HomeMy WebLinkAboutmeeting packetAGENDA ITEM
Prepared By: mcc Reviewed By: LLO Approved By:
1. Purpose. This application is regarding after-the-fact variances relating to retaining walls installed
within a lakeside bluff.
2. MN§15.99 Application Deadline. The application was received on December 13, 2022 and
considered to be complete on February 3, 2023. The 60-Day review period has been extended and expires
on June 3, 2023.
3. Background/ Summary. In July of 2022, the timber lake slope walls, deck, and stair to the lake
were destroyed by fire. A building permit was issued to reconstruct the walls in-kind. During the
installation of the walls, staff observed that the construction expanded beyond the in-kind limitations in
the wall lengths and some of the wall locations. As a result, a Stop Work order was issued. Because the
work was halted prior to completion, on November 28th the owner requested and received permission
from the City Council to install a final wall at the top of the slope which their engineer determined to be
necessary to protect the integrity of the slope (Resolution No. 7315). Their engineer provided
documentation showing the slope failure was imminent and needed an emergency correction. The final
wall has not been installed, rather the applicant is now requesting approval to increase the height of the
top (6th) wall to reach the correct grade height rather than installing an additional wall.
4. Variance Description. The applicant is requesting after-the-fact setback variances to address the wall
footprint expansions in the bluff and lake yard. The lake stairs are an allowed improvement within the
75-foot setback and can be constructed with an administrative building permit. The change to the
configuration of the retaining walls, if approved, will likely impact the ability to fully recapture the
previous structural footprints and dimensions of the deck and shed.
5. Planning Commission Vote and Comment. On February 21, 2023, the Planning Commission held a
public hearing. Following the public hearing, the Planning Commission voted 4 to 1 (Libby dissent) on a
motion for approval of the requested after-the-fact variances subject to the following recommended
conditions:
a. Prior to Council review, the applicant shall provide an engineer’s opinion regarding the necessity
additional width of the installed walls as installed (attached as Exhibit D);
b. Submittal of a vegetative planting plan which will screen the walls from the lake (attached as
Exhibit E); and
c. Submittal of an as-built survey following completion of the walls and restoration of the grades.
6. Public Comment. Comments from the public were received and are attached as Exhibit G.
7. Staff Recommendation. Prior to the fire, there were existing retaining walls and improvements in
the lake yard. Replacement of the walls is essential due to the bluff and steep nature of the slope on the
subject property as well as the immediately adjacent neighboring properties. Further, removal of the pre-
existing burned wall materials and replacement of soil was required in order to assure the new walls
would be structurally stable to support the slope. The variance to permit the expanded retaining wall
structure within the bluff and 75-foot lake setback will help to maintain the existing slope and character of
the area.
Item No.: XX Date:
Item Description:
Presenter: Agenda
Section:
AGENDA ITEM
Prepared By: mcc Reviewed By: LLO Approved By:
Planning Staff recommends approval of the setback variances for the improvements as proposed. Staff
further recommends vegetative screening of the walls be implemented to screen the new walls from the
lake as much as feasible.
COUNCIL ACTION REQUESTED
Direct staff to draft an approval resolution including the following recommended conditions:
a. Submittal of a vegetative planting plan which will screen the walls from the lake; and
b. Submittal of an as-built survey following completion of the walls and restoration of the grades.
Exhibits
A. Plans
B. Survey – Revised
C. Hardcover Calculations - Revised
D. Engineer Letter
E. Screening Plan
F. Project Timeline
G. Draft PC Minutes 02/21/2023
H. Public Comment
I. PC Staff Report 02/21/2023
References
PC Exhibits 02/21/2023
A. Application & Narrative
B. Practical Difficulties Documentation Form
C. Previous “Existing Conditions” Survey
D. As-Built Survey
E. Hardcover Calculations
F. Plan Comparison – Staff Annotated
G. Photos
H. Engineer Opinion
I. City Council Minutes 11/28/2022
J. Council Memo 11/28/2022
K. Resolution No. 7315
L. Public Comment
M. Property Owners List
N. Plat Map
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ORIGINAL
WALL
DESIGN
952
954
948
I hereby certify that this plan, survey or report was prepared by
me or under my direct supervision and that I am a duly Licensed
Land Surveyor under the laws of the State of Minnesota.
By:
Minnesota License No.
Dated day of 2023.NO. DATE DESCRIPTION BY
SCALE: 1" = 'BEARING DATUM:
JOB NO.
1
2
3
REVISIONS*BUILDER TO VERIFY HOUSE DIMENSIONS, SEWER DEPTH AND FOUNDATION DEPTH.
*DRIVEWAYS ARE SHOWN FOR GRAPHIC PURPOSES ONLY. FINAL DRIVEWAY DESIGN
AND LOCATION TO BE DETERMINED BY CONTRACTOR.
*FINISHED GRADE ADJACENT TO HOME SHALL BE 0.5 FEET BELOW TOP OF BLOCK
EXCEPT AT DRIVEWAY AND PATIO.DRAWN BY:
CREW:
221329AS
CBS
CBS&BCK
10Assumed
January31st
CERTIFICATE OF SURVEY - WALL DETAIL ORIGINAL DESIGN
NORTH
DATE:
E. G. RUD & SONS, INC.
Professional Land SurveyorsEST. 1977
990 5th Ave SE, Suite 2Hutchinson, MN 55350
Tel. (320) 587-2025
www.egrud.com
~for~VALDES LAWN CARE
~of~ 2815 CASCO POINT ROAD, ORONO MN.
