resolution No. 929 � denying the rezoning appiication file No. 390. � � Resolution No. /C� 5'� Page 25 � � 52. On August 29 , 1978, the City Council adopted Resolution No. 938 identifying many problems relating to increasing boat • density on Lake Minnetonka and affirming a policy of refusing to grant increased boat density to any commercial marina . � 53. On September 26, 1978, the City Council adopted Resolution No. 943 refusing to r�neca building permit No. 3696 which expired on April 21, 1978 without any construction having begun. . 54. On October 26, 1978, the City Council adopted Ordinance No. 213, the Flood Plain Management Ordinance referencing and adopting the October 17, 1978 final HUD Flood Insurance Study. . 55. On I�TOVember 14, 1978, George Johnson appeared before the � � �ity �ouncil with an informal plan for reconstruction of the Marina including a new storage/service/lounge building, new docks , , new landscaping and shoreline changes . The dock use area is • represented as being the same as the 1977 LMCD dock use plan (using Parcels 1 - 3 only, although the Johnson. plan includes Parcel 4 for landscaping) . � 56 . Chz December 18, 1978, the City �ouncil adopted Resolution No. 971 issuing after-the-fact the 1978 dock license for 66 slips and requiring removal of the exist'ing hazardous docks before any � use in 1979. 57 . On January 12, 1979, Johnson applied for a 1979 corimiercial dock license for Stubbs �Bay Marina as agent. for McCleary. The application was incomplete in some respects . A completed application � was returned "to ' the �City on February 5, 1979 being revised to show Johnson as sole "applicant". The dock plan proposed, Exhibits X-1 - ' and X-2, are identical to ,�tthe informal plan proposed in November, 1978. 58. On January 23, 1979, the City Council adopted Ordinance No. 219 _ a General Moratorium on the Stubbs�, Bay Area. • S 59 . On February 27, 1979, the City Council held a Public Hearing regarding land use and development in the Stubbs Bay Moratorium Area and particularly regarding the Johnson application for development. The Council on that date directed staff to prepare � � this Resolution regarding facts and conclusions . � �' . Resolution No. /095' � Page 26 . 60. On March 15, 1979, the City received a letter from McCleary � advising that he was sole applicant for Stubbs Bay Marina . The City replied on March 15, 1979 with a copy of Resolution No. 1005 adopted March 13, 1979 regarding the City Council' s intent concerning � development of the Marina property. . . • 61. As of April 16, 1979 , the �ity has not received any 1979 �ommercial dock license application from McCleary. 62. As of April 16, 1979 , the City staff is aware that newspaper ads have been placed advertising dock space for rent at Stubbs . Bay Marina with Daryl Carlson, the Contract for Deed purchaser of Lot 23 (Parcel 5) collecting money and acting as agent for - . the Marina regarding dock rental for 1979 . ' • . 63. The 1974 docks still remain in place except where they have • deteriorated and collapsed due to ice damage and deferred maintenance. • D. DEVELOPMENT TRENDS ' . 1. The Stubbs Bay Resort was originally conceived and developed � as a fishing access port serving a limited neighborhood and a small number of "resorters". Conunercial activity consisted of cabin .rental, boat rental and bait sales . . 2. Initial development consisted of construction of the . small cabins plus a .re,sort.,office. _ � 3. A limited number of docks were constructed to tether the fishing boats . � . 4. At some point, the resort began serving as a neighborhood ` tavern adding on-sale beer to the tcommercial activity. t 5. In April of 19.54, a Township Building Permit was issued for a "log, siding cabin (SIC) " which apparently was the building used as the tavern and resort office, at least since that time. 6. Upon sale of the resort to Keiran in 1956, the activities remained as above. � ' � . . . : . Resolution No. /Dy'� � ,r- ; `� Page 27 7 . Rental of "boat slips" as opposed to "boats" only did , not begin until 1968, 54 years after the Resort was established. ' 8. Ev�n then, concnercial activity did not expan.d until McCleary became owner/operator in 1973. Upon his purchase, the number of boats proposed to be kept on the property immediately increased over 100%. Stubbs Bay "Resort" became Stubbs Bay "Marina". 9 . After McCleary ' s purchase, the neighborhood tavern became "Burak ' s StLbbs Bay Marina Cafe" and food sales were instituted or greatly e�panded. . 10. Between 1973 and 1976, McCleary proposed expansion of boat density irom 31 to 102 or 330%. Boat rental ceased in 1976 in favor of slip rental only. � - . 11. Between 1973 and 1977, Mc�leary proposed several times that a full service restaurant./bar/lounge be constructed and operated on the site. The existing structures were proposed � to be replaced with various new buildings, some as large as 16, 000 sq. ft, and/or two stories high. 12. �In 1978, Johnson' s proposal was originally made as a "private dock club" for slip rental to a Iimited number of private club members . � IV. RECOMMENDATIONS TO THE CITY COUNCIL _ , , . A. EVO�UTION OF THE STUDY � . l. The citizens and elected officials of Orono have been deeply involved in land use planning and; environmental protection ever since the post war development surge when the Town Board enacted the first zoning regulations in 1950. Aqfter incorporation, the. Village Council continued the periodic review and amendment of zoning regulations . The national environmental thrust of land , planning was anticipated in the early 1960 ' s when the first septic system and wetlands ordinances were instituted. The �• active development of comprehensive plans dates to 1965. Orono 's first published Comprehensive Guide Plan in 1974 was among the � few local plans to receive Metropolitan �ouncil review and approval. Resolution I�'o. /0�9 Page 28 � � . 2. The 1976 Metropolitan Land Planning Act mandated review of Orono ' s 1974 Guide Plan, but major changes in Metropolitan Plans , . the energy crisis and resulting shift of' development pressures to the inner city, and a four year history of experience using the plan, all combined to establish 1978 as the year for intensive study and review of the City' s established goals and policies . � 3. Into this climate came the situation involving the Stubbs Bay Marina property. McCleary had been actively pursuing many various plans for increasing the commercial use of the property. T`he fire and resulting lack of pY�ysical development or maintenance drastically changed the factual situation from that existing in 1974 when the existing Comprehensive Guide Plan and Zoning . Ordinances were being developed. Then, in the fall of 1978, Johnson approached the City Council with yet another plan for � commercial develop�nent of the property: 4. The Council and the City staff spent several months reviewing � the then informal plans with Johnson. Many issues were uncovered, many factual questions arose. � � S. Upon receipt of a� formal license application from Johnson in January of 1979, formal review began. The Planning Commission was involved. Staff �was directed to carefully review past history at the marina, past lake use history, general area-wide planning concerns and past �ouncil policy regarding planning and marina , licensing.. 6. Because the facts, and issues were complex, involving not only the marina but the entire Stubbs Bay Area , the City staff and � 1'lanning Consultant both recommended that the Council adopt a . general moratorium to permit proper an d complete review of the . land use planning concerns involved. � 7 . 0� January 23, 1979, the City `Council adopted Ordinance No. 219 , . establishing the Moratorium for six months . The City Council also called a Public Hearing for the most general involvement of the . public in the planning process . Council directed that all possible resources be tapped for review. The Council directed staff to gather recommendations from the public, city consultants , local � - experts , the Planning Commission, other applicable government : agencies and various City staff inembers having departmental interest � in de�elopment of the area. Fesolution No. /D 9� � � Page 29 � 8. The result of this review is this Resolution setting forth the findings, recommendations , conclusions and directives ` resulting from the complete study of the facts and issues . . � B . THE NEIGHBORS AI��D GENERAL PUBLI� . l. The City �ouncil receiv ed written and verbal comments and reco�nmendations regarding the Stubbs Bay Study Area and the proposed develop:nent of the Stubbs Bay Marina Property from _ residents� of the area . . All co�r►ments and letters were entered in the record of the Public Hearing held on February 27, 1979 . i 2. The Public Aearing was advertised in the official newspaper of Orono (The Lake Minnetonka Sun) on February 7, 1979, February 14, 1979 and February 2I, 1979 . All residents and property owners affected by or adjacent to the moratorium area were also sent a direct-mailed notice explairiing the issues to b e dis�ussed. See Exhibit Y attached. 3 : Fifty (50) persons signed a�n attendance list as being present �i at the Public Hearing. The Council minutes recorded general . discussion as well as specific conunents by identified individuals . 4. A petition signed by 42 persons was entered into the record stating: "Whereas the undersigned Stubbs Bay area resident and concerned citizens recognize the fragile ecologic and demograph•ic�balance of Stubbs Bay, we hereby petition all authorities with jurisdiction regarding Stubbs Bay usage . � to deny authorization for a marina in any form at the site of the present Stubbs Bay Marina . It is apparent that the present "spot" zoning is nonconforming and out of character with the neighborhood and environs . We believe the present marina site should be returnec� to residential zoning category. In the meantime, under no circumstances should the numbers of slips be increased. " 5. A petition signed by 32 persons was entered into the record . stating: "We support the application of George R. Johnson for � a permit and license to rebuild. and operate the Stubbs Bay� Marina ." .Resolution No. /099 ' � Page 30 6. Three letters were received from Stubbs Bay Area residents and/or property owners stating views against the Marina proposals and one letter from a resident stating views favoring the proposals . � 7 . Cne letter was received favoring municipal sewerage of the Stubbs Bay Area , . 8. Mr. Douglas �arney, attorney, and Air. John Howe, architect, . spoke for Mr. Johnson explaining details of the Johnson proposal for Tiarina development and answering qUestions regarding sGme. 9. At least eight identified persons spoke for the record • regarding their opinions concerning study area an d marina development most speaking in opposition to marina development. � 10. An informal poll was taken of persons present at the hearing. The Council minutes state: "It appeared that the majority present favored a limited � � use of the area as it is now, opposed to a full marina use, although the poll was not conclusive. " C. ORONO PLANNING COMMISSION . l. The Orono Planning Co�nission has officially reviewed and. acted on all applications by Mc�leary for Marina development since 1976 including:• � . ��94 1-15-76 Conditional Use Permit - Restaurant ' �k2�01 11-10-76 Building Permit - Restaurant ��234 2-17-77 Building Permit - Marina Service ��294 8-8`77 Conditional Use ��ermit - Dredging � ��390 4-26-78 Rezoning t' . � 2. The Orono Planning Co�nission has officially reviewed all Commercial Dock Licenses , including the license applications of Stubbs Bay Mariria , since at least the 1975 application. Review has included detailed review by the officially established � Marina Committee consisting of at least two Planning Commission members and one Council member as well as subsequent review by • the entire Planning Commission. ' P.esolution No . /�9� � � Page 31 . 3 . The Orono Planning Commission has revietaed the Johns proposal since it was first informally made in the fall of 1978, with the Planning Commission having received all of the documentation and memoranda i.hat the Council received regarding this proposal. 4• The Orono Planning Commission members submitted individual recommendations to the Council for their review at the February 27, 1979 Public He�ring. Nember Frahm reconrnended permitting �he Johnson proposal ; Members Hurr and Hannah recommended restrictinQ on the property, Member Hammerel andrCl-�airmangWilsona use .. recommended denial of the Johnson a of the property for residential usePonlca�1on and rezoning � Y. (See Exhibit Z. ) • D. GOVERI�TMENT REGULATIONS 1• The Lake Minnetonka Conservation District, established by the State Legislature in 1967, . regulates use of the lakeshore and public waters of Stubbs Bay by the rules and � regulations contained in LMCD Ordinance No. 1. Sections applicable to Stubbs Bay NL�rina include the followin : g a- ) "Section 2. 04; No Vested Rights . No person holdin a license or permit pursuant to the ordinances of the g district shall gain thereby a vested right in the license or permit. The use of the lake shall remain subject to regulation as the public interest requires . " b. ) Section 3�. 02 provides criteria and performance standards for maximum allowable encroachment of private structures into the public waters . T'he maximum "authorized dock use area" applicalile to the Stubbs Bay Marina property is shown on attached Exhibit AA-1, a copy of the Johnson proposal � and Exhibit AA-2, a copy of the `clocks erected in 1974 by Mc�leary which dock re�nants are still in place in 1979, Neither the Johnson proposal nor the 1974 McCleary docks confonn to these LMCD requirements . McCleary' s 1977 dock - plan (,Exhibit U-2, proposed but never erected) is the only dock plan since Keiran's 1967 plan (Exhibit K-2) which meets . . these LMCD requirements . � . Resolution No . /4 99 Page 32 , � � . . c. ) Section 3. 03 provides for dock construction standards . ' "Subd. 3; Safety: Multiple docks or mooring areas and � commercial docks may be constructed of such materials and in such manner as the owner determines , provided that they � shall be so built and maintained that they do not constitute � � � a hazard to the public using the waters of the lake. " .. : � i�icCl�ary in his January 15, 1978 letter to the City . . � � (Exhibit V-1) and the City in Resolution No. 943 and , ' Resolution No. 1005 have both identified the remains of the 1974 docks as having deferred maint�nance to the �oint of being hazardous to the public. � :.;>•:--:-.::: d. ) Section 3. 08 provides for licensing of multiple docks. Subdiv. 2 provides in part that license applications contain ". . . . . a showing that all requisite permits , licenses and approvals from the local municipality have been obtained . . . . " which was clearly not the case in • 1973 when Keiran received a �ity Iicense for 31 slips and McCleary applied for and .receiv ed a LMCD license • for 60 slips without notifying the �ity. Subdiv. 6 " . • provides in part that ". . . a licens ed multiple dock or mooring area shall be maintained in a structurally safe ' condition and shall be maintained in a neat, clean and orderly conditi on at all times . " . 2. The Minnehaha Creek Watershed District, formed May 9, 1967, � by order of the Minnesota Water Resources Board acting under authority of the State Legislature, regulates use and development or alteration of all lands within the Watershe.d including all lands in the Stubbs �ay �Study Area . The adopted Rules and Regulations of the MCWD applicable to the Stubbs Bay Marina �.• • property include the following: � a. ) General Policy: "The purpose of the MCWD regulations is to protect the public health and. welfare, natural assets � and resources of the district, and to i{nsure orderly - development of the land adjacent and contiguous to Minnehaha �reek and other streams, lakes and marshes of the watershed . � district. " , ' � "The managers are also concerned with the protection of the � ' . natural topography and vegetative setting of the land and . � • water areas of the district in order to preserve the same for 'present and future beneficial uses and to prevent unwise and destructive development. " , Resolution No. /D�9 • � Page 33 . b. ) . Local Government Responsibility: "In the management - of the land areas of the district, the primary control . and determination of land use remains with the local municipalities ; however, as development pressures increase, it becomes essential that the critical land and water areas to be retained be identified in the municipal land development guid�s , drainage plans, and in the municipal flood plain and shoreland ordin�nces . Once such ar�as are identified, they should be further protected by appropriate zoning and by assessment and taxing policies of the municipalities ." c. ) Flood Pla in Regulation: "The managers decla re that because of private and public expenditures in the improvement and development of the land and water areas subject to inundation by flood waters , it is in the best interests of the public health, safety and welfare to plan and regulate the development 'of the land area abutting the lakes, permanent watercourses and marshes of the district in accordance with sound scientific principles and data . • In addition to the standards and criteria of local ordinances , improvements will not be allowed in the shore and/or flood plain areas that will adversely affect the ability of the marshes , swamps or adjacent shorelines to act as a filter to the permanent surface waters of the district, and thereby . prevent or reduce pollutional discharges directly to such waters or adversely affect the efficiency or unduly_ restrict the water-carrying capacity of the channel . " d. ) Dred'ging in or. Related to Water Areas : "The managers desire to .minimize detrimental environmental change to - public waters, to maintain natural shoreline characteristics and to maintain and improve general recreational and wildlife- fishery characteristics of lakes and streams. '-t. A permit from the watershed distri�ct will �e required prior to any dredging in the beds , banks or shores of any permanent ' watercourses , lakes or marshes of the district. . _.Dredging will not be allowed above the ordinary or natural ordinary highwater mark onto the abutting shoreland or into � upland areas adjacent to public waters . In the case of Lake Minnetonka , no dredging will be allowed above Elevation 929 .4 � M.S .L. (1929) datum. Resolution No. �099 ' • Page 34 Applications for permits to dredge in the beds of the . public waters will be considered solely for projects � that can be limited to maintenance dredging or remova 1 � of siltation. . � , Applications will not be considered for dredging in the beds , banks ,�or shores of public waters , or of tributary streams or� watercourses , permanent or intermittent, which would provide for the enlargement of a natural �aatercourse or the artificial creation of a channel to connect adjacent backwater land areas to the applicable � . lake or stream of the district. " � � e. ) Other Work in beds and banks of water areas : "It is the policy of �the board to deny permits for work . . . .in t�e beds or banks. of public waters unless it is in . � the public interest and consistent with state policy, � � municipal l�and development guides and drainage pla�ns , and � • ' in conformity with. the overall plan of the district. " f: ) Municipal Drainage Plan: - . � ."Since surface water can be up to, ten times as nutrient- � laden as raw sewage and since the board of managers has � ' previously required setting or filtration basins in new . . , .storm water drainage systems discharging directly to the . waters of the district, it is the policy of this district � to avoid d�i"rect surface water drainage to Minnehaha Creek, . - � Lake Minnetonka and all •other public waters of the district. " � "It is the policy of th� managers that each municipality shall prepare a municipal drainage plan for the management and transportation of surface water :resulting from urban � - development. Each municipality and thez district should identify in the municipalities ' land development guides and .