Part of Lot 120, SPRING PARK, Hennepin County, Minnesota.
DENOTES EXISTING RETAINING WALL
LEGEND
DENOTES IRON MONUMENT FOUND AS LABELED
DENOTES EXISTING SPOT ELEVATION
DENOTES EXISTING CONTOURS
X 952.36
010 10 205
BENCHMARK
BENCHMARK: MNDOT GSID STATION #11452
MNDOT NAME: JOHNSON MN053
ELEVATION = 938.909 NGVD29
Wall information labeled as T.W. (Top of
Wall) and B.W. (Bottom of Wall) are
averages of shots taken along the top
and bottom of the wall respectively.
Walls were constructed of 6in by 5in
timbers.
NOTES
2/3/2023
DENOTES ORIGINAL RETAINING WALL
52705
PAGE 2 OF 3
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CANTILEVER
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PROP DRIVE
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EXIST. RET.
WALL 23 SQFT
(TO BE
REMOVED)
EXIST. DRIVE
834 SQFT
(TO BE REMOVED)
(TO BE REMOVED)
REPLACE
CONC PATIO
108 SQFT
SEE SHEET 2&3
DETAIL OF WALLS
WINDOW
WELL
ORIGINAL
WALL
DESIGN
130 SQFT (IN R.O.W)
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AS-BUILT SURVEY
~for~VALDES LAWN CARE
~of~ 2815 CASCO POINT ROAD, ORONO MN.
I hereby certify that this plan, survey or report was prepared by
me or under my direct supervision and that I am a duly Licensed
Land Surveyor under the laws of the State of Minnesota.
By:
Minnesota License No.
Dated day of 2023.
Part of Lot 120, SPRING PARK, Hennepin County, Minnesota.
31st January
52705
NORTH
2/27/2023
NO. DATE DESCRIPTION BY
SCALE: 1" = '
DATUM: JOB NO.
REVISIONS
DRAWN BY:
CREW:
221329AS
CBS
CBS/BCK
30
Assumed
DATE: 1
2
3
E. G. RUD & SONS, INC.
Professional Land SurveyorsEST. 1977
990 5th Ave SE, Suite 2Hutchinson, MN 55350
Tel. (320) 587-2025
www.egrud.com
DENOTES RETAINING WALL
DENOTES FENCE
DENOTES OVERHEAD UTILITY
DENOTES SILT FENCE
DENOTES BUILDING SETBACK LINE
LEGEND
DENOTES IRON MONUMENT FOUND AS LABELED
DENOTES POWER POLE
DENOTES CONCRETE SURFACE
DENOTES BITUMINOUS SURFACE
DENOTES TELEPHONE PEDESTAL
DENOTES EXISTING SPOT ELEVATION
DENOTES MAILBOX
DENOTES ELECTRICAL BOX
DENOTES EXISTING CONTOURS
PIN No. 17-119-22-14-0008
Owner: City of X
Address: Unassigned
DENOTES AIR CONDITIONING UNIT
DENOTES SANITARY SEWER MANHOLE
X 952.36
DENOTES ADJACENT PARCEL OWNER INFORMATION
(PER HENNEPIN COUNTY TAX INFORMATION)
-Field survey was completed by
E.G. Rud and Sons, Inc. on
01/10/22.
-Bearings shown are on an
assumed datum.
-Parcel ID Number:
2011723320011.
-This survey was prepared
without the benefit of title work.
Additional easements,
restrictions and/or
encumbrances may exist other
than those shown hereon.
Survey subject to revision upon
receipt of a current title
commitment or an attorney's
title opinion.
-Due to field work being
completed during the winter
season there may be
improvements in addition to
those shown that were not
visible due to snow and ice
conditions characteristic of
Minnesota winters.
-Boundary work was not
completed as part of this
as-built survey any
monuments and boundaries
are for reference only.
NOTES
Per Certificate of Title No. 1541552
All that part of Lot 120, SPRING PARK, and
all the unplatted land and that portion of
Lake Shore Avenue Vacated, lying between
Lot 120 of SPRING PARK and the side lines of
said Lot projected to Lake Minnetonka, which
lies northwesterly of a line running parallel
with and five feet northwesterly from the
southeasterly line of said Lot and the
extension thereof.
Legal Description of Record
030 30 6015
EXISTING IMPERVIOUS
SURFACE CALCULATIONS
TOTAL LOT AREA .....................14,650± FT2
EXISTING HOUSE ........................ 1,343 FT2
EXISTING GARAGE ........................ 672 FT2
EXISTING DRIVEWAY (ON LOT) ...... 834 FT2
EXISTING CONC STAIRS .................. 23 FT2
EXISTING WOOD STAIRS ................. 29 FT2
EXISTING RET WALLS .................... 195 FT2
TOTAL IMPERVIOUS SURFACE ...... 3,096 FT2
PERCENT IMPERVIOUS ..................... 21.1%
BENCHMARK
BENCHMARK: MNDOT GSID STATION #11452
MNDOT NAME: JOHNSON MN053
ELEVATION = 938.909 NGVD29
PROP. IMPERVIOUS SURFACE
CALCULATIONS
TOTAL LOT AREA .....................14,650± FT2
EXISTING HOUSE ........................ 1,343 FT2
EX. RET WALL NEAR EX. GARAGE ..... 23 FT2 *
TIMBER BORDER (REMOVAL) .......... 32.5 FT2 *
PROPOSED GARAGE ....................... 710 FT2
PROPOSED WALK ............................ 74 FT2
PROPOSED STOOP ........................... 80 FT2
PROP. PATIO ................................. 108 FT2
PROP. DRIVEWAY .......................... 933 FT2
PROP. RETAINING WALLS STEPS .... 122.4 FT2
PROP. RET. WALL STEP LANDING ..... 12.3 FT2
PROP. DECK AND BOAT HOUSE ..... 118.8 FT2
EXISTING CONC STAIRS .................. 23 FT2
EXISTING RET WALLS ................. 165.0 FT2
EXCLUDED RET. WALL REMOVAL ..... 23 FT2
EXCLUDED TIMBER BORDER ........ 32.5 FT2
EXCL. RET. WALLS BY LAKE ........ 165.0 FT2
TOTAL IMPERVIOUS SURFACE ... 3,524.5 FT2
PERCENT IMPERVIOUS ................... 24.06%
PIN No. 2011723320012
Owner: C A & C D PRICE
Address: 2813 CASCO PT ROAD
PIN No. 2011723320010
Owner: WESLEY & BRENDA BYRNE
Address: 2817 CASCO PT ROAD
-This survey boundary was
calculated using a survey by
Gronberg & Associates Land
Surveying dated 5-18-22.