� � drainage plans the swamps and marshes to be left in their . � natural state.,� Such designated areas should not be used as � � . dumps, fill. sites , or otherwise altered without specific - written permission of` the managers . " �. . . ' Resolution No. /D 99 Page 35 � . � "In order to provide for coordinated management of surface � . \ waters , a developer of land shall submit to the municipality a surface water drainage plan which is in conformity with � the municipal drainage plan. In the absence of an approved municipal drainage plan, the municipality and the developer of land adjacent to lakes, permanent watercourses and marsh areas which are directly tributary to such water areas rriust file a drainage plan with the district and obta in the manager 's approval of the drainage plan prior to the commence- ment of any land improvement. " ::: � g. ) Land Use and Soil Characteristics : , , . "The managers discourage the development of land areas where sanitary sewer is not available, areas �with inadequate soils , and areas unsuitable for on-site soil absorption � � sewage disposal facilities . " � . "A11 permit applications for land improvements shall show the soil type and the soil limitations for the intended land use as � stated in the "Hennepin County 1969 Soil Survey Report. If soils limitations for the intended use are stated in the above reports, a plan or statement indicating the conservation practice or practices to be used to overcome soil limitation shall be required as part of the permit application. " h. ) Placement of Structures on Lots Riparian to Public Waters: "The managers desire to establish setback. requirements for new or replacement structures, other than boat houses, piers, � " � and docks , located on the shoreline of public waters within the district in order to provide safe and sound building sites . and to preserve the aesthetic qualities of shoreland areas . It is the intent of the managers �that setback requirements for shoreland areas within the district conform with the � standards established by the Department of Natural Resources � pursuant to Minnesota Statutes Section 105.485 for various I classes of public waters whether or not public waters within I � the district are formally so classified. " � - � . ' ' i t , 1 Resolu�ion No. /oyy' Page 36 � � "The minimum setback for all new or replacement structures , , except boat houses , piers and docks , on any lake in the district shall be at least 75 feet from the ordinary or � natural ordinary high �aater mark in conformity with the standards established by the Department of Natural Resources for .general development lakes . In reviewing applications ' for variances for replacement struc�ures or for new structures in areas that have already been platt�d and approved or partially developed, the �anagers will consider existing adjacent � structures and patt�rns of dev�lopment. Any such construction must also be approved by the municipality in , which the property is located. " � i. ) Erosion and Sediment Control: ' "The managers are concerned with minimizing the erosion that often results from land alteration. It is the policy of the managers to require all proposed construction projects affecting the waters of the district to provide adequately for erosion protection and sediment control and for such � � plans to be submitted for district review. The managers intend to take no action hereunder which is inconsistent with the Ordinances , Regulations or Guidelines of the Lake Minnetonka Conservation District. The municipalities within the district will be the vehicle for the submission of development plans to the district. " � � The .Johnson proposal includes work requiring review of all of the -above nine areas of policy concerns and regulations established by the MCWD. 3. The Minnesota Department of Natural Resources regulates use of all public waters in the State and use, development or alteration of all shoreland areas including all defined`:.flood hazard areas . The DNR rules � and regulations. are applicable to the public waters of Stubbs Bay, Lake Minnetonka, to all designated wetlands and flood hazard areas in the � � Stubbs Bay Study Area and to all lands in the Study Area within 1000 ft. of the shore of Stubbs Bay, Applicable DNR rules and regulations � include the following: � , � � � • Resolution No. /p9� Page 37 � � a . ) Public [aaters Permits 6MCAR: 1. 5020 "The proposed development must also be consistent with the goals and objectives of applicable federal; state, and local environmental quality programs and policies including but not limited to shoreland management, flood plain management, water surface use management, boat and . water safety, wild and scenic rivers management, water quality management, recreational or wilderness management, critical areas management, s�ientific and natural areas managem�nt, and protected vegetative species manage�nent. " 1. 5021 '�Filling into ]?ublic Waters including permitted • ' . "protection of shoreline from continued erosion by placement of rip rap materials: " "Placement (of fill) shall not be permitted . . . . . . . . . . . to create upland areas for development or � subdivision. " . � . - . 1. 5022 Excavation of Public Waters : "It is the policy iof the Department to discourage the excavation of ma terials from the beds of public waters in order to preserve the natural ,character of public waters and their shorelands , � and maintain suitable acquatic habitat for fish and wildlife. " , Excavation is not permitted: " 1. Where it is intended to gain access to navigable water depths when such access can be reasonably atta ined by utilizing a `temporary or pernnanent dock. � 2. Where inland excavation is intended solely to extend , riparian rights to nonriparian lands, or to promote the subdivision and development of nonriparian lands . . ',t� 3. Where the proposed excavation will be detrimental to significant fish and wildlife habitat, or protected vegetation. " � . . . Resolution No. /D�9y � � .''• Page 38 1. 5023 Structures in Public Waters : "It is the policy of the Department to discourage the waterward occupation � of the becls of public waters by offshore navigational facilities , retaining walls , and other structures in order to preserve the natural character of public waters and their shorelands , and provide a balance between the protection and utilization of public waters ; and to encourage the removal of existing waterway obstructions which do not serve the public interest from the beds of public waters at the earliest practicable date. The placement of ' structures in public waters shall not be permitted where . the structure: � • � 1. Is intended to gain access to navigable water depths where such access can be reasonably attained . by al�ernative means . 2. Will obstruct navigation and/or create a water . safety hazard. 1, 3. Will be detrimental to significant fish and wildlife habitat, or protected vegetation. Construction is prohibited in posted fish spawning areas . " Permanent docks ". . . . . . . shall extend lakeward only to a navigable depth (generally considered to be no greater than four (4) feet) . " � b. ) Standards and Criteria for the Management of Municipal Shoreland 'Areas of Minnesota NR82: - NR83 Land Use �ontrol Provisions : a . ) Land Use Designa�tion: �:"The development of shorelands of public waters shall be coi�trolled by means of land use zoning districts whi�h are designated to be compatible with the classes of public waters set forth in NR82 (f) . Land use zoning districts shall be established to provide for: 1. The management of areas unsuitable for development ' due to wet soils , steep- slopes , flooding, inadequate drainage, severe erosion potential, or any other feature likely to be harmful to the health, safety or welfare of � � the residents of the community. Resolution No. /O�'9 ' � Page 39 � , 2. The reservation of areas suitable for residential development from encroachment by commercial and industrial uses. � . 3. The centralization of service facilities for residential areas and enhancement of economic growth for those areas suitable for limited commercial _ development. � 4. The management of areas where use may be directed toward commercial or industrial uses , rather than strictly residential uses, which by their nature require location in shoreland areas ." � b. ). �riteria for Land Use Zoning District Designation: "The land use zoning districts established by municipalities shall be based on consideration of: preservation of natural areas ; present ownership and development .of shoreland areas ; shoreland soil types and their engineering capabilities ; � topographic characteristics ; vegetative cover; municipal socioeconomic development needs and plans as they involve water and related land resources; the land requirements of industry which, but its nature, requires �location in shoreland areas ; and the necessity to preserve and restore certain areas having significant historical or ecological value." � c. ) Zoning Provisions : "In order to reduce the effects of over-crowding, to prevent pollution of waters of the State, to prav3de ample space on lots for sanitary facilities, to minimize flood damages, to maintain property values , and to � - maintain natural characteristics of shorelands and adjacent water areas, municipal shoreland ordinances shall control . lot sizes, placement of structures on lots , and alterations of �shorelarid areas . " '-t S l. Omitted � 2. "Placement of Structures on Lots : The placement of � structures on lots� shall be controlled by the municipal � shoreland ordinance in accordance with the class of public � �waters, high water elevation, and location of roads and � � highways. " . . . Resolution No. /D 9-I�' � �Page 40 aa) "The following minimum setbacks for each . • � ublic waters shall apply to all class of p �� structures except those specified as exceptions in I�R83:�� . (iii� '�For General Development Waters : at least 75 feet f•rom the ordinary high water mark for lots not sen7ed by public sewer and at least 50 feet irom the ordinary high water mark for lots served by public sewer. " iv� "Furthermore, no structure shall b�definedd in the floodway of a river or stream as in Minnesota Statutes 1974, Section 104.02. " bb) "High �ti'ater Elevations - In addition to the municipal setback requirements Shall$control�placement of shoreland ordinances structures in relatioiaced aghanaelevationtion. � Structures shall b e p consistent with any applicable local flood plain management ordinances . " cc) "Proximity to Roads and Highways - No structure shall be placed nearere�aln s�tateetorroo�ty trgnk of-way line of any fed , highway; or 20 feet fre� to� oth rs°n taclassifiedany� ' town road, public stre , dd) "All structures , except non-residential agri- cultural structures , shall not aTeead rovedeaslpart height, unless such structures PP of a planned unit ��development pursuant to the procedures set for�h in NR83.. � eel"The total area of all lePcent of theftotal�n � a lot shall not exceed 30 p , . lot area ." ff) "Exceptions : . (ii) Location of piers and docks shall be � controlled by applicable state and Iocal , regula.tions . " Resolution No . /O�9 Page 41 � 3. Shoreline 'Alterations : aa)"Na tural vegetation in shoreland areas shall be preserved insofar as practical and r�asonable in order to retard surface runoff and soil erosion, . and to utilize excess nutrients . The removal of natural vegetation shall be controlled by the municipal shoreland ordinance. (ii) Natural vegetation shall be restored insofar as feasible after any construction proj ect. �� . bb) "Grading and filling in shoreland areas or any ' other substantial al�eration of the natural topography shall be controlled by the municipal shoreland ordinance. " cc) "Alteration of Beds and Public Waters : � . (i) Any work which will change or diminish the course, current, or cross section of a public water shall be approved by the �ommissioner before the work is begun. This includes � construction of channels and ditches , lagooning, � dredging of lakes or stream bottom for removal . of muck, silt or weeds , and filling in the lake or stream bed. Approval shall be construed to, mean the issuance by the �ommissioner of a permit � . , . under the procedures of Minnesota Statutes 1974, Section 105.42 and other related statutes . (ii) Excavation on shorelands where the intended purpose is connection to a public water, such as boat slips, canals, lagoons, and harbors , shall be controlled by the municipal shoreland ordinance. Permission for such excavation may be given only after the �ommission er has approved the proposed connection to public waters . Approval shall be . given only if the proposed work is consistent with � applicable state regulations for work in beds of public waters . " . � . . Resolution No./D99 � Page 42 � 4. "Placement of Roads and Parking Areas - The placemen�t of roads and parking areas shall be controlled in order to retard the runoff of surface waters and excess nutrients . `� • The placement of roads and parking ar�as shall be controlled � by the municipal shoreland ordinances in accordance with the following criteria : aa) No impervious surface shall be placed within 50 feet of the ordinary high water mark. � bb) j�There feasible and practical, all roads and . parking areas shall meet the setback requirements � established for structures in NR83. ' cc) Natural vegetation or other natural materials � . shall be used in order to screen parking areas when viewed irom the water. " - , d) Sanitary Provisions : "In order to insure safe and healthful � conditioris, to prevent pollution and contamination of surface and ground waters , and to guide development compatible with . the natural characteristics of shorelands and related water resources, municipal shoreland ordinances shall control • individual water supply and waste disposal systems in respect to location, construction, repair, use, and maintenance; and shall control commercial, agricultural, industrial and - � municipal waste disposal, and solid waste disposal sites�. " 1. � Water � Supply: .. � bb) "Private wells shall be placed in areas not ' subject to flooding and upslope from any source of contamination..: Wells already existing in areas subject to floodin� shall be flood proofed in � � accordance with accepted engineering standards . " � � � 2. Sewage and �'aste Disposal: "Any premises used for human occupancy shall be provided with an adequate � method of sewage disposal to be maintained in accordance • with acceptable practices . " bb) "All private sewage and other sanitary waste . � ' disposal systems shall conform to applicable � standards , criteria, rules and regulations of • the Minnesota Department of Health, the Pollution � :,ontrol Agency, and any applicable local government regulations in �erms of size, construction, us e, � � and maintenance. " �l�on No. /�99 . � 4 cc) "Location and installation of a septic tank � �and soil absorption system shall b e such that, . w ith reasonable maintenance, it will function . in a sanitary manne�hendu iitynof anyadomestic nuisance, endanger Q , water supply, or pollute or contaminate any wa ters of the State. " ee) "Soil absorption systems shall not be allowed in the following areas for disposal of domestic se��age: . � � � (i) Low, swampy areas or areas subject to � recurrent flooding; . Areas where the hi hest known ground water (ii) g table, bedrock ore�Pof thesbottomCOfdthe�system. " are within four f • ff "r�unicipal shoreland ordinances may require or allow alternative methods of sewage disposal such as holding tanks , privies , electric or gas incinerators , biological and/or tertiary �'`'asrovided treatment plants or land disposal systems p such facilities meet the standaadPollutionlaontrols and regulations of the Minnesot � Agency and the Minnesota Department of Health. " e) Subdivision Provisions : � � 1; Land� Suitability: "No land shall be subdivided . which is held unsuitable by a� muinadequate drainage, proposed use because of flo 8� soil and rock fQrmations witho�entialllunfavorable�r developir►ent, severe erosion p 1 or sewage disposal topography, inadequate water supp y capabilities, or any other featueeoflfuture�resi en Sul . to the health,. safety, or welfar „ .. . ,. . . � of the proposed subdivision or of the community. � ' , Resolution No. ��99 � Page 44 � NR 84 General Administration a . ) Aciministration and Enforcement: "Municipalities shall provide for the administration and enforcement of the � Municipal Shoreland Ordinance adopted pursuant to Minnesota Statutes 1974, Section 462 . 362. " � 1. Permit System: "In order to facilitate orderly and efficient administration and enforcement of municipal shoreland ordinances , municipalities shall establish permit procedures for building construction, installation of sewer and water facilities , and grading and filling in shoreline areas." 2,' Variances : "Variances shall only be granted when � there are particular hardships which make strict enforcement of official controls impractical. They . shall not circumvent the general purposes and intent • of the official controls . No variance may be granted that would allow any use that is prohibited in the zoning district in which the subject property is located. Conditions may be imposed in the granting of variances to insure compliance and to protect adjacent properties and the public interest. " - . 3. Nonconforming Uses : "Under authority of Minnesota � Statutes 1974, .Section 462, municipalities may adopt provisions to regulate, control and reduce the number or extent of and gradually eliminate nonconforming and substandard uses. Municipalities shall provide for the � � elimination of sanitary facilities inconsistent with NR83 over a period of .,time not to exceed 5 years from the date of enactment of the municipal ordinance. " t, 4. The Hennepin County Department of Trans�ortation has administrative authority, including rules and regulations which control access from , private property onto �oun'ty controlled highways including County Road 84 abutting the north and east sides of the Marina property. Responsibilities include maintenance of traffic flow, a dequate design for safe traffic manuvering, drainage control and proper roadway maintenance. Permits . are required for all curb cuts (access points) . � Resolution No. /D 99 ' : Page 45 Regulations for such� access include the following: a) "Applications for comr�ercial a�d industrial driveways or driveways servicing parking lots or garages with five or more vehicular parking spaces must meet the require:nents of the Rules and Regulations Establishing Design Specifications for Driveways along the Hightaay Syste�s of Hennepin County, Minnesota . " Such regulations utilize national traffic safety guidelines for the review of highw�ay speed, sight lines , � expected traffic flow, etc. to strictly control� the location • and use of all curb cuts. � b� "Approval of an access permit does not deny the �ounty Engineer the future right to revise, relocate or close any . entrance to expedite the movements of vehicular or pedestrian . , � traffic. The �ounty retains the right to close said entrancefs) at its discretion, based upon the necessity for traffic r,egulation and control. " • c) "Existing driveways are not au�omatically perpetuated. In the event of a change in land use or a major change in the traffic pattern of the existing facility, new driveway applications may be required by the �ounty. " - d) David Zetterstrom, Assistant Engineering Technician in the Traffic Engineering Department reviewed the Johnson proposal . according to standard engineering criteria. His recommendation was to relocate' the 'entrance into the property onto East Lake Street if possible, or if the Citp required� access to County Road 84, to relocate the entrance 150 feet east of the existing location. See Exhibit BB. 5. The United States Department of Housing and Urban Development, Federal Insurance Administration has regulating authority over all t land use within recognized flood hazard areas by means of Federal, State and Local legislation. a� Federal authority stems from the Flood Insurance Act of 1968 • and the Flood Disaster Protection Act of 1973. � . � . ' • Resolution No. /d 9 -�1 ' . Page 46 b) Minnesota 1969 Session Laws , Chapter 104, and 1973 Session . Laws , Chapter 351, Section 7 and subsequent findings by the Commissioner of Natural Resources and the City of Orono . identified flood hazard areas within the City, caused the City to participate in the National Flood Insurance Program, and thereby required the �ity to adopt and enforce a flood plain and flood hazard ordinance in a form meeting the criteria and approval of the DNR and HUD. c) The City of Orono adopted Resolutions 534 and 535 on March 11, 1974 applying for inc�usion in the Flood Insurance Program and adopting land use control measures in flood plain areas . d) Extensive engineering studies and analysis of flood hazards and flood prone areas within Orono were thereafter undertaken ' by various engineering. firms under contract to HUD. The final engineering studies were completed in 1978 and published by � HUD effective October 17 , 1978. Exerpts of the engineering � data are included as Exhibits F & I to this Resolution �see Item B-3, page 17) : ' " . e) The City of Orono adopted Ordinance No. 213 on October 26, 1978, which ordinance has been approved by DNR and HUD as meeting their established criteria for flood plain and flood hazard management and regulation. Ordinance No. 213 references the HUD studies and studies by the Hennepin Soil and Water Conservation District � to identify floo'd �hazard areas . Ordinance No. 213 establishes _ (and continues) reasonable regulations, including regulations � required by DNR and HUD, to prevent adverse land use or development in flood hazard areas and to control reasonable land use in those area s. . • . _� � . 6. The �ity of Orono, as a municipal corporation acting under statutory authority from the State of Minnesota; has adopted various ordinances which locally regulate use and development of the Marina property including the following: � �a) The Orono Municipal Code �Codified Ordinances adopted up to January 1, 1968) and amendments including: • 1. ::hapter 25 : Public and Private Sewers 2, Chapter 26: Numbering of Houses and Buildings R.esolution No. �09� � Page 47 3. �hapter 27 : Signs and Billboards � 4. �hapters 30 - 39 : "The Zoning �ode of the City of Orono" including the purposes , definitions and general provisions , the sections dealing with "uses", and accessory buildings , " the sections identifying various "use districts" including � the B-2 Lakeshore Business District, the performance standards for environmental conditions and the special provisions for signs and parking require�nents . S. •�hapters 70 - 75 : relating to "Docks and Harbors" including Harbor limits , Lake and Harbor restrictions , - �ommercial Docks and the location of docks and buoys . , 6. �hapter 82: Public Nuisances . b) Individual Ordinances not codiiied as above including: 1. Ordinance 198 regarding the height of structures . 2. Ordinance 205 regarding violation fines 3. Ordinance 210 regarding on-site sewage treatment � 4. Ordinance � 213 regarding flood plain and wetlands management 5. Ordinance 215 �amending the current fee schedule 6. Ordinance 216 adopting the 1978 State Building Lode including plumbing, heating and electrical codes 7 . Ordinance 218 amending Ordinance 210 8. Ordinance 219 establish ing a moratorium on � development in the Stubbs Bay Area � 9 . Ordinance=,221 regarding private wells . c) In addition to the Ordinances listed above, the City Council has from time to time adopted various Resolutions setting forth . in detail the Council ' s intentions and conditions regarding matters involving the Marina, including the following: � 1. � Resolution No. 177 regarding dock licenses issued after 1967. � 2. Resolution No. 575 granting a �onditional Use Permit for soup and sandwich sale. 3. Resolution No. 594 restricting use of the public access � on Stubbs Bay. . 4. Resolution No. 604 entering into an operational agreement • with Mc�leary and granting a marina license for 1975 . Fesolution No. /C 5 � Page 48 . . � . 5. Resolution No. 772 recognizing a state of emergency � in the provision of law enforcement services on Lake Minnetonka and declaring a moratorium on the expansion � of lake u'se facilities for the duration. 6. Resolution No. 816 issuing a 1977 dock license. • 7. Resolution No. 929 denying a rezoning application by . ' Mc:;leary. 8. Resolution No. 938 refusing to grant increased boat density to any commercial unit in the �ity on Lake Minnetonka . 9 . Resolution No. 943 declining to renew building permit No. 3696. � ' 10. Resolution No. 971 issuing a 1978 dock license. 11. Resolution No. 983 adopting on-site sewage treatment . � desi gn standards . � • 12. Resolution No. 1005 regarding permitted development . on. the Marina property. �. OUTSIDE �ONSULTANTS � l. Harza Report, January, 1971: A program for preserving the quality of Lake Minnetonka prepared for the P�A by �the University of Minnesota Limnological Research Center, Eugene Hickok and Associates, Barr Engineering and Harza Engineering �ompany. The report found that Lake Minnetonka was being degraded (polluted) by point service pollution coming principally from on-site sewage disposal systems, and by non-point sources entering the Lake in �_ - direct storm water runoff. . The conclusions and recommendations of the Harza Report dealt with the two pollution sources indeperidently: _ � � � , a) The Report recommended elimination of on-site sewage treatment �disposal) systems, collection of all waste water (sewage) by municipal sewer systems and diversion . of the waste water out of the watershed to the Blue Lake � � waste water treatment plant. Orono ' s 73-1 sewer project � • ' was instigated partially as a response to this recoirunendation. � . • � . . , Resolution No. /D99 . . Page 49 � ' b) The Report concluded that: "Storm water, especially " that portion which runs off from urban lands , is expected • to beco�ne an ever more important source of phosphorus in the future. The data collected for this study indicate that some mechanism, probably deposition and utilization in �rarshes , is reducing the phosphorus carried in streams tributary to the lake below levels anticipated from a review of the literature. " "The construction of storm sewers or paved channels would allow much of the stonn water to by-pass marshes, and curtail this benefit presently derived from them. By anticipating problems of localized flooding, development can be restrained in those areas , and storm water can be allowed to meander through" the marshes. " "Marshes provide a diversity in the kinds of open space available within the region. Perhaps more important, they provide a habitat which is uniquely suited for certain • birds and mammals . They can b e utilized to provide stora ge of storm runoff.with minimal disruption to their function as a habitat for wildlife and their apparent ability to reduce the phosphorus input to the lake. " "Marshes and small Iakes in the watershed aggregate nearly as much area as the main body of Lake Minnetonka. Therefore, their potential � for supplying water to the subsurface formati,ons is appreciable. " - " "In order to continue to protect the lake by removing phosphorus , to preserve the unique open space habitat, and to maintain the potential for ground water recharge, preservation of the marshes is desirable. This can be fostered by minimizing the construction of storm sewers and drainage culverts, and by minimizing the deepening and widening of drainage channels . " , � . � • � • , � . / Resolution No. /D 5� . Page 50 � ' c) The Report then recom*nended: ". . that the present policy - of preserving lakes and marshes from filling be continued. �, It is further recommended that the future construction of . storm sewers be minimized to those required to alleviate local problems . Storm runoff from the watershed should � be encouraged to flow over marshes , not through them in conduits or around them. " "An attempt should be made to locate those areas adjacent to marshes which may be flooded intermittantly because of increased runoff caused by future developments . These areas should be resei-ved from further development just `as • though they were a portion of the adjacent marsh. " 2. Preliminary Engineering Report, Sanitary Sewers in the Stubbs . � Bay Area, November, 1975, by then �ity Engineer, Mc�ombs-Knutson Associates. Ground water sampling was done in 1974 which ".•. . . showed high • chloride and surfactant concentrations that are indictive of contamination. The samples from the unnamed tributary to Stubbs Bay showed high Fecal �oliform counts , which are indictive of pollution from individual sewage disposal systems (drainfield overflow) . " The report studied the feasibility of sewering the Tonka, �restview and East Lake Street areas with a collection system. 'Itao alternative disposal mea'ns were investigated. An on-site drainfield near Bayside Road �and Leaf Street or a connection to .a ,planr�ed iriterceptor sewer farther away. "The recommendation of the" 1974 and 1975 report(s) was that sanitary sewer facilities should be installed to prevent the continued contamination of the ground water and Lake Minnetonka'' from point source pollution. � ` `� � 3. Dr. John Woods , Director of the University of Minnesota Gray Freshwater Biological Institute evaluated the Johnson application � for development of the Marina property. His response is attached as Exhibit CC. � Dr. Wood' s recommendation based upon environmental impact on Stubbs Bay was that "Since Stubbs Bay is small and very shal,low, it is � clear that a multiple dock for large power boats would make the situation �eutrophic condition of the bay) worse in several respects . " Fesolution No. �0 99 � - � � Page 51 4. George Patchin Jr. , MAI, ASA, President of Patchin Appraisals , Inc. , at the request of the City, appraised the Marina property � for the purpose of estimating its ' fair market value under current ' zoning regulations and under variations of the current regulations , effective February 1, 1979. a) The highest and best use value was estimated at $166, 000. 00 assuming current B-2 zoning, 66 allowable slips and provision of a small restroom/shelter building, including winter storage and launching fee incom� as per the Johnson proposal. b) The estimated value would decrease to $124, 000 (decrease • � of $42,000) if the slips were reduced from 66 to 45 with � the other conditions remaining the saine as (,a) above. � c) The estimated value would decrease to $104,000 (decrease of $62, 000) if the slips were reduced from 66 to 30 or fewer with the other conditions remaining the same as (a) above. � d) The estimated value would also be $104, 000 if the property were rezoned and restricted for residential development only with 'no commercial dockage or facilities permitted. e) The estimated value would increase from $104, 000 to $152, 000 ($14, 000 below highest and best use) if the property were rezoned to residential but if the 66 slips and commercial uses in (a) above were authorized to continue as a legal non-conforming use. The estimated value would remain at $104,000 if• 30 or fewer slips were permitted as a .non-conforming use. 5 . Gunnar Isb erg an d the firm of Isberg, Riesenberg, Chelseth & Associates, Inc, have been retained by the City as planning consultant for the updating and redrafting of the �ity` s �omprehensive Plan. As a part of �`this review, Isberg has been � requested to review� in detail certain Study Areas of the City having particular planning concerns or problems , including the Stubbs Bay Study Area, . . � � , - Resolution No. /G�9 ,- - ' Page 52 � � � Isberg studied the entire Stubbs Bay Area and then prepared a specific report on "Analysis of the Stubbs Eay Tjarina �Johnson) Proposal". From the planning aspect Isberg identified four alternative uses available for the Niarina property: � a) Leave site zoned for B-2 Lakeshore Business, strictly apply the existing performance standards to the various Marina development 'proposals , and� issue permits for - continued commercial marina use. b) �reate an additional "Neighborhood" Lakeshore Business District and rezone the Marina property to this District. � This would recognize commercial marina uses but would be . designed to cater to neighborhood marina needs (fueling, � � launching, etc. ) rather than an emphasis on slip renta 1. . This district would establish strict performance standards to protect abutting residential property owners better than � the B-2 standards . c) Rezone the site for LR-lA One Family Lakeshore Residential � development consistent with all surrounding properties . This would correct a "mistake" of the 1974 plan in designating a commercial zone outside of the urban area. d) Acquire the site for a park either as a municipally operated marina or as some other forxi ot lakeshore recreational site. This alternative would not necessarily decrease, and could increase, traffic and other activity - on the site. - . , , Isberg went on to choose among the above alternatives and to make a firm reco�mnendation to the Council, as follows : Recommendation - 'I'he following recommendation is based upon a technical planning perspec�ive and is based upon the s previous analysis which deals with future planning and development of the City of Orono. Every effort �has been made to consider alternative uses for the site which could be in conformance with the existing and proposed planning and development policies for the �ity, while at the same • time be compatible with the Stubbs Bay Area and neighborhood. . Because of the location of the site and the characteristics - � of the area and the site, the number of practical alternatives are very limited. . . Resolution No, /oy� Page 53 � � ' ' . In addition to recommended use of the pro ert alternative has also been included to roP• y' an " flexibility to the Cit P ide more following is the recommendationnofathecconsu• �e . ltant: A• Rezone the Site for LR-lA Lakeshore Residential D' Based upon �he rrevious analysis related to future lalstrict - and development of the Cit p nning the site be rezoned gor a y °f Orono, it is recommended that single-family dwelling for several reasons. For one, the land uses in the area consist of sin family dwellings and lake cottages and the g1e- proposed development policies for the „lt �Xisting and � area as a rural area with low-densit ^ y is to retain this � � in the foreseeable future. Y residential development development would be in confor�nuanceltoltheaexistresidential ' proposed development policies of the �it ing and residential land use on this site would y� Secondly, a impact on the need for urban services, trafficaproblems • and potential pollution problems in this area . Third a residential land use would be co�npatible with the nei hborh and general area and could improve the aesthetics of ghe °od and `the Stubbs Bay shoreline with the removal of the exi area slips , sting , Admittedly, the site is not ideal for residential de . due to the fact that the site is located in the floodelopment and portions of the site are located in a sheet flow area . Thus, the site would have to be modified Plain proofing the building. In addition, a holding rtankf�,,00d- . � have to be used for the sanitar ould pollution problems . However, weighing alltthetfactorSize � considered in this analysis a � be the recommended use of the Single-family residence would q property. � . Resolution No. /099 • PaQe 54 � � B. Alternative - Create a n'ew I�eighborhood Lakeshore - Business District Of the various alternatives considered, � � ' an alternative recommendation to the rezoning of the property � for residential use would be to create a new Neighborhood • � . Lakeshore Business District, amend the existing zoning ordinance and rezone the property for this district. It . � should also be made clear that this new zoning district would also be applicable to other potential areas of the city. This district would be specifically designed to minimize the impact on the neighborhood, and yet allow . limited lakeshore commercial development including marinas which specifically meet the needs of the neighborhood or ' - � � � ge�neral area of" the City. Standards for the number of ' slips and the general size of the marina operation •would be' developed in relation to several factors including the � size of the parcel, the length of the shoreline, and the character of the general neighborhood. In addition, there could be a requirement that a certain percentage of the � stips be �designated for use 'by the property owners in the . � area . This could conceivably reduce the scope of the • current proposal to one-third or one-fourth of its present proposed size. In addition, strict standards could be incorporated in relation to signing, hours of operation, - maintenance of the area, etc. � Regardless of the disposition of the current proposal, this consultant would recommend that the present B-2 Lakeshore � , Business District be amended to regulate the number of slips � -� in a marina and that a new Neighborhood Lakeshore Business • District be created to deal with similar problems elsewhere . � in the City. The reason for this is that there is likely' to be increased demands for marinas in the iuture and stricter standards are necessary . to minimize the a dverse effects of marinas in residential neighborhood�,. �. t � . Resolution No. /Dy9 . Page 55 • 6. The legal opinions of Bruce D, Malkerson, Attorney for the �ity and member of the firm of Popham, Haik, Schnobrich, Kaufman � & Doty, Ltd, are based upon general legal. principles and the current status of legislation and case law. Legal opinions are . not policy re�o�rnnendations . Legal opinions are generally applicable to all zoning and l.and use matters and are not specific opinions . made to the �ouncit or staff in relation to the Stubbs Bay matter. General legal interpretations and requirements for the Council to consider in all land use matters include the following: a) ?oning code performance standards should be designed to implement the goals of the Comprehensive Plan of the City. b) tiomprehensive planning and zoning are for the purpose of promoting the most general public benefit and may not necessarily protect or promote the private benefit of every individual property owner. � • c) When a City zones or rezones property it acts in a legislative capacity under its delegated police powers . As a legislative act, a �rezoning classification must be • upheld by the �ourts unless the landowner proves that the classification is unsupported by any rational basis related to promoting the public health, safety, morals or general welfare, or the rezoning amounts to a -"taking'' without compensation. - dl Even where the reasonableness of a rezoning is debatable, or where there are conflicting opinions as to the desirability _ of the restrictions it imposes, it is not the function of the �ourt to interfere with the legislative decision. The record of the proceedings should show that all sides of an issue have been �considered and that the decision is supported tio some extent by facts or opinions in the record, e) To establish an unconstitutional "taking" ot the property, the landowner must demonstrate that he has been deprived through governmental action or inaction of all reasonable uses of the land. Mere diminution in value in market value is not such a demonstration, when a reasonable •use of land • is permitted after the rezoning. Resolution no . /�99 Page 56 £ � � f) Rezoning of property, which is otherwise valid, does not give rise to an action for damages because the land in question may be valuable for some other purpose. F. �ITY STAFF � l. The comments and recommendation of John Gerhardson, Public �1�orks �oordinator, stated in a memo dated February 19, 1979 , are as follows : � "After inspection of the Stubbs Bay Marina Area, it is • ' . my opinion that if a Marina is going to be at that site � there are two concerns that I have: a> Drainage - On the north side of that property is a � drainage ditch that collects almost 100% of the runoff from Tonka Avenue and par�t of the north side of Bayside Road (County Road 84) . This must be maintained. There � will also have to be drainage control on the south side of the property to prevent any erosion to East Lake Street. � b) Access - Depending on the amount of traffic generated I am sure there would have to be a wider approach and possibly moved further east. " 2. The comments and recommendation of Melvin Kilbo, Chief of . Police and Public Safety Director, stated in a memo dated February 21, 1979, are as follows : . "In 1978 this (Stubbs Bay Area) reporting zone is next to " the lowest in total calls . . ' � In reviewing police calls to =.�the area since 1975, I note there are numerous calls that are involved with the marina ' such as larceny, malicious mischief, and public accidents . � Any marina use will require general inspectional patrol service during late evening and early morning hours . � � � � ' � Resolution 1�'0. /D91 Page 57 - � � This area is out of the mainstream of the busier areas of general patrol and may suffer somewhat as a result in frequency of patrol. The response time for both fire and �. police may be longer because of it 's geographic location. I h�ve no opinion as to �anat form of d�velopment should prevail. I will only state that other areas of concern for land usag� are probably more relevant to this area �han possible public saiety problems . " 3 . The com�nents and recommendations of Michael Gaffron, Hydrologist and Environmental Planner, stated in a memo dated February 2, 1979 (Exhibit DD) are as follows : � � a) The Stubbs Bay Area "The Stubbs Bay Area encompasses 82 houses, cottages , or •other habitable buildings . Of these 82, approximately 40 were inspected by me during 1978. Two systems were • , found to be unquestionably non-conforming (outhouses) . The great majority of the balance were substandard either in Iocation near wells or seasonal water table, or in size of drainfield. Essentially all the East Lake Street houses are non-coniorming . according to the Statewide Shoreland Management requirements . A 1974 study by McCombs-Knutson Associates analyzed ground arid surface water samples from various locations in the Tonka Av-enue-�restview Avenue-East Lake Street area . Shallow � groundwater samples showed high concentrations of chloride and su?