PAGE 1 OF 3
DENOTES ORIGINAL RETAINING WALL
3FEB23 REVISE IMPER. TABLE CBS
9FEB23 REVISE WIND. WELL DIMS CBS
27FEB23 REVISE PROP. IMP. TABLE CBS
February 24, 2023
(Revised March 6, 2023)
Josh Prust
Valdes Lawn Care & Snow Removal
Submitted by email: jprust@valdeslawn.com
RE: Timber Retaining Wall – Variance Review Comments
Project Location: 2815 Casco Point Road, Orono, Minnesota
Project No. 22-6589
Dear Mr. Prust:
At your request, this letter is being provided to address several comments and questions that came out of
the recent City of Orono Planning Commission meeting regarding the recently constructed timber
retaining walls at the above property. Revisions in this letter include clarifications to my conclusions and
recommendations.
The comments and questions relevant to my role in this project are as follows:
A. Your engineer should provide an opinion regarding the overall added width of the walls. The
opinion should address whether or not the additional width beyond the previously existing
walls is necessary to maintain stability of the slope, or can they be reduced?
B. Additionally, based on the conversation last night, I recommend that your engineer provide an
opinion on the two options for the top of the slope, adding the 7th wall, or increasing the
height of the 6th wall.
Regarding the first question about the additional length of wall that was added to the previously existing
walls, it is my professional opinion that the additional wall length added was necessary to maintain the
stability of the slope.
- Based on photos you provided of conditions present prior to the construction of the new
tiered timber wall system, there was already significant, on-going erosion and surface water
control issues on the adjacent properties.
- Numerous trees had exposed roots and the slope had areas of exposed soil.
- The decision by your company to increase the length of the walls have improved surface
water control and soil retention when compared to the previous walls.
- Once completed (i.e. walls finished and erosion control established), the new construction will
also have improved the grading along the adjacent property lines.
- The walls as they were designed and as they appear to have been built have a significant
design components to them. They are engineered to industry design standards and
incorporate the necessary tiebacks and deadmen for which extensive excavation is required.
For the second question about the options of adding a 7th wall versus increasing the height of the 6th wall,
it is my professional opinion that either option would be feasible and beneficial.
- The addition of a 7th wall was approved through an emergency repair exception by the City of
Orono on November 28, 2022.
- The emergency repair work was not able to be completed due to heavy snowfall and frozen
ground.
2815 Casco Point Road, Orono, Minnesota
February 24, 2023 (Rev. March 6, 2023)
Page | 2
- As an alternative, I prepared a design for the option to add height to the existing 6th wall to
you on December 9, 2022. This is also a good option to reduce the steepness of the slope at
the top of the wall.
- Adding height to the 6th wall versus building a 7th wall would be better as it could result in less
soil disturbance and excavation.
Refer to my previous letters and design reports for additional information. All previous terms and
conditions apply. Thank you.
Sincerely,
Paul Schimnowski, P.E.
MN #40126
I hereby certify that this plan, specification, or report was prepared
by me or under my direct supervision and that I am a duly Licensed
Professional Engineer under the laws of the State of Minnesota.
Paul Schimnowski, P.E.
Date: March 6, 2023 License #: 40126 (MN)
RAS22-000082
Permit for in-kind wall re-
placement
Applied for on August 24,
2022
Issued on Sept 30, 2022
STOP WORK ORDER
issued on
October 28, 2022
City Council request for
Emergency Slope Repair
granted on
November 28, 2022
LA22-000036
Variance for the home
September 2022 PC (PC denial
recommendation)
October 2022 Council (denial)
October 17 Variance withdrawn
RAS22-000126
Building Permit (for conforming
changes to the home)
Issued October 10, 2022
LA22-000068
December 12, 2022
ATF Variance for approval of
Retaining Walls beyond the
in-kind footprint
Fire
July 22, 2022
TODAY
MINUTES OF THE
ORONO PLANNING COMMISSION
February 21, 2023
6:00 o’clock p.m.
_____________________________________________________________________________________
Page 1 of 12
ROLL CALL
The Orono Planning Commission met on the above-mentioned date with the following members present:
Chair Mark McCutcheon, Commissioners Scott Kirchner, Chris Bollis, Dennis Libby, Bob Erickson.
Commissioners Matt Gettman and Jon Ressler were absent. Representing Staff were Community
Development Director Laura Oakden, City Planner Melanie Curtis, and City Planner Natalie Nye.