-factants , indicating contamination. Surface water samples from the unnamed tributary to Stubbs Bay had a high fecal coliform count, indicating pollution from individual on-site systems . . � �:t 4 . Recent inspection of the northeast Stubbs Bay Area reveals minimal visible sewage effluent discharging to the surface. However, complaints or seasonal problems of odors or discharges have been recorded. • ' Resolution No. /099 : Page 58 �onclusion - Suspected and known .system failures have occurred in the northeast Stubbs Bay Area, causing possible ground and surface water contamination. Possible reasons for this failure are: 1) tight clay soils which restrict water movement creating high water tables and hence causing surface seepage and/or groundwater contamination; or 2) systems undersized for current usage, or 3) systems � located in high water table/flood plain areas , " b) The ASarina Property "The observed water table at the marina site was 18" in � summer of 1978. The property contains three soil types . all classified as severely restrictive for drainfields . under Orono code, due to high 'water tables . • The City is under no obligation to approve any new drainfields on . these soils . � Approximately half of the marina property is below the 100-year flood level, as are about half of the East Lake � Street houses. In addition, septic systems are prohibited . in all designated sheet flow areas of shallow flooding in which the remainder of the property is contained. � PCA WPC-40 recommended standards prohibit drainfield _ installation in areas subject to flooding or in flood plains ' . delineated by local ordinances adopted in compliance with � � State Flood Plai.n Regulations (Minn. Reg. NR85-93) or where regiona,l flood, plain information is available. " The Marina property is not suitable for a standard drainfield system ". . : due to high water table and possible flooding." "The site is marginal for a�` mound system and determination o� �iepth to seasonal water t'able becomes a judgment decision. " A mound system ". . . . could be a source of groundwater • � contamination during flood periods . " � � Resolution No. /o �9 Pa ge 59 � � . "The site is suitable for a holding tank system. In either zones A or B, we would require a sealed system with check valves to prevent backflow or surface discharge of sewage if and when tariks were flooded. Anti-flotation stability of tanks would be of prime concern in either a holding �ank or mound situation. " cl Recomrrendations : "1. Marina Property - A holding tank svstem should be required for any new buildings . Orono Code would not allow a septic system, and due to flooding potential � and depth to ground water, a soil treatment system would . . have a high risk of ground or surface water contamination. ` 2. East Lake Street Properties - Although there is no � easy procedure to show that these systems are in fact � causing pollution of ground or surface water, the potential for pollution is very g�eat. I would suggest that these systems be abandoned and tanks be installed or modified to • � be used as holding tanks until such time that a collector sewer sys�em is extended to the area . 3. Tonka Avenue-�restview Avenue - Although many of the houses on these streets may have systems which are disposing of the effluent they receive, they may not be treating it. Possible courses of action would b e: � � a) ,�ontinue with present program of requiring visibly failing systems to be repaired with alternative systems - if necessary.� Lontinuously monitor ground water quality.� b� Install a collector system for off-site treatment and disposal. �� c) Require all systems to bes�replaced with alternative systems if documentation is shown that standard systems cannot be expected. to function adequately in existing soil types. " � . � . Resolution No. /�✓'S� - , � Page 60 � ' 4. The com,nents and recommendation of Alan Olson, Village Planner, Zoning Administrator and Building Official, stated in a memo dated . February 27, 1979 (Exhibit EE) are as fo1loT.as : � a) Recommendation "I re�ommend to the City �ouncil that the property commonly' � known as Stubbs Bay M�rina (legally described as Block 7 , Bayside Addition to� Lake Minnetonka and Lots 21 and 22, Auditor' s Subdivision No. 203) be zoned and restricted for use as One Family Lakeshore Residential Property, District LR-lA, consistent with .the zoning designation and actual - � use of all surrounding properties . - I support this reconu-nendation with my conclusion as a . . professional planner that this zoning .designation is : entirely consistent with the goals, intents and purposes of the City' s �omprehensive Plans and that any other designation is inconsistent with those goals, intents , ' and purposes . - • I further recommencl to the City �ouncil that the future development and use of the subject property be restricted and limited to those permitted and conditional uses specified as appropriate uses for the LR-lA zoning use district. � � I support this recommendation with my conclusion as a professional .planner that said pennitted uses are indeed appropr�ate for. this property given all neighborhood, topographic, geographic, ecological, historic and legal � restrictions imposed on the property by its very loca tion and intrinsic characteristics and that all other uses , including limited �commercial use as a marina, are infact inappropriate for the property and the neighborhood. " � :,• b) Suggested Course, of Action . "I reco�nend that after receipt of all facts and opinions , the �ity Council adopt a RESOLUTION OF INTENT regarding � future zoning, development and use of this property. This • resolution would be conceptual in nature, allowing staff . an opportunity to include all new information received at the � , public hearing�, to include exactly all findings of the Council and to ensure that the final resolution be eorrect in detail prior to passage at the next meeting. I have attached a suggested draft of such a resolution. � � • �Resolution No. /o5'y . Page 61 � . I recoimnend that the Council amend the 1974 Comprehensive Plan consistent with the findings of this moratorium area study. . I recom�end that the CouncBl2�La�:eshorenBusinesstDistrict the subject property zrom to LR-lA One Family Lakeshore Residential District. I reco�mend that the �ouncil thereafter deny the 1979 . Commercial Dock License Application ofaGeligationJforson and that thdevelocmenaeon the subject property. ' commercial P I recommend that the vouncil aesyin�cludingdonsland the property for coriu�nercial puipo storage and in-lake dock construction and that the Council institute condemnation proceduresas°the Council . existing unsafe dock structures finding, did in the 1978 Dock License Resolution No. 971, that such structures pose an i�nediate hazard to public health and safety. I recommend that the Council �and staff) continue study of the Stubbs Bay Moratorium Aresaln flooding�hazards�,ehousings of sewage treatment and dispo , deteriora.tion,, crowding ansucheconditionsf lltSuchPstudy is " expenditures to allevlate intended to be. completed prior to the wid�thehfindingst Moratorium expiring on July 31, 1979 , and conclusions of such studies to be incorporated in the ; current review of the Comprehensive Plan of the �ity. " � � �ouncil of the , AND, THEREFORE, BE IT RESOLVED, that the City s �ity of Qrono hereby makes the following �onclusions based upon the foregoing findings of fact: .i • . . � . . Resolution No. /p�9 • � Page 62 . I. THE PUBLIC INTEREST � • A. �OMPREHENSIVE PLANNING � l. �omprehensive Planning is important for Orono to assure that future growth and development is managed in the best interests of the general public. T'he approach is growth management, not growth limitation and not manageable development. The emphasis is on providing a rational plan for coordination of public services with private interests . 2. The Council confirms the findings and conclusions � of the 1974 Comprehensive Guide Plan regarding the . paramount objectives of al the preservation of the quality of Lake Minnetonka as a unique yet fragile • � ecologicat and recreational asset and b) the maintenance of tow-density rural land use policies as opposed to � the expansion of urban development. • 3 . Restrictive ordinances and regulations have been • developed and are a �ontinuing necessity to assure , that speciat interests do not abridge the goals of� environmentat protection. The preservation of woodlands and wetlands , lake quality and shoreline integrity are in the general public interest. Protection of these natural assets must be paramount to private development interests . Too often private interests disregard environmental concerns . 4. Low-density rural residential land use is a " legitimate "ultimate" land use and is not, in Orono, to be considered a holding pattern for future development. The Council confirms the„policy of retaining the existing t rural areas for low density rural residential development without urban services , and retaining the existing urbanized areas for medium density residential and ' neighborhood commercial development. The rural ar eas of Orono are to remain rural without threat of expanding urban development. . � . Resolution No. /d 99 Page 63 . � 5 . Premature or unnecessary expansion of urban services into the rural area becomes a costly burden on the landowners , thereby forcing increased development � pressure and a consequent loss of rural character. The extension of municipal sewer is a particularly intensive and costly service which will be done only to relieve documented health hazards in existing � pockets of development, and then only when such an extension is the most cost-effective alternative. � � � , B. ?OI��ING ORDINAN�ES � I:�: � - . � 1. The Stubbs Bay Area has been zoned for rural land use because municipal sanitary sewer and other urban . services are not currently available. 2. The 1950 decision zoning alI of the Stubbs Bay Area, including the Resort property, for single family residential land use was proper because of the then � existing lack of services and lack of any commercial use in the area . Even the Resort was then a form of residential land use. 3. The Resort operated from 1950 to 1968 as a non- conforn�►ing use in a residential zone, � • 4. Adherence to the amortization requirements of Ordinance No. 10 -should have caused the Resort �use to . have beeri terminated on or before March 10, 1967. 5. The first zoning authorization for any commercial use in the Stubbs Bay Area came in _ 1967 when the Resort property was rezoneci from residential to B-2 Lakeshore Commercial. The `permitted and conditional uses of thetB-2 District included the then existing uses of the property but excluded uses which have since beeri added by the operators . � . _ . Resolution No. /G �9 Page 64 � � 6. The Council could have retained the residential zoning classification of the Resort property in 1967 and still permitted continued operation as in the past under regulation as a conditional use permit per Section 32.480 of the 1967 Lode. 7. Leaving the Resort property zoned residential would have been consistent with the adjoining properties and with the lack. of urban services to the area . Zoning of the one property in a significantly different classification from all surrounding properties can be considered to have been "spot zoning", which by definition and implication acts to benefit one property owner at the expense of neighboring property owners and the public at large. � . 8. The legal description of the B-2 district adopted in 1967 erroneously included more property than actually , owned or used by the Resort and more property than � intended by the Council. Subsequent entries in the record show that neither the �ity nor the Resort/Ma rina operators intended or knew of the inclusion of Parcel 4 and Lot 25 �see Exhibit D-2) in the legal description until 1978. 9. The Council �erred in not returning the property � to a residential zoning classification in 1974 as was done . with other similarly situated cor�ercial properties . The� Council believed that extenuating circumstances then existing would serve to adequately control use of the � property, including studies to extend sewer into the � area, newly devised zoning and licensing requirements including operational agreements designed to control marina impact on neighbaring properties , and the fact that as of 1974, the marina use had not been significantly changed or expanded from�historic practices and was even homesteaded by Keiran through 1973: 10. The intent of the B-2 performance standards adopted � in 1974 was to reduce the impact of previously uncontrolled � commercial inarina expansion for the benefit of adj oining . residential properties and to assure protection of the Lake against environmental degradation. � Resolution No. /09� � Page 65 ' � 11. New information available since 1974, including the Federal Flood Insurance study, increased local, . state and federal knowledge concerning sewage treatment and disposal, increased knowledge of lake ecology and basic changes in the operational character of marinas , has become cause for new planning conclusions regarding commercial lakeshore activity independent of any City initiated action or policy. 12. In retrospect, the use impact of most marinas in Orono, including Stubbs Bay Marina , has been greatly increased since 1974, and is incomparable with the , lise existent in 1967 . The existing regulations have proven ineffective in controlling such growth. The existing policies have proven ineffective in providing incentive for private improvement. The ecology of the • � Lake, and the most general public benefit to be derived from commercial activities in the Lake, remain in jeopardy. � �, BUSINESS LI�ENSES 1. Coirnnercial dock licensing was initiated at a time when the major a�tivity was boat rental, not retail sales or slip rental. Resorts included cabins . Boats were resort owned. Boat use was primarily for fishing or day use. Partying, late hours ,and noisy motors were not as prevalent as today with the larger, powered . , , owner-operated craft. The licensing regulations were designed around the number of boats because the number : of boats available�for rent was directly proportional : to the number of patrons and therefore the impact on the neighborhood. � -� . . 2. Dock or slip rental has never been a permitted T nor a conditional use under the B-2 zoning district . regulations . �onsequently, licerises have been issued for a given number of "boats" on the property: In recent years, the terminology has changed to "slips" - � � in recognition that the boats were being kept in the water at all times . The presumption was and is that a commercial marina has boats available for p�.blic � rental and/or •some other public service available to the general� public thereby justifying encroachment into the public waters . Renting out a piece of public water for private boat storage �is not in the best interest of the general public. ' Resolution No. /05'� -• Page 66 3. Since 1967, and particularly in the mid 70 ' s, the operators have changed their businesses from boat rental to slip rental, have added showroom type sales of new and used boats, parts and � accessories , have provided gas docks and repair or service facilities , and have kept additional boats , on the property "for marina use". Yet the licenses remain geared to a certain number of "boats" (,slips�, � whi�h are now but a minor part of many marina businesses . 4. In 1975, as a prerequisite to licensing for that � year, each commercial marina (including Mc�leary for Stubbs Bay) entered into an Operational Agreement setting forth a four year plan for physical improvements to each property to offset the type of expansion impact noted above. None of the marinas have completed the requirements of those agreements. � 5 . Stubbs Bay Marina has not been in compliance with licensing requirements since 1973 when Mc�lea ry assumed ownership from Keiran. a) In 1973, McCleary operated the marina without a �ity license (Keiran wa,s licensed) . . b) In 1974, Mc�leary applied for a license for �" ��• 31 slips but erected new docks for 75 slips without �ity or LMCD approval. Mc�lear also began unauthorized use of residential Parcel 4. ' c) In 1974 or 1975, McCleary expanded the Tavern to an- unauthorized "cafe"�contrary to permitted uses in the B-2 zone, t . � , d) In 1975 and 1976, McCleary continued to use unauthorized slips on residential Parcel 4. e) Since the fire in 1976, there has been no services available on site, no sanitary facilities (except one "satellite" which does not meet licensing � requirements) , no property maintenance, no dock maintenance and no security or supervision by marina employees . - ' Resolution No. ��59 Page 67 . � f) The docks in place since McCleary' s 1974 revision have extended beyond the LMCD' s • authorized dock use area . These same docks � � have been declared hazardous by Mc�leary and � the �ity with the owner making no effort to ' correct or secure from use the hazardous portions . The docks do not meet State Fire �ode requirements for adequate spacing of watercraft. 6. As with the zoning regulations, licensing requirements, procedures and- enforcement have also , proven inadequate in controlling commercial activity for the protection of the public health, safety and welfare. � - ' II. STUBBS BAY STUDY AREA A. STUBBS BAY LAKE MINNETONKA � 1. Stubbs Bay is an environmentally sensitive part of Lake Minnetonka and is particularly susceptible � to damage from high-powered watercraft, including potential loss of navigable access to riparian properties . ' � 2. Stubbs Bay is" remote from the main lake, is _ residentially developed, and is least suitable for - , commercial development of any bay in Orono. . 3:. The amount of boating activity. on Stubbs Bay - increased dramatically (93%) between 1973 and 1978, the same years that the marina activity also intensified. � At the same time there was an insignificant increase �3%). in residential use'�on the Bay. . S 4. Maxwell Bay, which must also support all boat traffic between Stubbs Bay and the main lake, is also overused and incapable of �withstanding additional ' activity witt�out severe impact to the Lake and to the riparian property owners . � Resolution No. /099 Page 68 � � - B. NATURAL LAND FEATURES 1. The steep slopes and marshy flood plains of the Study Area are not suitable for any development, residential or commercial. Almost all land suitable for development has already been occupied by homes , most in the area of 100 to 1000 feet from the shore on the gently rolling slopes . 2. Flood hazard areas adjacent to Stubbs Bay include � the Marina property and all of the East Lake Street residential area . 3. On site sewage treatment is impossible in the flood hazard areas . Effluent may be "disposed of" • but it is not adequately treated before absorption • into the ground water table or leeching into the Lake itself. • �. HISTORIC DEVELOPMENT 1. The development of the Stubbs Bay Resort and residential area in 1915 occurred because of development speculation connected with the Luce Line Railroad, not � as an extension of existing development. Adverse land ' �and Lake) conditions hindered rather than fostered � %development a� this location. � � y , . 2. . The area would have remained a minor development of summer cabins had it not been for the housing crunch after World War II. � . 3. Had the railroad not been built (the railroad � itself has proven unecoriiomicl the Stubbs Bay Area would not have been developed and the Resort would • likely have never been constructed, particularly not at this location. � , � . Resolution No. 1099 ' Page 69 4. The loss of all other commercial activity and the lack of significant residential development proves the minimal desirability or need for development in the Stubbs Bay Area : - 5 . The only reason the Marina property continues to receive development pressure is because off-lake , consumer demand for slip rental has exceeded the capacity of other marinas located at more accessible, more navigable sites. D. TRANSPORTATION - 1. All roadway access to the Stubbs Bay Study Area is along winding residential streets not designed to accommodate comnercial traffic . 2. The Iack of public transportation to the Study • Area reduces accessibility to the general public. 