Chair McCutcheon called the meeting to order at 6:00 p.m., followed by the Pledge of Allegiance.
APPROVAL OF AGENDA
Kirschner moved, Bollis seconded, to approve the Agenda. VOTE: Ayes 5, Nays 0.
APPROVAL OF PLANNING COMMISSION MEETING MINUTES OF JANUARY 17, 2023
Libby moved, Kirchner seconded, to approve the minutes of the Orono Planning Commission
meeting of January 17, 2023. VOTE: Ayes 5, Nays 0.
PUBLIC HEARINGS
1. LA22-000068 VALDES LAWN CARE AND SNOW REMOVAL, LLC, 2815 CASCO
POINT ROAD, REQUESTS AN AFTER-THE-FACT 75-FOOT LAKE SETBACK
VARIANCE FOR RETAINING WALLS.
City Planner Curtis reported that in July of 2022, the timber lake slope walls, deck and stairs to the lake at
this address were destroyed by fire. A building permit was issued to reconstruct the walls in-kind. During
the installation of the wall, staff observed that the construction had expanded beyond the “in-kind”
limitations. As a result, a stop-work order was issued. The applicant’s engineer provided documentation
showing slope failure was imminent and needed an emergency correction. Because the work was halted
prior to construction, on Nov. 28 the City Council granted approval to install a final wall at the top of the
slope in order to protect the integrity of the slope upon spring thaw. That wall has not been installed. The
applicant is requesting to add 1.7 feet to the top wall that's existing rather than constructing a new
additional wall on the top of the slope, which would better accommodate the final grades and the lake
access stair. All the improvements are within the 75-foot setback from the lake and within the bluff. The
newly-constructed timber walls are situated generally where the previously existing walls were located.
The new walls are not considered an “in-kind” replacement as the footprint of some of the walls extend
closer to the neighboring properties, are in different configurations and are in different locations than the
previously existing walls. The owner is requesting an after-the-fact variance to address the wall footprint
expansions in the bluff and lake yard. A lake stair is permitted within the 75-foot setback and within the
bluff. The deck walkway and shed are not permitted but are able to be reconstructed in-kind. The property
owners can apply for a building permit to rebuild their decks and shed and the stairs as long as the
existing parameters are not exceeded. Because the new walls were installed in a slightly different
placement, size and configuration variances are required. The applicant identified the slope and existing
conditions as practical difficulty supporting the requested variances. They have provided the
documentation with the practical difficulty worksheet in your packets. They are here tonight as well. Staff
finds there are difficulties in the topography and challenges brought on by the fire which may support the
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variances for the expanded retaining walls. Staff supports setback variances for the new wall footprint as
long as the change does not adversely impact neighboring properties and the slope stability on those
properties. The applicant provided a letter from their engineer with an opinion regarding the stability of
the slope on the neighboring properties and it was included in your packet as Exhibit H along with
comments from the public. Staff recommends approval of the setback variances for the wall
improvements as proposed and as they are constructed. Staff does not recommended approval of any
walls which encroach into the neighboring properties, and the applicant should be asked to confirm that
the work was not conducted beyond the property lines. If the applicant needs to construct improvements
on the neighboring properties, they should be providing consent for that work, and we should include that
in the permit. Staff further recommends the vegetative screening of the walls be implemented to screen
the new walls from the lake as much as feasible.
Libby asked if the destroyed walls that had to be removed had been permitted.
Curtis responded there is no record of a permit, but they have existed for quite some time.
McCutcheon asked to clarify if the last retaining wall is yet to be built on the very top.
Curtis explained the upper wall is constructed, but the applicant has decided they don't need to construct
an additional wall. They would like to make that wall 1.7 feet taller to accommodate the grade.
Josh Prust who works for Valdes Lawn Care and Snow and resides at 16016 Hidden Valley Road in
Minnetonka and Joe Valdes of Hastings, MN represented the applicant.
Mr. Valdes explained his company was hired to replace the burned-out retaining walls and stairs. His
recommendation would have been for a boulder wall because of the difficulty with constructing a timber
wall but that would have exceeded the allowed hard cover. Some of the problems included reduced
vegetation because of trees that were burned in the fire and the discovery of rotting timbers behind the
front timber walls. He said they tried to minimize the damage to the bluff and achieve good drainage
behind every single wall so there would not be any erosion going into the lake. He said all this required
more excavation than typical. The slope is too big and there is no way to control the bank as there is no
vegetation. The snow this year will cause the soil to wash out in the spring more than usual. There's
nothing holding the bank anymore. He said they were under a time crunch because it was November. His
workers were digging by hand with pics to avoid damaging existing roots. We have to do anything in our
power to protect the bluff and any vegetation. We had to work from the top to the bottom. We cannot
work from the lake because there is no space to have any machine there. Work was halted in November
and the Planning Commission did not have a December meeting. So I apologize that we did what we did.
There is no way to be able to do this in the kind of winter we are having this year.
McCutcheon asked about the neighbor’s retaining walls. This is a big project, I can see that. And when I
look at it, and I see all the neighbors, it's almost like you kind of work together? Because it seems like
every has the same problem. Everybody has a need for this to be successful. He asked Valdes if what he
has built and is proposing will hold.
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Mr. Valdes said he wouldn’t want to say 100% but is 90% sure the project will hold the bank.
Mr. Prust added one of the requested items that came from the last meeting they were at was that they
have their engineer do an analysis of the neighboring properties as much as possible and get a survey with
topographical to satisfy that those banks are stable, and they're not going to go anywhere. He said the
neighboring walls in addition still have vegetation on them. So they still have their trees and all their
plants and stuff that didn't get burned up. All that root structure is still helping to hold their slopes up.