3. Roads in the Study Area are deteriorating and will require increasing public expenditures to assure adequate maintenance. No provision. can be made for increasing capacity. E. PUBLIC UTILITIES - . , . . • 1. Provision of a municipal water supply in the Study Area is foreseeably economically impossible. The quality and purity of the ground water supply must be indefinitely protected to assure adequate private water supplies. ; .ti 2. Sewage and waste water generated by the existing � , development must be adequately treated to protect the public health and to preserve the quality and life of Lake Minnetonka. The existing on-site systems have proven lacking in treatment capability. The existing � ' systems are generally old, small and located on poor . soils . Some are obviously located in the water table or in the flood plain. Major revisions in s�ewage treatment are required in the Study Area . � Resolution No. �099 ' • Page 70 _ 3. Subject to completion of the ongoing sewer studies , • several options are available including extension of municipal sewer, creation of a community drainfield system, reconstruction of existing systems or holding tank installation. Some existing residences or • • seasonal cottages may have to be condemned and removed if no solution is possible. All options are expensive to the City and to the property owners . The policy of the City is to achieve the necessary sewage treatment at the least possible cost. Further development in the . area should be avoided unless adequate sewage treatment ' is assurable. � F. HOUSING. . 1. The majority of the existing housing stock in the ' Study Area is built on lots developed to urban density � in the rural area. Much of the housing is in the low • to moderate cost or investment range. . � 2. Solution of the utility (sewerage) problem will , likely be incentive to encourage longer term investment and increased housing rehabilitation activity. • The cost of such a solution may however tend to force-out - existing low income property owners who could not - afford the cost of such an improvement. • . 3. "Stabilization of the existing housing situation � as above will also likely be incentive to encourage new residential development on the remaining vacant properties in the Area . � G. GOVERNMENT SERVICES '.t• S ' 1. There is little� likelihood of increasing the .level of fire protection to the Study Area. Water supply will continue to require tanker transportation. �tesponse . time will continue to b e primarily affected by distance to the station and the low speed, curving nature of the � roads leading to the Area . • Resolution No. /0 99 �age 71 2. There is little likelihood of increasing the level of police protection to the area because of the primarily � residential needs of the Area and because of the geographic isolation of the Area , Limited manpower-hours � � � must be allocated to areas of greater needs . 3. Study area development options appear to have little or no impact on School District needs . 4. Recreational opportunities in the Area appear to be satisfied with the improvement of Bederwood Park . for neighborhood activities . The loss of boat rental � at the Marina may affect some neighborhood residents who lack direct lake access . 5. Other governmental services will continue to be � provided on a rural-residential scale. The increasing � . . availability. of housing rehabiiitation funds should • be of particular importance to the low and moderate . income property owners in the area , and may partially offset the cost of improving sewer treatment for those residents. H, DEVELOPMENT TRENDS 1. A major purpose of this Study is to develop policy � to foster improvement in the status of the Study Area properties . As discussed above, improving the utility � situation should stabilize the area thereby encouraging � . private development. Rehabilitation of existing housing � � and development �at rural densities of the existing vacant . properti'es to a level of such investment in other areas of the City will be entirely��ticonsistent with the goals of the Comprehensive Plan. 2. The existing dense developments along Tonka, �restview and West Lake Streets should have increasing - levels of housing rehabilitation, but little new � ' development. . ' � Resolution No, /D99 Page 72 ' � 3. The existing lakeshore and woodland properties along Bayside Road should experience infill development at rural densities . 4. The existing cottage development along East Lake Street has a less secure future. This area has ' major sewage treatment deficiencies and lies entirely within the flood plain. Extensive rehabilitation should be discouraged; although improvements for habitability are required. Extensive rehabilitation may prove economically unfeasible because of flood proofing requirements. � 5 . No neighborhood commercial development needs are forecast or expected in the Study Area. Commercial � �pressure for development of the Marina property is entirely non-local in origin. . III. THE STUBBS BAY MARINA PROPERTY � � • A. PROPERTY DESCRIPTION & OWNERSHIP (See Exhibit H) 1. From 1956 to 1973, Keiran owned and operated the Resort while living on the property. Only parcels 1-3 were involved. The docks licensed and inplace respected the angled property line between parcels � 3 & 4 (between Kieran and Fulkerson) . 2. ,Keiran .sold the Resort to McCleary in 1973 after • which Keiran' s house (cabin) was razed thereby removing � the last residential use of the property. 3. McCleary purchased the Fulkerson property (parcels 4 &5) in 1974 to expand the marina in front of parcel 4. � � 4. Parcel� 2 of the Resort property was homestea ded, 'assessed and taxed as residential property through 1973, and was mistakenly assessed as residential even 'through 1975 after the residential use had been . discontinued. � . . � � � , �;�. ' Resolution No. /D99 ' � Page 73 " S. Parcels 4 & 5 have continuously been assessed and taxed as residential property. � 6. Mc�leary' s 1978 sale of parcel 5 by contract for deed should have included parcel 4 which has � always been the residential lake access for parcel S . M�vleary never applied for and has never been granted a subdivision to separate ownership of parcel 4 and parcel 5 which are combined in one registered property abstract. Parcels 4 & 5 combined are less than the � minimum lot area required in the LR-lA zoning use district. Loss of parcel 4 would make the residence . , on parcel 5 even less conforming, contrary to the ' requirements of the Code. . 7. Parcels 1, 2, 3 & 4 have never been and are still . not under common ownership as McCleary owns parcel • 4 & S in fee while Kexran owns parcels 1-3 in fee. � B. NATURAL FEATURES � 1. The entire Marina property is within the HUD . . defined flood hazard area , with soil types and high ground water elevations effectively precluding any � form of on-site sewage treatment system. All sewage ' and waste water generated on the property must be disposed of off the property, either by means of a _ collector system or municipal sewer connection, or , . , . by means of truck hauling of wastes from on-site holding tanks. � � . " _ 2. All habitable structure construction on the Marina property must be on fill' with the minimum floor elevation . no less than one foot above ground level, or 932. 5 MSL, , whichever elevation is higher. � 3. The existing condition of the Marina property is such • .that most vegetation is uncontrolled weeds. Trees are willow, which are somewhat messy and short Iived, and elm tahich are prone to die from dutch elm disease. � � • � , � • Resolution No. /099 � Page 74 � 4. The Marina property is poorly drained, being : • ' relatively flat and not much above lake level. , Potholes exist which would need to be filled with any type of development. The county ditch running b etween parcels 3 & 4 needs to be maintained. � . 5. The lake bottom in front of the marina is particularly shallow and mucky, a condition arising from the historic land condition (a marshy flood plain) , � , previous dredging activities including the original � filling of the marsh, and the continued use of power . boats which keep the silt in solution. � � �. RESORT HISTORY . 1. Without the speculation involved with the railroad construction in 1915, the resort would never have been built on this site, � . 2, The "creation" of the resort property with dredge � spoils filling a swamp is evidence enough alon e to assure that no on-site sewage treatment system could .� . ever be effective, a 3. . The original resort use was quasi-residential in character. 4. �The keeping and licensing of a small number of � fishing boats on the property was consistent with the � � resort use, even though the property was resid�entially � zoned from 1950 to 1967 . 5. The property was resi�dentially zoned in 1956 zohen � ' Keiran acquired it. 6. As early as 1964, the issue of continuing commercial use of the property was aired and the Keirans were advised that issuance of fishing boat licenses "does not necessa�ily constitute approval of extended non-conforming use of residentially zoned property. " A co�nercial Mbuilding permit was also denied in 1964. Resolution No. /099 - �age 75 7 . Keiran ' s 1967 license application acknowledged � that the property was residentially zoned and that .� . � the resort was a non-conforming use. � �. 8. Keiran ' s lzcense application increased from 18 ' � boats in 1967 to 32 boats in 1968 after adoption of the new zoning ordinance establishing the B-2 Distri�t. The �.icense was issued for 31 boats �13 rental' boats and 18 rental slips) despite neighborhood protests on record. T'his is the first - . instance of changing the intent of the licensing �� procedure from licensing of 18 boats (as in the past) • to licensing of 18 "slips" plus additional "boats". � 9 . Keiran was licensed for 31 boats in 1973 but sold � to Mc�leary by contract for deed in April. The City license was never transferred to Mc�leary. The Resort was never substantially altered from 1956 through • 1973 while Keiran was the operator. 10. Mcvleary in 1973 applied for an LMCD license but with a different dock plan and for 60, not 31 slips . He incorrectly certified that "no changes are to be made in the dock use area . . .�. . during the 1973 season; that the scaled drawing or certificate submitted with last year ' s <1972) application will be applicable to the license applied for" despite the major changes from the" 3T slip Keiran licenses . 11. McCleary applied� for and received a 31 slip City license in 1974 with a dock plan identical to Keiran ' s : 1968 plan lthe docks were still in placel . Without prior approval, and contrary to the license, McCleary then proceeded to erectsan entirely different dock layout for 75 'slips, including slips encroaching in front of the newly purchased residential parcel 4. . 12. The City Council on July 23, 1974, ordered McCleary � -- to cease use of the "residential" property and to abide by City licensing standards. This record, occurring � during the final stages of the comprehensive planning and rezoning process, clearly shows the intention of keeping parcel 4 zoned residential, without apparent knowledge of the 1967' legal description. � Resolution No. /Og9 • � Page 76 � ' � , 13. Additionally,. in 1974 and 1975, McCleary attempted to expand the commercial use of the property by expansion of the existing tavern into a restaurant or "cafe", � " _ contrary to 1967 and 1974 use provisions of the zoning � . code. . . 14. Mc�leary' s 1975 license for 66 slips was an additional increase in permitted use of the property, based in part on incorrect sta-tements alleging such a 66 slip license in existence from the LMCD. 15. Mc�leary' s 1975 Operations Agreement with the City called for certain landscaping and maintenance standards which have never been completed. � . �. 16. Mc�leary' s 1976 license application requested additional boats 50% beyond the increase granted in 1975. A large marina service and restaurant building was � � proposed. �learly the intent was to dramatically increase corranercial use of the property. 17.. Ironically, instead of increasing the property use, a November, 1976 fire instead presaged a decline in the property use. New building plans were submitted along with still another increased request for additional � boats (total 192 boats compared to 31 in 1974 - increase 619% in three years !) . When a smaller service� building only, `and no increase in boat density over 1976 was approved by the �ity, McCleary failed to proceed with : reconstruction. The docks decayed, the weeds grew and no on-site services were provided: Only 43 boats were � kept on the property, less than the licensed amount. Rumors circulated that the property was for sale. S 18. In 1977 and 1978, McCleary pursued various requests for dredging and rezoning, liquor and restaurant permits , but did not actively maintain or rebuild the property � despite dock license approval and building permit issuance. • j� . • Resolution No. /09� •Page 77 19. The building permit eventually expired in April, 1978, 120 days after issuance, and 13 months � � - after Council approval. McCleary did not try to begin . � � construction until August, 1978, 4 mon-�hs later, then � only after additional actions by the Council convinced McCleary that more ambitious plans would not be . approved. " 20. By summer of 1978, much new infornation concerning the Stubbs Bay Area and the n4arina Proaerty was avail- . able for Council consideration than had been available " � in 1967, 1974, or even 1977. This zncluded the HUD � Flood Plain studies, septic system design information, � lake use studies, information supplied by McCleary in � � his various applications, a general overview of the development pressures and direction of all marinas , a � . realization of the development intentions of McCleary, � � and an experience with the effectiveness of existing regulations. Much of this new understanding is embodied � in Ordinances 210 and 213, and Resolutions 929, 936, 943, and 971. 21. �he Council confirms again the 1978 decision that no additional authorizations would be approved for the Marina Property until the owner/operator had • f irst _ submitted one coordinated plan, including adequate survey information, to assure that all concerns and requireanents could be addressed in one organized manner, rather than the piecemeal approach attempted since 1974. 22. Johnson' s proposals of 1978 were all made on an informal basis and, therefoxe, received only informal • � review and comment from the�Council. T 23. The Johnson involvement did serve to draw new attention to the status of the. property and the lack of a current comprehensive City policy regarding the � ;:..:.;;:;'._: Stubbs Bay Area. - . � � � . • , . � , Resolution No. /099 Page 78 � � 24. Johnson' s formal license application in February, 1979 caused formal review of his development plan. - After deep study by the Council, reviews by the City - staff, and comments by the public at the public hearing, the Council decided th at the Johnson plan was too ambitious given the needs of the area and the environ- mental constraints of the site. Certain technical difficulties or discrepancies were also found in the plan. 25. The Council conceptually disapproved the scope : of the Johnson plan in Resolution 1005, and called for th is Resolution to set forth all the f indings in th e � record and the conclusions evident and made from those findings. 26. The conceptual denial apparently caused Johnson to abandon his involvement with the property. . � 27. McCleary thereafter notif ied the City that he would be responsible for the property. The City staff then notified McCleary that the 1979 dock license for Stubbs Bay was not in order. As of April 16, 1979, McCleary had not returned a dock _ license application although he had been sent the � form in December, 1978 along with all other 1978 Marina licenses. . 28.. McCleary has proceeded to advertise dock space for rent and to make arrangements for operation in- •- 1979 despite �clear City direction that a ,proper license application and physical improvements need be made before a 1979 license would be issued. In particular, no attempt has been made to correct the � existing dock structure `condition or setback viola- tions. . 29. For the record, since the Johnson involvement began in 1978,. notice of every Council meeting involv- ' ing the Marina Property, including copies of all � documentation and staff reports supplied to� the Council for their review, has been given to all interested � . parties alike, including Johnson, McCleary, McCleary' s . . attorney of recoxd, Keiran, and Keiran' s attorney of record. � Resolution No. /OS'9 . page 79 • , � . . D. DE��ELOPMENT TRENDS 1, The Resort was a relatively passive, quasi-resi- dential land use for 60 years prior to McCleary' s . involvement wiLh the property. 2. After NcCleary' s involvement with the property, the "Resort" became. the "Marina" and commercial activity increased dramatically. Plans for even more cam,-nerical activity have been continually ' presented. There is no indication that ricCleary � � is conLent to use the property to the same degree � as it was when he purchased it. 3. The physical constraints of the property, � particularly the lake bed condition and the flood � plain hazards, place severe constraints on use of the property beyond any zoning regulations. 4. Residential use of the property would be possib le • given the physical constraints. Residential use of the property would be consistent with the past use � of the property and with all surrounding land use. Residential use of the property would have less of an adverse environmental impact on the Bay than � would any commercial use. 5. A limited form of commercial marina use of the property would also be possible given the physical - � � constraints and would continue the past Resort type �� If � . activity. Fishing type boats have less environmental impact on the Bay than larger power craft. Boat rental benefits the general public more than slip rental. A number of slips consistent with the 1974 . level has less adverse environmental or neighborhood impact� than does a higher number of slips. 6. O�tside commerical pressures and speculation tend � ' to emphasize intensive commercial activity on all marina properties. Given the neighborhood and environ- mental constraints, such development appears inappro- � � priate for the Stubbs Bay property. Resolution No. �099 Page 80 ' . • 7. Either residential or limited commerical marina use of the Stubbs Bay property is a reasonable use of property within the legal definition of such. ' Prohibition of unlimited or �greatly expanded commer- cial activity is not a legal "taking" of any property rights but would instead be a recognition of the historic use of the property and the physical con- straints of the property. ' 8. Any developTnent on the property, whether residential • or some form of commercial marina operation, is considered by the Council to be "new" development because the only activity remaining on the property � • since the 1976 fire is the non-conforming rental of . slips on the public waters. The docks in place are structurally deficient and have been declared hazardous � by both the City and the owner. 9. Lack of cohesive City policy on an appropriate � permanent or ultimate use of the property will only lead to further tug-of-wars between neighborhood . and public concerns and private development pressure. IV. RECOMMENDATIONS TO THE CITY COUNCIL . A. STUDY MERITS . 1 . The Council does not lightly commission "studies" and-opposes the use of "studies" as delaying tactics . Instead, in depth land use or policy studies are commiss�ioned when important fact questions or policy questions require detailed review before a well-seasoned conclusion is made or action is ordered. 2. The Orono City Council and Planning Corra�ission members have collectively invested thousands of hours with citizens and professional experts in the development and refinement of the .City' s land use policies, goals and plans over the last 25 years . � � . . � • Resolution No . /099 . • � Page 81 3. The City Council and Planning Commission members have established a record of open-minded review of new proposals or new fact situations as they arise and affect existing policies, goals and plans o f the City. 4. The subject Stubbs- Bay Area and Stubbs Bay Marina Study has likewise been undertaken to assure fu11 review of all the facts and full opportunity for participation of aIl interested parties . 1he v,7idest . . possible range of advice and input has been gathered . and considered by the Council in their review of ' the issues . ' S . The conclusions drawn from this study, and. any � � subsequent decisions or actions undertaken, are therefore made by the Council in full knowledge of past facts , full awareness of all reasonable alternatives , � • and full understanding of possible effects on the City, the neighborhood and the specific properties in question. . . B. NEIGHBORHOOD AND CITIZEN CONCERNS . 1. The turnout at the February 27 , 1979 Public Hearing . � indicates strong neighborhood concern and involvement in the decision making process . ' . 5 . . , " 2. � Most respondents appeared to agree that the Johnson application would provide a definite visual improvement over past site development. Disagreement � involved the level and permanence of commercial activity on Stubbs Bay. ` t 3. Some respondents favored the Johnson proposal and accepted a permanent cormnercial activity level consistent with that application. , � 4. Some respondents favored rezoning for residential . - . use only. � . . ' - Resolution No . /�9� . � � Page 82 S. Most respondents favored less than full scale commercial marina use of the property, either as residential or as limited marina, but not as large _ a scale as proposed by McCleary or Johnson. � 6, All respondents agreed that some action n�ed be taken by the City Council and the marina property • o-�aner to improve the appearance of the marina property by cutting weeds, removal of debris and institution of regular maintenance procedures . ' C. PLANNING COMMISSION CONCERNS � 1. The Planning Co�unission was divided on the question � . of ultimate land use for the Marina property and therefore � submitted individual member opinions rather than one opinion from the Commission as a whole. The individual , . responses were not as effective as would have been one unified recommendation. 'I'he varying opinions did serve • to remind the Council that the issues were indeed complex, that answers were not easy, that decisions . were not predictable. 2. Taken individually, the Planning Commission . recommendations cover the same spectrum of alternatives - and concerns as did those of the general public, - including the recommendation that some action, .some decision is necessary to improve the appearance of the�pr'operty. . � 3. The most influential portions of the various Planning Commissioners comments and recommendations � were those discussions �concerning environmental/neighbor- hood/traffic/societal issues . These basic planning � c5ncerns help uncover facts and direct attention toward � � optimum land use alternatives. � • �� Resolution No . /099 � � Page 83 D, GOVERNMENT REGULATIONS 1. All the various regulatory bodies have similar rules and regulations for the common purpose of protecting valuable natural resources and pro�noting the most general public welfare. Differences , tahere they occur, arise because of the varying perspective and special jurisdiction established for each agency. 2. Because of the legislative overlapping of the various governmental jurisdictions, the regulations and ordinances of the various agencies are also . overlapping in many instances . j�There this overlapping occurs, the most restrictive regulation applies . 3. j�TOrk requiring review or permits from several � • agencies must undergo detailed review by each. � The Council is working to minimize this duplication, but in the interim, applications must receive approval . and meet the regulations of all jurisdictions . In effect, each agency has veto power over any project. 4. The LMCD has jurisdiction over boat use, storage and dock structures in the waters of Lake Minnetonka. Stubbs Bay Niarina is required to obtain an annual multiple dock license and to meet all the setback regulations of the LMCD. One condition of licensing is that .the property use must be consistent with 1oca1 zoning regulation. � � a) As noted on the exhibits, neither the inplace McCleary docks nor the proposed Johnson docks " conform to the LMCD (and City) setback requirements . ':ti . b) The proposed McCleary docks (�xhibit U-2) do confo�n to setback requirements but may be too congested to meet DNR State Fire Code requirements . c) The docks in place along the residential shoreline . may not be used for commercial purposes . • . � - . Resolution No./o9y' � Page 84 �` � � d) The docks still in place in 1979 do not conform to LMCD dock construction and safety requirements. e) A residential dock on the Marina property for up to four watercraft would not require an LMCD license and would be much easier to erect in fu11 compliance with required setbacks. f) There is no vested right to any given� level of lake access or use. 5. The MG'f�TD has jurisdiction over all of the Stubbs Bay Study Area in matters concerning flood control, � erosion control and drainage. Shoreline and lake bed � , regulations in particular apply to many of the � � activities and proposals concerning the Tiarina property. a) Natural shoreline vegetation and topography are ' favored over artificial shoreline alterations . ! b) The City has primary responsibility for determining � . proper and appropriate land use. c) Flood plain ordinances and regulations are consistent between the City, MCWD, DI�TR and HUD. . . . � d) Dredging or otherwise changing the natural shoreline � . is inconsistent with MCWD policy. _ , . . . e) Soil conservation plan is required for any .� development on the Marina property because of proximity to the lakeshore, soil types and. flood plain designation. • � _5a � z f) Required structure setbacks and hardcover regulations • - are consistent with City and DNR regulations . • g) Residential development of any lakeshore property including the Marina property normally is more consistent with MCWD policy and requires less variation � � from natural conditions than does more intensive • _ co�nercial development. �� . Resolution No. �099 . � ' � � Page 85 6. The DNR has jurisdiction of all shoreline .area, ' all flood hazard areas (as the local HUD coordinating � ' agency) and use, occupation or alteration of the beds of all public waters including any activity on Lake Minnetonka below the ordinary high water mark of 929 .4 MSL. � a) Filling, dredging or excavation is carefully � regulated by rules consistent with City and MCWD - regulations . b) Dockage is Iimited to that necessary to reach navigable water.� Dockage in excess of the minimal amount, such as all commercial multiple dockage, � must be justified by some public necessity. � c) As with the MCWD, the City has primary responsibility � for determining proper and appropriate land use. Special attention is directed toward the need for � management of comunercial areas and the protection of • residential areas from cormnercial encroachment. d) Required structure setbacks, maximum heights and maximum hardcover allowances are consistent with City requirements . � • � e) Shoreline alteration, dredging, filling, excavation and erosion control requirements are consistent with . � City and MCWD regulations. . . . . � • f) Sanitary requirements are consistent with City ' and Sta.te Board of Health requirements . Soil and � flood plain conditions place severe restrictions on development of the::Marina Property and require ' correction of non-confprming septic systems in the , flood plain: � _ g) DNR permits are required for dredging, shoreline ' alteration and permanent dock construction. DNR � .regulations regarding structures, setbaeks., flood . plain restrictions, etc. must be enforced by MCWD and City ordinances . • . ' � " Resolution No. /0 99 � • Page 86 7, Hennepin County Department of Transportation regulations affecting the Study Area are primarily limited to driveway access locations along County Road 84. �ost traffic is encouraged to access on local streets not directly on the County I�oad. The Narina property �in particular must have the existing access relocated • to conform to uniform safety standards if the commercial operations is to be reconstructed. 8. The HUD Flood •Insurance Administration Study was completed in 1978. The City Ordinance No. 213 � . required to implement the federal insurance program � has been reviecaed and approved by HUD and the DNR. The flood plain studies made as a part of this program clearly show new information• of severe flood plain development Iimitations on the Marina and nine (9) ' East Lake Street properties . The flood plain designativn . • of these areas has impact on housing redevelopment, sewage treatment, wells and any form of development � on the Marina property. , � a) Existing on-site septic systems _ in the affected areas are almost assuredly located in the water table � and therefore pose a severe pollution and health hazard. Reconstruction of these systems may be - impossible because of the flood hazard. Sealed � - holding tanks or municipal collection may be the • only. options . � . � b) Housing rehabilitation may mean extensive filling to place the structures above flood level. c) Development on the� marina site also would require filling andTflood-proofing. � 9. City of Orono ordinances are written to be consistent with Regulations of the LMCD, MCWD, DNR and HUD as they affect the lakeshore an� Stubbs Bay Study Area. a) Detailed City review by Staff, Planning Commission and Council of the McCleary and Johnson proposals � has been required to assure compliance with all local - ordinances and compatibility with other ageney regulations . Piecemeal submittal of proposals has hampered such �review and delayed decision-making • over the years. Resolution No. /�99 ' ' ' � Page 87 b) Residential development or redevelopment has less impact on the land and less need for City services than does commercial development hence residential development has less strict or involved � regulation than does co�r�nercial development . ' c) S�wer, s�ptic system and water supply �ordinances . follow State Board of Health, PCA, DNR and MC�(dD guidelines and regulations . Strict enforce�ent is mandatory to assure the protection of public health, even if such enforcement would be an economic � hardship on individual property owners. d) 2oning and land use ordinances are required to implement the goals and policies of the City' s Comprehensive �Plan. Variations or exceptions without a showing of hardship are contrary to the . - most general public interest. . , • . e) �ommercial dock licensing ordinances are required • - to preserve general public access to the Lakes and . to protect against pollution and environmental . exploitation for limited private gain. � 10. The �ity Council has adopted many resolutions in ' recent years dealing with general Marina activities � � and with Stubbs Bay Marina in particular. The resolutions - - have been adopted to establish the Council ' s true position ' � as increasing development pressures have continually • pushed Marina operations to the brink and beyond the . intent of the City' s ordinances . Taken together and � over the years since 1967, the escalating development � trends are clearly apparent. , :t ' 11 . All the regulations , laws and ordinances ,t however � altruistic, will not accomplish the �desired goals of publzc health, safety and welfare protection unless � - the City Council takes a firm stand 'on enforcement. The record is clear; Marinas must be regulated if the = public goals are to be achieved. � � . - . . - Resolution No./099 � • Page 88 E, OUTSIDE COR�SULTANTS " 1. The Harza Report has played a major role in the formation of policies , goals and ordinances in the � City. The report clearly identifies hazards relating to po�nt source (septic system) , and non-point source (storm water runoff) pollution and their respective potential for lake water quality degradation. Limi�ations on develo�ment and hardcover are traced to the -report' s discussions concerning the cost and _ physical inprobability of treating impure runoff. Public and private costs incurred to install. sewers - or �assure operable septic systems are traced to the . report' s discussions concerning septic system failures . � 2. The 1975 McCombs ground water study findings remain valid in 1979 because the fact situation remains unchanged. Septic . systems have not been rebuilt or . abandoned in favor of a collector system. The study • • recommendations remain as valid alternatives for correcting point source pollution in this one remaining . ' - � unsewered/developed area close by the lake. 3 . Dr. Wood' s professional judgment on the causes of siltation and sedimentation can not be ignored by the . Council. Obviously, a large commercial marina with � much power boat traffic would be detrimental to the quality of. Stubbs Bay. The fewer the boats , the lesser the impact. � 4. Mr . Patchin' s appraisal of the Marina property , raises interesting conclusions : , a) Residential u�se of '�he property has the same � value as limited (30 boat) tcor�nercial use. b) Estimated market values higher than the residential . , value are created not by commercial zoning but merely , . by the approval of additional slips available for � rent on the surface of the lake. � ' ' Resolution No . /G� �'� Page 89 � . - � � . c) Since the approval or disapproval of slips is a govern�ental discretion subject to performance standard review, and not a vested right of the lando�v-ner, there is no diminution in value by any � � zoning decision, only increase in �%alue by such slip approvals . d) The value of the Co�ercial zoning at most is only $14, 000 being �he difference between 66 slip co�-�nercial and 66 slip non-conforming residential designation. At tne 30 slip level, the cor�nercial zoning value is $0. � e) The indicated value of s�lips in the lake (the increase in value betjaeen 30 and 66 slips in . co�-�mercial zoning) is $2,066 per slip. This . � compares to an annual license iee of $3. 00 per slip and an average annual rental charge of $500 . 00 to $1,000 per slip . The question then becomes : "is the public benefitted to the sum of $2,066 by • allowing each such addi�ional slip to exist?" 5. The Council accepts the reconunendations of Mr. Isberg as being the two most practical alternatives for the Marina property: . . a) Zoning the property for residential use only � would have the Ieast iinpact on the neighborhood and � �he, environment and would not deprive the owner of aIl reasonable use of his land. b) Allowing a limited corim�ercial use of the property would have more impact on the neighborhood and the . env ironment, but. would be in keeping with the owner' s desires . The allowed�;use would be consistent with the services and historic level of use of the Stubbs� Bay Resort prior to McCleary' s involvement. � c) Authorizing development of the full marina is inconsistent with the historic property use, the critical nature of Stubbs Bay and the goals of the � conanunity. � � , . • Resolution No . /099 � Page 90 F. CITY STAFF , 1 . The Council concurs with the recommendations of John Gerhardson regarding the necessity for drainage control and better access location depending on future use of the Narina pro�erty. - • 2. T'he Council concurs with the com�-nents of Tfelvin Kilbo regardizg the Study Area being "out of the mainstream" and thus having probability of Iess � frequent police pa�crols and longer- emergency response times than areas in the urban part of the City. 3. The Council concurs with the recommendations of _ , • Michael Gaffron regarding the need and options available to correct existing sewage treatment � � deficiencies in the Study Area. 4. The Council accepts the recoiranendation of •- Alan O�son regarding residential use of the Marina � , property as one valid alternative. G. SUMMARY OF CITY COUNCIL CONCLUSIONS 1 . The Stubbs Bay Study Area is a unique residential . . area with closely spaced homes located near the lakeshore, • � � yet in a rural service area of the City. � , 2. Neighborhood redevelopment has been less active than other similar areas of the City. This deficiency � may be traceable to three factors: � a) geographic Iocation,; b) the lack of plans for correction of sewage t'reatment deficiencies , and � c) an uncertainty as to what type of development will occur on the Marina property. 3, Correction of sewage treatment problems in the Study Area will likely be a costly undertaking and • may be burdensome on the property owners . � . , Resolution No . �� '9 Page 91 . � , 4. The Council does not t;-ish to extend urban services • into the rural area, such as the Study Area, because of the cost of such services in terms of both dollars and development pressure. 5 . The Study Area is intended to remain essentially rural in character, even if sewer service extension . is required to correct a health hazard. . 6. Development of the PSarina property� must be consistent with the rural, residential character of the neighborhood, must be respectful of sensitive - environment of Stubbs Bay including the flood plain, � and must be in accordance with the various applicable � governmental regulations . 7 . Development of a full scale corunercial-retail � . marina on Stubbs Bay and in the Study Area is not in _ the public interest and is not a vested right in the property. • 8. The owner of the Niarina property is primarily responsible for being a good husbandman of the land, - being a good neighbor and using the land and the • water in a manner that will b enefit the neighborhood and the public in general. '� .� Resolution No. /p�� • , �Page 92 AND, FURTHERMORE, BE IT RES'OLVED, that the City Council of the City of Orono hereby orders the following: • I. The research and findings of this Stubbs Bay Area Study shall be incorporated into the overall review of � the City' s Comprehensive Plan. II. A planning policy of the City shall be to encourage � housing improvement and rehabilitation in the Stubbs Bay i:, Area, i III. A planning policy of the City shall be to retain � the general rural residential characteristics and � - classification of the Stubbs Bay Area . IV. A planning policy of the City shall be to continue all necessary efforts to assure that sewage treatment • or collection in the Stubbs Bay Area is adequate to protect water quality and the public health. V. A planning policy of the City shall be to discourage . � commercial activit� in the Stubbs Bay Area. : To this end, . the Council orders that a Public Hearing be called pursuant ' to State Statute Section 462. 357 for the purposes of � ' considering an amendment to the Zoning Code of the City ' whereby the land in the Study Area currently designated .as B-2 Lakeshore Commercial (Stubbs Bay Marina property) be redesignated for limited comme�cial activity or for ; residential use only. � i _ ,, VI. Pending the results of the above noted Public Hearing, the .Council orders that in`terim use of the Stubbs Bay . Marina property be in compliance with all City, LMCD, MCWD, DNR, State Fire Code and State Board of Health regulations, including without limitation: � 1) The operator shall obtain yalid City and LMCD . licenses for any marina or dock operation (the Council notes that the Johnson application has been withdrawn and denied by Resolution No. 1044 and that McCleary has � had docks and a limited number of boats in the water throughout 1979 without ever having had 1979 License � approval) . Resolution No. �0� � ' � � Page 93 � 2) No docks shall be used in the future unless they shall be rebuilt to comply with all required setbacks and fire code density standards (see Exhibits K-2, U-2, AA) and with LMCD dock construction and safety standards, and unless valid licenses be issued by the City and the LMCD. 3) Adequate sanitary facilities, fire extinguishers, and security shall be maintained on the premises. � 4) The property shall be properly maintained to . eliminate weeds, trash and debris. '-� VII. The City Staff shall initiate necessary studies to � � determine the feasibility of the City undertaking a local redevelopment project in the area, which project . would include rehabilitation and/or revitalization of the area' s housing stock and practical options for resolving : the ongoing sewage treatment problems of the area. Such studies are to include practical planning alternatives � and analysis of all financial options available. + This Resolution was adopted by the City Council of the City of Orono ; at their meeting on the f/ l� day of �Q� _ ,c.�, _ , 1979 . � —�- { . � : i � . , , . William B. Van est,' Mayor i � � ATTEST: � I '} � Li� ! Walter R. enson, Clerk/Adm nistrator ! . ' . � � �k'�'fl3/T A �,'l_"SoL. �09.�' / 9'J 9 C'o�°�'a��1sfvE �Q� l�Et�r�-��- .S��r,�.�s ��s� S�voy ��4 �� ,��.s _ . _,� -----�� .�.. � -----�-------�------� ---- -�----__�-- - =-=_=_�--�----- ---- ----- ------- ---_- __ _ ------� �� ---- -- - �._.:--- ------�. � �� _� �3� ..I , - _--'" \, ,1 ��'� r.'°' _�.,- --� r�`'�_�� ,- �i �'�I �� \ `" ' _ : �, "�,�_ �F��._, � ��-�+ � __=y` �r � � ��'F-��__�_- � � ii ,,.r' �� i-�� ' '."' _� - _' ��.._ e y, �-.,` �,` _ , Q_ 'I � ��_�_- -�, Y 1 \\�' �i_"'_ , _'""__ ' � __' " "'_ ' � • I � � � (��' � .,-�_�,� —_'�� . . : - � � � � . � :I � � --- - i� - �-- ' 1 _ � • � � �. 