Libby asked if the engineering plans articulated that they needed to remove portions of the bluff to
remedy the erosion.
Mr. Valdes said the reason they had to remove soil was to backfill it with drain rock behind the timbers.
The engineering plan called for 18 inches of drain rock behind the timber walls.
Libby said he has worked in a couple of projects like this. So I'm just trying to get a scope of
understanding how you approach this from an engineering and then a positive outcome. If you're
removing portions of the bluff, wouldn't that naturally then increase the pitch of the bluff so that there's
less soil to work with and then you have more of a grade down towards the lake shore?
Mr. Valdes said they were not taking away from the height of the bluff but creating space to backfill with
drain rock.
Chair McCutcheon opened the public hearing at 6:20 p.m.
Patty Yorks, 2825 Casco Point Road, said she had hoped to show photos of what was there previously,
what is there now and what other neighbors have done to mitigate the bluff. I'm also on a bluff, and
everybody else here, another 10 people, are also on this bluff. We all are expressing major, major
concern. It wasn't necessary to do this digging. Everybody along the bluff has done work within your City
ordinances and complied. They've done things by hand. They've been very careful and mindful of all the
vegetation on the on the bluff. And these people just came in and bulldozed everything and removed the
dirt. There was a big road down to the bottom of the bank. It was just an absolute travesty of how they
approached this and little or no regard for the lake or the environment. And we have two engineers that
live right in that notification area that you sent out. They're just amazed at what the City is allowing them
to do, because they do not believe it's built structurally appropriately and engineered appropriately. And,
to my knowledge, the engineer that they have has not signed off on this and standing behind the
engineering. I just am concerned that this is not going to hold and the City is going to have some liability
on this because they're approving something that is not accurate.
McCutcheon said he doesn’t pretend to know the history of this project, but obviously you do as a
neighbor. But normally when these things are in construction it has to get ugly before it gets better. In
hearing the applicant explain the process, it sounds like when they were removing the old wall with the
rotted timber that the only solution was to dig it out and fix it.
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Ms. Yorks responded it's a problem that they caused themselves. There were things that had to be
corrected, probably, but not to this extent. She said she had photos which Curtis did not have available.
McCutcheon invited her to pass her phone around the table.
Curtis clarified that the applicant’s engineer has approved plans as designed. We don't approve their
engineering, their civil engineer takes the responsibility by stamping the plans.
Ms. Yorks said the work is too egregious. And then after-the-fact, I mean, come on, really? The whole
thing is just egregious. I get that it was an emergency.
McCutcheon said it's one of those things with the construction season, and I'm not trying to make
excuses, but I'm just trying to be logical about it. If you start pulling back layers of the onion and you're
holding that much earth back, you do have to act with a sense of urgency. Was it handled the best way?
Obviously, we would like them to go to City first, which they did. They came in -- well, after-the-fact, of
course, but they did try to make it right.
Margaret Martin, 2821 Casco Point Road. I sent in this information earlier in an email and it is from a
member of the family who is a civil engineer, a geotech. You have all that information and I won't go
through all of the points, but I will just reiterate a couple of the things that he emphasized. He indicated
that the wall does not appear to be replaced in-kind and therefore should fall under scrutiny of new
construction. It increases impervious surfaces within the buffer, increases discharge to the lake and does
not appear that anything has been done to naturalize the shoreline, and I understand timeframe with
winter etc., that that can't be addressed immediately. Surface drainage pads have not been identified. Tree
Removal completed prior to plan approval has been discussed. The damage caused by this disturbance
may put neighboring properties at risk in the future and this has been addressed. So again, you have a
printed version and this is from an engineer who is very knowledgeable. But moreover, we need to
consider the fact that that allowing things to go through sets precedents that should not be given in our
City so that people think they can get away with it and do things not according to how they're set up.
These rules were set up by our City and should be complied with.
Commissioners took some time to review the photos that Ms. Worth and Curtis had been able to access.
Tyler Warnke, 2147 Valley View Place, St. Paul said he was the equipment operator on the shop. I just
want to reiterate that I went off what the plans were. I've never seen a slope this steep. And in order to get
to the bottom, I had to dig around that. They said it was a road. It did look like a road but I can't reach all
the way down to the bottom to pull out the timbers. So we're pulling up timbers going down as we go.
Some of them are eight feet back and I have to dig those out. I'm not going to leave those in the ground,
because when I construct the new walls, I have to go back. I‘ve got to do the tie back. So it's different
than just digging a hole. I’ve got to put a six foot to eight foot chunk on the back to nail the tie back to, to
hold the wall., so all that has to be dug out. There's different aspects that made that difficult. Up on the top
there's a tree and the neighbors were adamant about leaving the tree. So we worked around that and did
what we could to keep it. And that's why there's a little adjustment over on that side just to keep and not
destroy the roots on that tree. But it's just it's a big job, no doubt about it. A lot of the stuff had to be dug
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back to get those tie backs. The engineer plans came to that step. The neighbor on the west walked me
over to his yard and showed me he had his redone and he had a huge washout. I stand by what we built
and I believe it will hold back that hill.
Kirchner asked if as the equipment operator, did he think this could have been done as handwork instead
of equipment operation?
Mr. Warnke said he thinks it would have been a year-long project. A lot of that stuff was hard back in
there. With the pick axe they spent 10 hours on one little section trying to get the tie backs back so we
didn't take that bluff out on the on the east side up on top. Everything I've seen it's done with heavy
equipment.