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MARINA PROPERTY �Area 1. 94 acres , lakeshore width 250 feet, S' elevation 929. 4 feet to 934 feet, Iakeshore depth 280 feet. - - Parcel 1 Block 7, Bayside Addition to Lake Minnetonka � 05-117�-23-13-0031 2 Lot 21, Auditors Subdivision 203 OS-117-23-13-0018 _ , � 3 That part of Lot 22, Auditors Subdivision 203, lying . � - southeasterly of a line bearing south 48 degrees 30 minutes west from the northeast corner of said lot. 05-117-23-13-0019 RESIDENTIAL PROPERTY ' S ' 4 That part of Lot 22, Auditors Subdivision 203, lying northwesterly of a .line bearing south 48 degrees 30 minutes west from the northeast corner of' said lot. 05-117-23-13-0020 �. 5 Lot 23, Auditors Subdivision 203 � � 05-117-23�-13-0014 Parcels 4 & 5 combined May 2, 1962 in registered abstract �erti€icate of Title No. 'SO4558. � � . ��f�'��'j� �� - ��'��., �09� � `. . � � /" ��--._-� � � � �,:-� � . / � < . �a/-i �.`; —�. . , � � � � ,,�`� � a . :%'� �� 5��`�� i '. . .�"_ .` � v ! 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I•icCleary: � . . � : � " � : . - �:. _ �' � . - •'she L.M.C .D. inspector �.n8 I �inspected �our �arina i'aci�i��es _ � - . � '�� ,; g r�. T�, ��nera ap�ears to� be a violztion oi'. the conditiona � �of �our license . -You �ere licensad i'or 31 .S��s �ncl our count . � .. tnis �orn?ng, indicated b5 sli�s . ••._ : . - '.. . . . . . , . ��1'so. �ou h�va an� ��dde . � sli�s � on ricate resi ential �ropsrt� along . . „ �. � � alc�ng Lsyside� no�d that are .to be cons �rue zs o�her than for - �. �he private use� of �ne proper�y acr,oss ths streat��and al�o violate ,. • . � the s�de s�t oack �as reeuired �n crd�n�-r!ce� _�l_L .1�.C .�.�_ .� . • � � - I�mlist give you 30� credi�t _�or upgrading Sour_ operation as far � � . � � � - � as orderliness ; however, if you intended to erpand your�� oper- . - • �tion,�� you should have � so �s�sted when applic�tion s.t�s made for. _ . _ � - - a license this spring and gone� thro�:gh legal proc.esses to � - ' • � - obtain such a-n exF�nsion. :_ In this. �anner you�.jeopardize your � _ ; - � �- - - cr�nce to gat a licer.se a� ail this Decerber. This;_let�er � �� -_ � _ : . � - beco?aes� part oY your' record when it ccmes up for revi�w at _, ' , ^ . j : � ' � - tnat t�r�e; and�how •yo�, comply�will. also_be _a� par_t oP 'that. . � _ - - - "�recard- - � _ -- __'�-- - . � - _ _ =� � - . . - • _.-� - . �_ :;. : _ • . .. . • •- '"y • � �R � � �. . . ;�: -,_ If� there�.are = Guestions, .pie�se i eel fee �o c811":_^ -� �--`�. � : . • ,. � . • � . . - . ' � .-. - . -- . .. •- ' _ : ° . . ' SincerelY�- - � - .-' .:,_ . - . ,'. . • _ . _ .. . . - . _ � -- � : • � - _ . _� . . _ "�� - - - - -�. . .. � _ , ._ _ v_ .t-_ . _ . . - ' t _ _ _ . .' .... Scheller , .� . - � � ' . - � . � . . - = _ . " _ �ichee3 : ' , ' - .. � . � : .. . • ._ , .. - � - � � _ :,. ' 3uilding Insp�ctor' �. '._ - : .^ • . _-: _ - • � � .' *Mixa L.A4.C .D. _.. • _ . - �� :. . Y ', � -. _ _ � • ._ •� . �: : c.c.". Frank . , ; . . . - , - _ - _ , _ : . . . � . • _ _ • - _ - • ..� _ . _ _ • - _ � . - -- .. . _ , -. . � - -. : : - � _' �- . .. _ . �� .^ . . �. � . r� ` . . � . � • ' _ ' - ' ^ . " ` .� • . - . .� . � . '- • � . - . - • , - - . , • - � � : " . _ . • _ .. " • . � - � ' ,' 4 _ . _ • - • _; � . • _ - -- . : : - ".-'' . � . -.. - ` _ '' � ; •.� � _ ' •. y '. ' - . . • .• ... _. , �� - '_!.. , . _ : . 4 _ Y_ • ` , ' �.� : ' : ' ' • . - . _ . _ . . . � :- - . �_' ' ' : • . _ • � � . - _ .. . . • . _ - . ' • _ . _ -• _ . '. ' - • _$ -: = . - . ��:/�� '-� _ — " � = ; -� . �?��, . %9,� �,� ; �=s _ , �� J `_ . � _: _� ; �'ij �:� ' J • - , � `�" ` , � '�.l � v `J^� y \� �' C� � • . � � � ^ ,,j� � � � � . - C� U ��. :� �� . J �� / � � � � f � / � �~ � � -- - � � � �-- � � . � - , . � � . . �—_ ,��a . . � �- ! t-----�------ . .�� . .1 • , �_� � � ' � ,----� - � �--- -----� . J � . . . � � � . y . . , � �� ' �` c1 C� , . . - _ . � . � � ' r �. ��.� T• :� �r� � j � rl • � / -� . � ' ... . ' • � . ' ` �` . •�i � . `',Y�„�i i t��i�� . ' . 'a..�3:+ � T. ; � �°�� / ; � � . � � ��. .��9.�. r .�,, � . . � � 3470 Ea}side Road - • Long Lake, Tiinnesota July 16, 1974 Village Council • , ' � �lillage of Orono - ' P.O. Box 66 � � . Crystal Eay, Tiinnesota 55323 � . � Gentlenen: ' . This is in reoard to Mike's letter to me of July 11, 1974. � � . • It was my underst2nding that L.M.C.D. was the initial focal point for approval of .courmercial dock facilities on the lake. P1y understanding was that. if one worked within their constraints, • and secured approval from them, the village would also approve. � Therefore, last winter when L.M.C.D. sent out their applications ' � I contacted Mr. Frank Mixa of L.M.C.D. and discussed with him my uncertainty as to whether or' not I would be in a financial . position to revise the dock scheme in the spring of 1974. He advised that I, should submit my application as it was in the ' previous year, and submit a revision if necessary. I followed instructions, and late in March submitted a revised �plan. It � . was for ('g� slips and was ap�roved on Avril 4,_ 1974 (see attached) . I assume at that time that Orono would receive a copy of 'the _ revision from L.M.C.D. , and bill me accordingly for the additional . slips. To date I have not received a new billing. During the . , construction of the docks a change was made which permitted the construction of seven additional slips in the same.area.. L.M.C.D. has in hou-se a copy of this second version for a total- of SS slips. . . � - As to the ten4�h�re slivs •on the residential propertz� adjacent to the north of the marina; which I now own and occupy; those . slips existed for years before I occupied the property and I fixed them-up aga in this year. : Last year before I ok�ned the property, five of the slips were used by the owner and his . , � . . . • ` - , j _ - ��'��f f,._ �-� ��L . %�°� � � � � � . Page Two (2) July 16, 1974 friends. I now use one oi them m�•self, per�it three nei�hbors to use three slips at no charoe, and rent three slips out. If some revision of this use or othcr ��,atters is in order, I u�ould like to get together and discuss it �.�ith you at your conveni�nce. Sincerely, �� , � � , ,�:� � � . - . r` � %G�� -�.� . � - � `( Ja�zs K. McCleary . cc: rrank riixa, L.M.C.D. 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SLPiect nl�n ��=s aeve,o�ed �"�.er clo�e C017SL'Zt— 2't.?O?': W':�1' �:;G' L'�=VOT c77Q i.�";@ �'�.^?:f� Gno ?:-� :•een ai�:0?'OV6'CI bV yi."!B 7•j�.r� f;OC_. C^`.i�:li.�E2 �U�JECt i.0 i�YJc� GT'JZ�O�''?, 2t i..^.@ yG�2iE"lc]. !ueE�— in� 1�;,cr _n :�r��ry. . � . z ��?'lCE='�i.ct"1Q i,;ct IDV 1°78 dock c_:�13Cct10'? 1S C13_"'ren-ily scnec.uled �O 2}�211i. :'@�T12:: l:l�i.�'1 i.}'l6 O�nET �-T1?72 2UT?� ?C=�10'.'-'S r7:?@2] tbey al l . - . arrive. Sir,ce t^e c'e��y is .li��le to be sone ti;=,e, I ::ould 1i'.�ce i•O T°�U@£�i. �.�2'`i, y0U 2.C't Ori fil�% �Z�TI =� VOUT C�I'��ESt CO1"tV@ri?ence• i^E TEcSO'1 1 cTi'i recueS%3'i� �::;7� 8'•�6C32� CO?':S1C°Tc1i.70I7 ?S yi.0 e?icble � ' me to order �^e �;ateri�ls for �he cx}:s so ��t t�ey can be iYs�zlled prior �w �he 1978 boa�in� se�son. :s you may ;^?ow, un�rez�ed ��ericl to build such � svs�e� r.:ust be ��ecially ordered� i rom . t�e 'r+ort� �roods, �ahic� ��}ties a r•,in�num of 3� — 6� cays. The ; • doc�� ::u�-t tren be buil� or. t':e ice, recu�rzn� �La��r eo_viprnent t0 ODETC�@ ll?'1�@T ID=T��nc1 cond��'i.101:S li 'f.!i@ CO?'!S i•TUC1i.lOI1 L�?'OC@�S is nel��•ed �oo lon�. � ' I feel �:n�t t�ne safet,.,T and =•:eli�re of �the dock f�cili�y users �ill be �dver�el�� e=�ec�ed ;� � - . :-� � ' ,GV . V .� Gn0J1,Y��r G=a�s oy ��e GT' �2� �•ro ss. Jus� i�st year an inju-•y occurred which M�s supposedly caused by an Un�orseen fl�w in on� o.f �ne docks. Insur�nce i s �1�o �ore di f�icul t to �e,t a� docks get �ol der. Therefore I rec�„est t�h�t you anpro�Te the �revious?3 submitted - GT7D�ZCG'�i.lOYl �y r'ebru�ry l� _ SO t}1ct 1 C271 LUTCfi2S@ '��7@ necessai�' _ . � r•er.�iis �!1C i,�ci.ET1c1S. ' • Sincsrely, � ' S �� - s K. l�.c:,le:r . P.S. •ih� a�p�ovec' buildin�, �lso to be ouilt this spring, ti�rill be used for ren�ir �nd sales onlv, no-i su�rer stor�Fe of boats. . . . ; . ; � l,�': �978".l�cc•g,.�� .��..��.- . �_. . ,,_ . . r��-.�� J�. /f /9�' ' . �� . . /� c� , J� � . � ' ,� _ � � ' , � �, � � • • ` � . .� � � � . � i ,� � . . - � o . . . s � � � � �� . . . � �r � �, � . �r� , �. � � o � � `C i � � � Qo � � � � � � . � _ � � � � . �'��/� !� � `� ;' .� . r�Z��. �� . �o � c� . . �� '��! � �� o . � . `�1 `, . r � �C l. `� W � .`C.r . Q � � � � �'� - ' L, . . . � � � . . � � � � . . . � . �'�'�',� : , � �s� . • . 9� 7,ho�] • � " . . �$ L' ' � 1 ' n � +fj � �c . � ' �� . V �! V . . I , M � � :� a�"- �- a �.� P, �;, �i �i` � � �; � �i �i � I :� • . � - • �� s � � � � N M � 'J N K N n� �+j Y1 h M M � h h 1'4 A � � r.� 'y� ' � . . . � �� . . �� . I• . . � . �/ �o� ' 1� _ � h � �+ K F ,e a• o � � � � � v � � P N ?J I t V � � r � , _ . � ' . � o - �t � � . 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Tc•1<•1�honr S i,"',•!'.'.�7 �_�` � - . ��`' � ��r��`�'" �� `�� " � I'usl Uffice f3c>x 6G•Cn�stal $ay, ?�linnc�nta 5�32,i•'�lunicipal Ufficc;s f�;t w,�( � �s On the IVorth Shore of Lnke ;llinn.etvnka J'��`f i � ��?��. . �... ��. . "__.__.__1� ��'�/� � ( �-/ D�ar Orono Resident: On January 23, 1979 , the Orono City Council adopted Ordinance ?_19 establishzng a moratoriw-n on develop�ent in the STUBBS BAY AREA, defined as all the land �aithin the north half of Section S, T117 , R23 Iocated south of the Luce Line Trail. T'he attached map shows _ the affected area . The moratorium will last until July 31, 1979. . The purpose of this �norat�orium is to pe�it the City Council time � to review planning alternatives in the area . The special concerns include housing rehabilitation, �sewage disposal systems , flooding hazards and redevelopment of the Stubbs Bay Marina property. • .Mr. George Johnson has proposed plans for redevelopment of the m3rina. 'I'hese plans will be the sub j ect of a special PUBLIC HFARING to be held at 7:00 P.M.., Febniary 27, 1979, in the City Council Chambers. . Issues include the 1979 Marina License Application, sewage disposal problems, housing problems , possible rezoning of the marina property, and possible comprehensive plan amendments . - Marina site options � incl,ude: reconstruction as a full service marina; reconstruction as a li_mited service marir�a with dock rental only; and • rezoning for residential use only or some other use, as yet not suggested, I urge you to attend this h�earing and to participate. The Cowncil �needs your opinions regarding the issues and the options . What can you offer regarding the his�ory of the area, the use of, Stubbs Bay, the fi'shing, etc. ? Should the marina be rebuilt? How �uch activity should be permitted? Will' it� affect your property, and how? What do you prefer? " . � ' ' Please plan to attend. - � Sincerely, � , • . � � � - /�"� , . . Walt R,� Benson Cit Administrator - ' . i.inn _tL • . � . � , � ��1�' �� '��.. !�..�.. � �� ,'� ,,'��?�-� .Sf�,i'�s ,��%�' �''��/.;!/C -;;��,;j��;:`�'� 2� %%- �� /,/ �� . :�,� . I ----=--��--\�-�A��--------�--- ---� -- - ---- •�_ 3-____ _-_�__�_�_-_�-- - -- ----- -------_--�--__-- �:--------�� - � �` � - �' � _ - ,�� !. � /-� "��_-r�� rr`� i�� ; •-C[':.:r �� - ' �_ � � \ @, �: �,�� —..s✓��.,� ' — . � ��-�_�`. .._ � '" , 'y' - . _ _ _ ' \_\ /_ ~ •_�: ��'— � . ;; \ ,' _t9 _- ��`-�_ =��:: y =--;___-==_--_ - i: _. --,,.`_ ---- _`� ::� Y I . � . ?�� .-. .� r _ � - i 1 � • �=�� _ � i .1 .�.....� � .:�:�y*�` `�� p ��... . i ---�� -------- - ----"__ —,-- —�-£�-->-`��. . ��_- [�= 3^ i � ��-� �. . 1 �7,�:1'�:_ �-�--�•--- u'_' r ` • � � 1 a'2 .. ��_^ . r..r -r - _ . - "-_ - ._ . . r.�Vi;'_ �L�, .�� `�' . �J— '_z. _.. � • i� .��.. I•:1;�{��"'G .. �;. . ' � ��= ' _.. _i� � } ..`� __ � � �r . . 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" i � 5 ��\��'y _...._ Jr .�" ' +�-`z'_."i` ' "' vv-r ' � �� -?C"��• v��Y ' '_'_ a— � �"=��.i` _=- � - . Si.� �„--L • _ . �� '.,F._,'• � i _�� '�'�.'�- L"�..' �r•�" . ' _r`_ J • ' I � -_r_� �-�=--�2��'s�� _ ..._._� E �' � �_-�- _ � l -�:- �''�c� �' . _ '.� ? � z� _ j ---�__:_ �, - = �}. ° -r: - " _ � �t= _�� -- �. - . - - - . S '- i�.� �V + •'+- � • t�i�''�r -- - _ ...� - -=-�r`;' . � ..ou.c ��t` � `�,� _-" �j: � \a - - _- . �� , . _ '. y� :_ ..�•; '� • •� ' - � � ' _ - � • Q, ' '`'- ' - r� . • � % . ' - b� �. _..:_'';"...._....�`. . , , �4' � — . . . . �r �' . '-ii� . . . ' . . . � � . � . • wllLl4u T, NILLS . . � _ . .��t�a•� ...�i• . . �XNf6�T Z-� - . �z ESo� . /09 PI ANNING COMA9ISSION CO;�,��SEI�'TS - FEBRUARY 26, 1979 � GREGG HANNAH . ' Exclusive of professional opinion, cahich I have not seen really, ' I am very intrigued by the way the architect has made use of the � site and I am very encouraged by the fact that the restrictive covenants would set a ceiling on the amount of corru-nercial business that would occur on the site. I think it certainly is the most attractive use of this site that I have seen presented to date. � GLORIA MCDONALD No Co;�m�ent STEVEN WILSON ' • � � I . thi�k the construction of °a marina in �Stubbs Bay is not consistent with the� residential nature of the area and I am concerned that the boat traffic coming out of ri3xwe11 Bay with two marinas there would be � inereased because Stubbs Bay' s only access is out through Maxwell Bay and I think that is a major traffic problem. I am also concerned � about the nature of Stubbs Bay as a small shallow bay and with too much boat traffie it will take the use of the bay away from the residents . I am supportive of Alan Olson' s recommendation for a dotan-zoning and denial of the application. � � TOM FRAHM � - I think most of the writing I have seen here is concerned with sewage. _ � and �either way, wheth er we allow a single family dwelling� or -a marina on the site, there" will "b'e a need for holding tanks and pumping so it . ' . really has no bearing on either choice. Either way it will not harm anything. The two problems as I see� them are mainly- traffic, both � boat and car traffic. I guess at this point I am not enougli of an expert to say whether either one of them will have any� major effect . � on the area. I tend to think not. I am kind of worried about eliminating� marinas as much as I would � like to see traffic on the lake down, - I believe there is a big push by Hennepin County and the State of Minnesota to make Lake Minnetonka more accessible to the general pnblic, and if we start eliminating marinas and accesses to the lake, I think we will be forced 'into �something that will be a lot less favorable that what we have now. I guess I am in favor 'of the marina being permitted. � � , � � . � . �'F1 tg lT z-2 fZ ESO L. �� Joxn r�r��L � , � I have to look at the pluses and minuses of this thing from all the � balloonist reading I have done and I have to agree it is in a residential area and does not belong there. 1. ) It is really grandfathered in by the days when it was a beer joint and I understand . it was originally put there to rent row-boats for fishing. 2. ) The flood plain. 3. ) If what Dr. Woods states is true about Stubbs Bay that it is going to harm the bay, I would have to go .against it. The only reason I can see for it being there is that' there has been a marina there and if we are locked in, I don' t see why it couldn' t be residential . . �' � . , . . . . , S ;� � . ` � �`!," i E� ��1 z-3 . �E�� , �099 � � I feel the staff and consultants have done a very extensive study of the problems within the Stubbs Bay Area . I would second Mr. Isberg' s recommendation about studying all present B-2 Lakeshore Business Districts in Orono with an awareness that they have an adverse effect on residential neighborhoods . I question his _ classification of the area as basically low density rural. It would be interesting to know the average lot size in the moratorium area . I feel that most homes are �located on substandard lots (not two acres) . Mr. Pesek notes that there are 9 structures on one-acre adjoining this property a�d other properties 1/4 acre in size - not really low density rural. This area has many problems with or without the Marina and we must � look at "future public expenditures to alleviate several adverse :� conditions" as stated by Alan Olson. • After studying the issues and talking with many individuals , I feel very uncomfortable �down zoning this property without co:npensation � and am concerned about our ab ility to justify our actions in court without incurring a great deal of expense. If we succeed in dow-n zoning then we have a start towards more • effectively dealing with non-vested rights to comnercial use of the lake. Great, but we have had trouble in this area in the past. If we do not succeed we have, I believe, lost the commitment of a home owner, and developer, on Stubbs Bay. He has by his previous actions in many areas , before this Council, the LMCD, etc, , shown . - a concern �for preserving what we feel are our goals for Orono. This would be difficult if not impossible to say for other marina � operators. What tk�en �-- another blue fence, stop work orders for dredging, traffic problems and violation of dock lengths. I feel a limited use marina following the ordinances of the Village, the LMCD, etc. with a variance to construction in the flood plain, a holding tank sewer system and effecting natural screening is the best position for Orono. The above variances would also be necessary� for a single family residencse. _ , JoEllen Hurr � `� . Planning Commission Memb er , � • ' 2/27/79 4 ' w • � v `.' ••"- r ; �,�-1 f Q��; o � � ` . o � v �c��E�L . .,��0� � — � _ � �- �� ' ° � '� " `�' � � . - ��^ - ..7 � . � _ 7 - �: ' �� F J I . � 7 A � � - -� / `� . �� l.f--. 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Gunnar C. Isberg Isberg, Riesenberg, Cnelseth and Assoc. , Inc. 2116 Second Avenue South : Mi nneapol i s, ;��i nnesota 55404 _ Re: City of Orono Pronosal Reoarding - �� Stubbs Eay I'�arina - Dear Sir: � Regard�ng p otenii al .�raTf i c probl ems at tne abovaarefWi�h�ad Pro j ecti�onsof 84� the current AADT is less �hano�e��;a�hexistsPerTheyminimum acceptable sight 2000; therefore, no serious p ref ers ances are 350 feet right and 260 feet left, and these minimums are met dist entrance. Generally, Hennepin County p (although ba'rely) at the existing ordinances prohibit' however, if City the entrance • internal access (i.e. �rom Lake Street)� ��,ould recommend moving this due to zoning differences, the County drive to the Smith residence) approximately 150 �eet east (opposite existing where sight distances are greater and the road wider. 'nstance of a neighborhood park, internal access as noted above might In. the � . best solution. However, traffic volumes might be less (unless a beac be the be single automobiles without were present) arid Lehicle sizetherebylreducing potential traffic hazards on boat trailers and � ew trucks, CSAH 84. � ' ' and if there . Hopefully these observations are of value in your deliberations, e an further questions please call me at 935-3381, extension 225- ar Y � Sinc rel.y, � � �� David K. Ze erstrom Technician Assistant Engineering Traffic Engineering . - DKZ:p� planner � cc: Alan Olson, Orono City � HENNEPIN COUNTY ' an¢qual opporfunity ¢mployer ; F=?;;ll ��i )" ::. C� i � � ��Sp�, /099 . - - ' i i' '� ;` i: :l' �� s I UNIVERSITY OF MINNESOTA I - � '_ , : '� V' �f' '� .:_ .. � ;_ , ., �`, ` �� — �� l�� , Freshv;a;er Eiciogical Instiiu; `'— • 71','IN CITIES � Col�ege ot Biolegical Sciences� �- � ._�.� t� ( ( � . I P.O. Box 100 L U �., ., ICounty Roads 15 and 19 j�,3 tiV J,sig �avarre, hlinnesota 55392 CITY, oF o�o.�� February 23, 1979 i�ir. Alan Ulson P.O. Boa 66 , Cr}�stal Bay, r� 55323 Dear I•1r'. Olson: Last summer scientists at the Gray Freshwater Biological Institute surveyed each lake basin of Lake 2�finnetonka. Stubbs Bay was shown to be the nost eutrophic bay in terms of turbidity, algal bloom, and nutrient content. In fact, it �oas c,�orse than Aalstead's Bay � '. on the upper lake. Since Stub_tZS Bay is small and very shallow, it is clear that a multiple dock for large power boats would make the situation worse in several respects: • 1) The movement of sediments in shallow areas will cause increased nutrient �,�ash-out from the sediments into the lake. � 2) The adjacent shoreline properties will be sealed in by a sediment bank causing stagnation especailly on the shore- line southeast of the project and causing residents problems � with filamentous algae, aquatic macrophytes, and foul odors � from stagnation. Also; these residents k*ill have to dredge their wa}� out eventually if they wish access to the lake. . , . , If the dock is designed for low horsepower boats, then of course . the above detrimental factors would not apply. ' urs sincerely, . � ' �� J M. Wood t � rector ' JPSW:j g � � ' . � ��'��/1 �� °I ��G. _�0 9� • T0: Alan P. Olson FROM: Michael P. Gaffron, Septic System Inspector DATE: February 2, 1979 : SUB�ECT: Stubbs Bay I�`ioratorium Area � Review of On-Site Sewage Treatm�nt Probletr:s , Capabilities , and Possible Alternatives A . STATUS OF EXISTING SYSTEI�IS ' The SBMA encompasses 82 houses, cottages , or other habitable buildings . Of these 82, approximately 40 were inspected by me during 1978. Ttao systems were found to be unquestionably non-conforming (outhouses) . The great majority of the balance were substandard either in location near wells or seasonal water table, or in size of drainfield. The remaining systems not yet inspected are scheduled for inspection in rsay, 1979. � - • TABLE 1 - STATUS OF DtISTING SYST�iS ' STR:ET 2'J,?SE h'lI.�ER OF HOUSFS ;IL"3ER I1:SPEGTD COh'FOR*iING SIJBSTAh'DARD NON-CONFOR'lING Tonkava Road 0 0 0 0 0 West Iake Street 13 1 1 - - Eaet Iake Street 9 9 � 0 7 2 Leaf Street 1 0 - - - Crestviev Avenue 14 13 - 13 - Tonica Avenue 9 9 0 9 0 Eileen Street 2 1 1 - - Bayside Raad ^ � 30 ' 1 1 - - Bedervood Raad 4 2 - 2 - 82 � 36 3 ' 31 2 Kriown non-conforming systems are circled in red on the attached map. Essentially all the East Lake Street houses are non-conforming according � to the Statewide Shoreland Management requirements. A 1974 study by McCombs-Knutson Associates analyzed ground and surface water samples from various locations in the Tonka Avenue-Crestview Avenue-East Lake Street area. Shallow groundwater samples. showed high concentrations of chloride and surfactants, indicating contamination, Surface water samples from� the unnamed tributary to Stubbs Bay had a high fecal • coliform count, indicating pollution from individual �on-site systems. The report recommended sanitary facilities be constructed. ��,�/i��T �iLi'� ' �QESOL, �o9y' •February 2, 1979 Stubbs Bay Moratorium Area . Review of On-Site Sewage Treatment Page 2 A . STATUS OF EXISTING SYSTEMS (CONT.) Fecent inspection of the northeast Stubbs Bay Area reveals minimal visible sewage eifluent discharging to the surface. However, complaints or seasonal problems of odors or discharges have been recorded. Pro erties located west of Stubbs Bay Road and north of B�icideSRo�ad P are generally located on large lots and have no known sep y problems . The concentration of homes and cottages on the northwest side of Stubbs Bay along West Lake Street will be inspected in the Spring of 1979 . � Conclusion - S�spected and know-n sySOSSible��roundaand surface watere � northeast Stubbs Bay Area, causing p g contamination. Possible reasons for this failure are: 1) tight clay soils which restrict water movement creating high water tables and • hence causing surface seepage and/or ground�'ater S�emsmlocated� inr 2) systems undersized for current usage, or 3) sy . high water table/flood plain areas . . . B. S�gBS gAy MARINA PROPERTY - INCLUDING EAST LAKE STREET HOUSES There are no existing houses on the marina property itself. - � � ' These 1) Soils - the major soil type is Lc .(sandy lake beaches) . � generally have a fast perc rate but water table is at a depth of 1 to 2 feet most of the year. Drainfields in beach sands have a high risk of groundwater contamination. Other soil types include Ha (Hamel Loam) with acceptable to poor perc rates and seasonal water table at depth of 1 to 2 feet, and Ma (Marsh) soils which are generally wet�• The observed water table at the marina site was 18" in suriIIner of 1978. � Each of these three soil types is classified as severely restrictive for drainfields under Orono code, due to high water tables . The City is under no obligation to approve any new drainfields on these soils. _ � . . ' . ��.�/i,si�- �i►�-.� �c'so �, /0>9 •February 2, 1979 . � Stubbs Bay rioratorium Area _ Review of On-Site Sewage Treatment . Page 3 � B, STUBES BAY I�iA RI.'�A PRO�ERTY - INCLUDING E.AST LAKE STREET HOUSES (CONT. ) 2) Flood Plain Reaulations - Drainfields a) Orono Flood Plain Ordinance (31. 831) prohibits septic systems and wells in or within 26�ncludes all�areas1beloa the1100syear conservation area , which i flood. Approximately half of the marina property is below _ the 100-year flood level, as are about half ofethrohibitedke - Street houses . In addition, septic syste�s ar p ` in all designated sheet flow areas of shallow flooding in which the rem3inder of the property is contained (Zone B) . b) p.CA WPC-40 recommended standards (not nandatory) prohibit drainfield installation in areas subj�ct to flooding or in flood plains delineated by local ordinances adoMinn.1Re • compliance with State Flood Plain Regulations ( g• NR 85-93) or where regional flood plain information is � available, except that wheses��semayfbe�allowed,11mits are _ known certain alternative y c) F1ood� Insurance Rate Maps - The 10-year flood elevation averages 0. 2 feet lower than the 100-year flood between Crestview and the Lake. (Flood Insurance Study) . 3) Suitability for System �pes � _ � a) Standa'rd System - Not Suitable - due to e1fl oding,table and possibl b) Mound System - Possibly Suitable on certain parts of the site where seasonal water table is at least t-,ao feet below the surface.'` Could be a � source of groundwater contamination during � flood periods. The site is marginal for a • �. mound system and determination ouddeenh to ' �seasonal water table becomes a j gm • decision. - ��',��rr >�:� � �ESa � � ---!—°-�'9- � February 2, 1979 Stubbs Bay Nloratorium Area Review of On-Site Sewage Treatment � Page 4 � B. STLTBBS BAY MARII�A PROPERTY - INCLUDING EAST L.AKE STREET HOUSES (CONT. ) c) Holding Tanks - The site is suitable for a holding tank system. In either Zones A or B, we �,�ou1d require a s�aled system with , check valves to prevent backflow or surface discharge of sewage if and when tariks were flooded. Anti-flotation stability of tanks would be of prime concern in either a holding tank or � mound situation. • ' d) Collector System - The site itself is suitable for collector system ,with treatment and disposal elsewhere. Proper sealing of collection lines would be necessary to prevent groundwater infiltration. � C MCCOMBS-KNUTSON REPORT ON SANITARY SEWERS FOR STUBBS BAY AREA, 1975 � . . This report proposed a collection system for Tonka-Crestview-East Lake . houses '(36 existing) which would be either tied into existing or proposed sewers to the east or would b e treated in a large drainfield on the Andromeda property southwest of Leaf Street and Bayside Roa d. Estimated Costs (1975) (1979 Assumed 10% Inflation/Yr.) � . -Collection System . , $97 ,400 � $142,600 -Disposal Alternative 1 � (Ptmmp to Interceptor) 62,300 91,200 � -Disposal Alternative 2 _ . (Drainfield) . 46,000 67,300 These cost estimate figures may be way off due to any of the following t reasons : � 1. Andromeda property soils in proposed drainfield area are only marginally suitable for a standard drainfield due to high water table. " 2, Andromeda property is not. now available at low cost of • $10,000/4 acre parcel as previously estimated. � 3. Orono-Long Lake Interceptor final location is not b etween , Old Crystal Bay Road and Willow Drive as assumed. This would ' _. now require longer lines to sewer plant for disposal. �,r,��i�r7 �� -s �'ESo�, _�o.9y � February 2, 1979 • Stubbs Bay tioratorzum Area � Review of On-Site Sewage Treatment • . Page 5 C. MCCO2�BS- KNUTSON REPORT ON SANITARY SEWERS FOR STUBBS BAY AREA, 1975_ � (CONT. ) The nearest potentially suitable drainfield site presently would be the . high land east of the Andromeda property. At this time, it is not known � whether this p�-operty could be acquired or at what price. I feel this proposal sti11 has merit, but costs would be sibnificantly higher than previously estimated, due to various factors . . D, CONCLUSIONS - M.4RII�A PROPERTY . 1. . Site Suitability " " a) The site is most suitable for a holding tank system which with proper design, installat�ion and maintenance would adequately • protect the public health by preventing possible ground or surface water contamination. b) Pending further investigation by parties unknown, the site. may be suitable for a mound system, which due to flooding hazard ' and fluctuating high water table in a sandy soil would have a - higher risk of potential ground or surface water contamination. ' c) The site is ,no.t suitable for a standard drainfield system. 2. Legal� Roadbloc.ks a) Orono code prohib its drainfield within 100-year flood plain zones , and within designated sheet flow areas . In effect, Orono code would prohibit any septic system or well on the property. z b) Pending determination of water table depths , Orono Code would prohibit a mound system on parts of the lot and sets standards for drainfield and tank location and construction. . c) State WPC-40 standards require minimum height of drainfield • - above 10-year flood elevation, and set standards for location . � and construction. . , . � �X�r�i� b�- � ��So L, /0 99 February 2, 1979 ' � Stubbs Bay Aioratorium Area Review of On-Site Sewage Treatment � Page 6 � E. RECO?�12•1E?�DATIONS 1. M�rina Froperty - A holding tank system s.hould be required for any new buildings . Orono Code would not allow a septic system, and due to flooding potcntial and depth to gro und water, a soil treatment system would have a high risk of . ground or surface water , contamination. 2, East Lake Street Properties - Although there is no easy procedure to show• that these systems are in fact causing pollution of ground . - or surface water, the potential for pollution is very great. I would suggest that these systems be abandoned and tanks be installed � or modified to �be used as holding tanks until such time that a " collector sewer system is extended to the area . • 3. Tonka Avenue-Crestview Avenue - Although many of the houses on these streets may have systems which are disposing of the effluent they receive, they may not b e treating it. Possible courses of action would be: a) Continue with present program of requiring visibly failing systems to be repaired with alternative systems if necessary. Continuously monitor ground water quality. � b) Install a collector system for off-site treatment and disposal. c) Require all systems to be replaced with alternative systems if documentation is shown that standard systems cannot be expected to function adequately in existing soil types . . s � • ' . . ��!y/I i 1�.(+� .� . � � ��L . � a 9 _,,,_ RE�ORT AI�TD RECO;`��fE]�TDATIONS TO THE ORO:�'0 CITY COUNCIL , FROM: ALAN P. OLSON, VILLAGE PLANNER REGARDING DE��ELOPMENT OF TNE STUBBS BAY MARII�A PROPERTY FOR REVIEW AT THE FEBRUARY 27 , 1979 PUBLIC HEARING This re�ort and my recommendations are based upon my professional education, experience and research including review of the following resources : � -Reports by Gunnar Isberg, City Planning Consultant . -Reports by Patchin Appraisals , Inc . -Co*.�nenLS by the Orono Planning Comnission and Planning Co�ru-nission Me�nbers � � -Comments by Stubbs Bay Area Residents � -Correnents by Dr. John Woods , Director, Gray Freshwater � Biological Institute -Policy Statements , Regulations and Repor�s by the Lake . Minnetonka Conservation District . -Publications and Regulations of the Minnehaha Creek Watershed District • -1'ublications and Regulations of the Minnesota Department of n�atural Resources -Publications and Regulations of the Minnesota Pollution Control Agency -Publications and Regulations of the Minnesota Health Department • -The 1971 "Harza Report" entitled "A Program for Preserving the � Quality of Lake Minnetonka" . � � ' -T'he 1977 Flood Insurance Study for the City- of Orono by the U.S . Department of Housing & Urban Development, Federal Insurance Adfniriistration � ' -The Comprehensive Plans , Ordinances, Resolutions , Policies and Public Records of the City of Orono -Comments and Reports by �ity Staff and Consultants -Applications, Comments and Proposals of James K. McCleary, Stubbs Bay Marina owner between 1973 and 1979 -Applications, Comments and Proposals of George R. Johnson, Stubbs Bay Marina Contract Purchaser, 1978/1979 g , -Personal involvement with the subject property and all applications and proposals �therefore since January, 1976, including numerous personal inspections of the property, • ' on land and from -the lake, since that time. � . • ' � - : � - , � �Xfr�� "�.�. - � �E,S'o� , �=9 I , RECOl✓i•�1�DATIOI� • Based upon- the ioregoing, I recommend to the City Council that the � property com:nonly known as Stubbs Bay �i�rina (legally described as Block 7 , Bayside Addition to Lake Minnetonka and Lots 21 and 22, Auditor' s Subdivision No. 203) be zoned and restricted for use as io ert District LR-lA, consistent One Family Lak eshore Residential p ' p Y� • with the zoning designation and actual use of all surrounding properties . I support �his recotr�nendation with my conclusion ,as a professional . planner that this zoning designation is � entirelyhensive�Plansland�h e goals , intents and purposes of the Ci�y s Compre that any other designation is inconsistent with those goals , intents and purposes . � I further reco�nend to the City Council that the future develop�nent � and use of the subject property be restricted and limited to those permitted and conditional uses specified as appropriate uses for the LR-lA zoning use district. I su�port this recomm�ndation with my conclusion as a professional planner that said permitted uses are indeed appropriate for this property given all neighborhood, topographic, geographic, ecological, �historic and legal restrictions imposed on the property by its very • location and intrinsic characteristics and that all other uses , including limited co�u�ercial use as a marina, are infact inappropriate for the property and the neighborhood. II. COURSE OF ACTION • The Council' s first responsibility is to accept the many reports and recommendations prepared on this subject and to hear the comments and recommendations 'of the property owners, neighbors and public at large. . � I recommend that after receipt of all facts nndfuPure zoninge City Council adopt a RESOLUTION OF INTENT regardi g development and use of this property. This resolution would be conceptual in nature, allowing staff an opportunity to include all � new information received at thetpublic hearing, to include exactly � all findings of the Council and to ensure that the final resolution be correct in detail prior to passage at the next meeting. I have attached a suggested draft of such a 'resolution. I recommend that the Council amend the 1974 Comprehensive Plan � consistent with the findings of this moratorium area study. � � � . . � �x��7- �_� -3 �(ESo�, �0 99 . � II. COUF.SE OF ACTION (Cont. ) . I recorr�end that the Council commence an action to rezone the subj ect property from B-2, Lakeshore Business District, to LR-lA, One Family Lakeshore Residential District. I reco�nend �hat the Cour�cil thereaiter deny the 1979 Commercial Dock Lic�nse application of George R. Johnson and that the Council : deny any and all a�plications for co;,�nercial development on the subject proper�y. I reco�nend that the Council deny conti�ued use oz the property for commercial purposes including on-land storage an d in-lake dock construction and that the Council institute condemnation procedures for the existing Lnsafe dock structures finding, as the Council - did in the �1978 Dock License Resolution No. 971, that such structures pose an im�-nediate hazard to public health and safety. I recommend that the Council (and staff) continue study of the . Stubbs Bay Moratorium Area in regard to the other issues of sewage , . treatment and disposal, flooding hazards , housing deterioration, crowding and the need for future public expenditures to alleviate • such conditions . Such study is intended to be completed prior to the end of the current Moratorium expiring on July 31, 1979, with the findings and conclusions of such studies to be incorporated � in the current review of the Comprehensive Plan of the City. III. SUGGESTED FINDINGS IN SUPPORT OF THIS RECOMMENDATION These findings are not considered to be a complete list but are only representative of the detailed findings which would be incorporated iri a final resolution of• the City Council. l. The Council confirms the findings and conclusions of the 1974 Comprehensive Guide Plan regarding the paramount objectives of • a) the preservation of the quality of Lake Minnetonka as a unique, yet fragile ecological and recreational asset and b) the maintenance of low-density rural land use policies as opposed to urban development which development �ften results in increased public and private costs while serving to benefit a limited number of developer/land owners to the ,detriment of the citizens in gerieral. _ • , •.2. The Council acknowledges that, while the findings and conclusions � of the 1974 Comprehensive Guide Plan were and still are valid, the designation of the subject property� for commercial use was in -� error and was urisupported by any logical planning or land use '� criteria which error shoul'd now be corrected as part of the overall Comprehensive Plan Review. - . . : �XNi.Bi7 ��'„ "� iP�so� . /o �y' III. SUGGESTED FINDII�GS IN SUPPORT OF THIS RECO;�]MEnDATION (Cont. ) � 3. T'he Council confirms the findings and conclusions of Resolution No. 938 regarding increased boat density on Lake Minnetonka . 4. The Council confii-ms the findings and conclusions �of Resolution • No. 943 regarding prior development, use and applications for use of the subject property. 5. The subject �roperty is not currently in use as a marina as permitted under B-2 zoning use district regulations . . 6. The subject property has in fact not previously been used to the � full extent requested, licensed and permitted by the City and the LMCD, which fact underscores the unwarranted increase ia � marina development in recent years, the physical limitations on the site and �he unsubstantiated need for any commercial - development of �he property. 7 . The existing zoning is obviously unplanned "spot" zoning. � 8. Residential zoning and use is completely compatible with alI adjacent and nearby zoning and land use. • • 9. New information available since 1974, including the Federal Flood Insurance study, increased local, state and federal knowledge _ concerning sewage treatment and disposal, and increased knowledge of lake ecology have become cause for new planning conclusi�ns regarding use of this property independent of any City initiated action. � ` - 10. Stubbs Bay is ,a shall,ow bay, otherwise completely residential � in character, and has been classified as a potentially critical bay for boating use. lI. Maxwell Bay, through which all boat traffic must pass to reach Stubbs� Bay, is already classified as a critical boat use bay. 12. The bay and the property are not physically suited for commercial marina development. � 13.. The City, the LMCD and the DNR would never permit a "new" marina ' on this site. T4. °The proposed development would be a "new" marina because no viable, � :- active marina exists today�. � • , ; . .. � � EX.S�/f�T �_ ��s - • ' �P�SD� _ /0 9,_,�' . III. SUGGESTED FII�TDINGS IN SUPFORT OF THIS RECOMMENDATION (Cont. ) 3� 15. . Allo�+Ting development of the property for marina use (or boat slip rental use) would adversely affect neighboring properties , � •properti�s abutting Maxwell and Stubbs Bays and the quality of Lake Minnetonka . Such adverse impact could be described as . a legal "nuisance" which is substantially unwarranted. The benefit to the property o-�aners would be at the expense of the neighboring owners and the public in general. 16. Use of the property for. residential purposes is compatible with the neighborhood, would not increase the demand for • public services and expenditures, and is physically compatible with the condition of the property and the condition of the bay. 17 . Because of the physical flood plain restrictions, any development ' of the property has special concerns or requirements but on the whole, residential impact appears to have more positive aspects and fewer (or the same) negative restrictions as would commercial . development. � 18. Any diminution in value which might occur because of the cessation of commercial activity can most likely be attributed to arbitrary . `'or at best speculative value associated with the previous non- : vesting licensed rights to some given number of boat docks constructed on and in the public waters. 19. The private right to unlimited commercial development of marginal .property, and the private exploitation of public waters is far outweighed by the most general public right to reasonable, compatible land use planning and general benefit. • 20. The continued zoning and use of the property for coIIUnercial ' purposes is not in the public interest. � t ' � . ''� . t