Libby asked if he was involved in any other excavations or moving soil there other than directly affecting
the washout and in the wall?
Mr. Warnke said the only removal was to put the walls in and take out the existing walls, because all the
existing walls were burned and had to come out. Then I had to dig the soil back to get the old original tie
backs. The old original tie backs had big concrete, like a pail of concrete, and that was chained. We did
nothing around the house. Everything was on the lakeshore.
Commissioners asked about the extent of the damage caused by the fire. Curtis showed photos taken right
after the fire.
Carol Price, 2813 Casco which is the west side property adjacent to this one. I will agree with everyone
that this has been a mess. The fire is not responsible. It was unfortunate that happened to the owner.
They're just trying to recoup the bluff. I agree that the contractor, once he got in there, did see the work
involved and he did try to save the trees. But again, there was a mess of a mound of dirt that was
excavated from the bluff. And all that excavated dirt had to come by our house because we gave them
permission. And so it was very difficult for us. They took away multiple dump trucks of dirt and brought
in the stones to backfill those walls. So I did put in written comments in the packet as I saw it as of
Friday. What is different is I had no idea that the wall construction now has changed from seven walls to
six walls. And now the sixth wall is going to be taller. This is the first I've heard of it. All of my
comments were based on the original design of seven tiered walls. And in late October, a stop order was
issued because they were building this not according to the in-kind plan. It was almost done. They were in
the process of prepping for the seventh wall. So they went to the City Council to express an emergency
request to put in that seventh wall and it was granted in early November. At the time of the stop order, the
contractor very rightly put in erosion burlap, they secured the bluff as it was built, everything was
rounded. They took away all the equipment because they didn't know if this was going to be approved.
The emergency order was based on the engineering request that this wall was in imminent danger of
collapse if they did not finish that seventh tier. And after the permission was given to build the seventh
wall, no one came back. That is my concern now is that bluff, it has the seven tiers. And that seventh wall
isn't there. The Bluff now makes a half bowl; it's not straight anymore. So that half bowl really requires
that seventh wall. The contractor put in the side walls to compensate for the neighbors. Those sidewalls
are needed for this place where the seventh tier is supposed to be. I agree it should be there. If they make
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the claim that this is an imminent need for the bluff, it should have been built. Again, this is the first time
I've heard about the sixth wall just coming up a little bit. I don't know if that's going to keep the
neighbor's property from falling because they have built this round and curve tiering effect. I know there
is a concern about hardcover. But that hardcover came in less than the previous old wall. So there needs
to be some scrutiny here. I don't think we should tear down this wall. I am an engineer. I'm data driven.
I'm detail-oriented. You guys need to see what this looked like. You need to see the photos of how this
was constructed. I saw the construction. I'm there every day. The contractor did a good job. I think he
really reacted to what he saw. And he's trying to do a good job. I just want to make sure that whatever is
approved in the end, this bluff isn't going to fail, I'm not going to be affected. It's nobody's fault that the
bluff burned, but we’ve got to deal with it.
McCutcheon said seeing the pictures he would be concerned as well but he is also looking at the
challenges that the contractor had. I appreciate all the feedback because it's a drastic change to what the
neighborhood has had. He asked if we are seeing a lot of erosion because the disadvantages of this with
the fire? So you have no root system to establish that integrity and so they're kind of in a bad spot? He
noted people driving by in boats would see nice trees and then nothing but a huge retaining wall system
that doesn't fit the character of the neighborhood. Yet the neighbors think it should be bigger because they
are really concerned about it.
Ms. Price reiterated that she does not have enough information to make a decision at this point. This is too
much of a surprise to me. There is a bluff line there and the neighbors are on the bluff line. The sloping
does vary as you're going from west to east. The actual slope of the whole land of that Peninsula is
flowing downward. The slopes on this end, they're steep. And as you as that landmass gets lower, those
slopes are more gentle. But this particular build did scoop out a hole in that natural line of the bluff. And
part of that scoop out is it's affecting the neighbors. The contractor was stopped before the seventh wall
was almost finished, so that dirt is loose, there's nothing to hold it. I don't think making the sixth wall a
foot taller compensates for what's there now. I'd like to see some plans.
Bollis said he thinks on the engineering report for that additional height on that wall, it shows that the
grade’s going to be improved to the top of that wall. So what we're looking at right there, that's the sixth
wall. That would be 1.7 feet higher. And this bowl, I’m assuming would be cut and filled to the top of
that.
Ms. Price said she hasn't seen any of the new updates and would not be in favor of seeing it approved
without the seventh wall. I have no data to make an evaluation. I would just like the board to look at the
data. It looks massive. It's not in character for the rest of the neighbors or Casco Point or the bluffs. When
you backfill those walls, it's back filled and compacted with dirt and stone. How do you get something to
grow in there? You don't, you might get small plants and things, but there won't ever be a tree back there
again, so you've changed it forever.
Charles Price, 2813 Casco Point Road, noted all the pictures have been from the water. The engineer who
designed the walls made it crystal clear, you can't let any water infiltrate these walls up on the top side.
I've never heard a plan for how the water is going to get around this wall, the water that runs across the
lot. That needs to be clarified somewhere. Price also said the exhibits don’t correctly represent the old
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bluff line top. He said the bluff has been moved back 22 feet. That's part of the reason why we're in a
variance situation now, I guess, because it wasn't built in accordance with plans. There's a mistake there. I
don't know exactly what the significance of that is. And I actually want to compliment Tyler, Joe, you
guys did a good job on the walls. Good job. They worked hard. Tyler was up here explaining. He worked
with us, he worked with the neighbors on the other side. So I don't necessarily want to have it torn down
and start over. And that's up to you guys to figure out.
The Commissioners, applicants and neighbors continued to review photos and drawings.
Curtis pointed out that the applicant is not asking for approval on these issues. We're going back and forth
about what was there and what what's there now but we know it's not what was there before.
Mr. Valdes said to go eight feet high with the wall, you have to go eight feet back. We have property
lines, we have neighbors. We had tie backs going from the first wall all the way to the second wall. So all
the walls basically want to structure all the way from the bottom to the top of the wall. That way we know
how to approach anybody’s property, and we'd be able to save histories. We actually did more work to be
able to make sure that we're stable enough. So if you have one wall, all the way to the top has got to tie
and nail into each other and the whole thing is one structure all the way. This is why that is not right. He
said some of the structure now in place is temporary because the wall is not finished. They addressed the
drainage on the east end by putting in drain tiles in the corner that will drain the whole yard. We have the
pipes ready behind the walls to hook up but the job is not complete.
McCutcheon asked about drainage and the current opinion of the engineer for the project.
Mr. Valdes said water would go to the corner where the fence used to be where there was an old catch
basin and some tires. Those have been removed and everything is now buried. He said this winter there
has been 70 inches of snow. When it melts, the water will go west to east where they have put in a berm.
The water will not go to any neighbor's property. He said the retaining walls are being designed so it will
not have to have a railing.
Chair McCutcheon closed the public hearing at 7:02 p.m.
McCutcheon opened commission discussion saying it's a pretty significant build. And he understands the
challenges with burning down trees, the root system failing, and yet needing to hold all that soil back. He
also said he can understand the concern from the neighbors as it’s different in character from the rest of
the area. But looking at it, if you tore it down and rebuilt it, I'm thinking you'd look pretty similar because
of all the earth that was removed. I'd like to hear the comments of the commission here on what can be
done next steps, because we can't change the past. So let's try to keep the conversation on what can be
done going forward. Do we let them finish it with the proposed changes? Or does anybody have an
opinion on some kind of other plan or approach towards this?
Kirchner said his initial frustration is that in-kind walls were approved and we didn't land there. Due to
the dirt that was removed. today we can't go back and do X, Y and Z. And therefore, by the applicant and
the homeowner circumventing the process, they removed that ability for neighbors, City staff, and this
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commission as well as the City Council to have a review process of how this looks. We maybe can't go
back based on the amount of dirt that was removed. I’m fairly certain that what we're looking at there
from the original walls to what's new are not in-kind. They're a different footprint. They're different
angles and different places on the hillside. So my initial thought is also the precedents that we set to then
go back and approve and after-the-fact variance, because I worry does that say ‘go ahead and do what you
want?’ And then we're going to have to say, ‘Oh, well, we're stuck with it now’. I worry about the
precedents and what that sets for our City. We've got a lot of bluff and hillside to protect around the lake
and that might be a slippery slope, pardon the pun.
Bollis said he definitely has the same concerns as Commissioner Kirschner. Typically, when you're doing
a project like this, if you can't build in-kind for whatever reason, it's great to come back here. But looking
at it as a situation where it's imminent that there's going to be a problem, I question whether it could have
even been built in-kind. We don't know what those existing walls were. We don't know if they even met
code as far as what the new walls have to meet and are engineered by. So all the information I have, I feel
like the new system is definitely engineered, signed off on. We don't even know what the old system was.
I feel like the contractor did a good job dealing with the problem that they had there. It's just unfortunate
it didn't come up here. Or it wasn't able to come here because I wouldn't have wanted to stop and then get
halfway through the winter and not be able to do anything. And then we'd have a huge problem this
spring, if that were the case. So I think it's probably fortunate that it got built to the extent that that it did. I
think either way, if the engineer says it works, if there's a seventh wall or just raising that sixth wall, I'm
fine with the proposed raising the sixth wall and doing the appropriate grading. I guess the question for
staff would be I don't know if that would require a railing.
Curtis said the City’s building official could be asked to comment on that and clarify with the applicant if
a railing is required by state code before it goes to the City Council.
Libby said he tends to favor several remarks that Commissioner Kirschner mentioned. One is that I think
it was a poorly-conceived plan to start with; it did not get enough review. And I think that once you get a
stop order, it's a flag. Not to defend the City Council, but when you have an approval, and then
something different than what was approved is built or constructed with very little interaction with the
City engineering, it's a formula for failure. Because for one thing, you created a slope that didn't exist
before. And in the spirit of conservation and preservation, not only within the scope of our empirical
bluffs ordinance, you have the protection of the lake itself. And I think that those were not centrally
focused on how the engineer designed this with very little consulting or approval in that plan and design
and engineering with the City. So trying to remove a little fault from the City, I defer to Mrs. Price’s very
sage wisdom as a credentialed individual looking at this kind of from the outside, that there was too little
analysis to really look to not have the disaster that I think this really is. I think that what they really need
to do is recreate the bluff wall at the top that they previously had. First of all, you could have a straight
fence. It would be helpful, but no one knows that, not even the contractors, who know how to operate the
machines and move the dirt in the soil and bring the portions of the wall out that needed to be removed.
There really are not enough statistical solid metrics to really determine how this really should have been
done and how to fix it. I'm not really in favor of approving any of this. Even with the staff suggestion, the
two suggestions that I made, I think really should go back to a planning stage with the original engineer
who should have done more due diligence with the City engineer, so they know that as they move
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forward, they're operating within the structure and the constructs of our Orono City bluff ordinance,
which is very focused on preservation and conservation. I don't see much of that here. The operators did
what they were told. They worked from a plan, but I think was a very faulty plan to start with.
Erickson said he felt Commissioner Libby’s comments are well said. What stands out for me is that the
staff does not recommend approval of any walls which encroach into neighboring properties. He quoted
the staff recommendation. The issue here is was there encroachment? And if there was then I concur that
the neighboring property owners should be involved in the process with their consent. I would add that to
the concerns that Commissioner Kirschner and Commissioner Libby have raised.
McCutcheon said what we have now is holding back earth. What would we give them for guidance if we
did have them go back to planning stage. Do you have any thoughts on that?
Libby said his only suggestion would be to put that top bluff wall back. I'm not an engineer, but I have
probably eight years of working with the bluff ordinance. I also have some on-site experience on Tanager
Lake, in green trees, were in almost identical circumstances existed, except for the fire. And that wall had
to be replaced four times in the course of seven years because we had a number of 100-year rain events. A
very reputable, well-known designer of that sort of construction, and reputable veteran construction
operators, maybe like yourself, came in and thought it would work. But the engineering lacked what it
needed to stabilize it. Like Mrs. Price mentioned -- numbers, metrics, calculations, design and
engineering. I don't think that there was enough of it here. One solution would be to not have created a
new slope, if that could be corrected. And once again, I think that top left wall needs to be there.
Kirchner asked had this come before us as a blank slate, what would some of the feedback have been?
The contractor stated that he initially had proposed a boulder wall. I don't know if that would have
allowed for less intrusion from east to west across the front of the bluff. I believe that the issue was
hardcover.
Curtis clarified the issue was it wasn't in-kind, and they couldn't do it with a building permit at that time. I
think it was a time issue. Retaining walls are listed as hardcover but they don't count against your
property’s hardcover total. She added that the engineers spent a great deal of time on the design.
Bollis said he had been concerned that there wasn't enough engineering, but looking through there (the
packet information), there's quite a bit.
Curtis said the City stopped the work on the project, then we asked that the engineer give us his opinion
on what was constructed. And did they follow the engineering of his initial design. With the extended
wall now, adding 10 more feet to a length of wall isn't going to necessarily change his metrics to use the
same word. But he did confirm that and has done considerable amount of work. He's not here tonight, but
I've spoken with him and he was at the council meeting. So he has thoroughly reviewed the project.
McCutchen said he felt he was looking at a situation where it's structurally sound. It's engineering
approved, except for the one last modification with the staff’s recommendation of adding vegetation and
making sure that the wall doesn't encroach on neighbor's properties. We definitely would need to verify
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that. I don't want to re-engineer it here. But I’m just still not clear on next steps. I don't know how you
make it structurally sound without making it be as intrusive as it is, because you have to hold back that
earth. I do see the challenges of trying to build a retaining wall with no structure and burned timbers and
trying to excavate and finding more dead, rotted timbers. Did they approach it the right way? My guess,
even if they did it the right way, they would have started digging into it and found they had to come back.
It's a very challenging project. And so I'm trying to figure out, is this a workable solution now where
we're pretty close? Could they add some vegetation? Making sure that that doesn't encroach? Is this
something that we can move forwards with? Or is it something that we need to start over with?
Kirchner asked if it was necessary to have gone as wide with the wall from east to west.
Bollis said you had a bluff previously, and a combination of a wall system, but there was also vegetation
holding that. That vegetation is gone. There has to be something that's going to hold that up, which I think
is the reason why this wall expanded in the spots that it did. I know they're supposed to build in-kind, and
you look at that overlay, at first, it does not look like it's in-kind, but realistically, it's actually less
hardcover than it was. And it's essentially doing the same thing. It's off by a couple feet here and there,
but I don't know how you would do it any differently with the constraints of working on a steep slope like
that, with not touching any vegetation on the sides on the neighbor lots. To tear it down I think would be
worse. That'd be a giant step backwards and you'd end up with something very similar. Essentially, the
new wall is very similar to what was there. It's just you couldn't see it because you had a storage shed,
walls and stairs and bushes. I doubt there was any drainage behind the old wall. I don't see any outlets for
any drain tile (in the photos), like the new wall has.
Kirchner said as much as I do have frustration with how this was approached and how we landed here
today, I also would firmly agree that are we going to do more damage by denying this and saying start
over and the impact that would have on the bluff to try this again. I don't like this one all day long. But
I'm concerned that we could potentially do more harm than good by saying go back to the drawing board.
McCutcheon agreed it's a no-win situation for everybody involved. This slope is ridiculous. It's one of the
steeper ones I've seen. The newer construction retaining walls are pretty obvious because they're built to
code. Maybe there could have been a subtle change to make it less obvious but I think at the end it would
still look like it does today. I tend to say move forward with it with making sure that those items staff
mentioned are addressed.
Libby it's very rare that he disagrees with the staff. But I think that this is an ill-fated project that actually
was constructed and built different enough from what the council approved that it deserved the stop order.
And except for the couple suggestions that I made that would actually bring it back to some of the
original construction, I don't think it's redeemable. The original wall burned which is unfortunate. The
way it was constructed is very different than what the City approved. The Council did not approve the
design that got built.
Curtis said I just want to clarify, they applied for a building permit. She explained the plan review was
part of the building permit process. The Council saw an emergency slope repair to finish the top. That's
basically all the council saw.
MINUTES OF THE
ORONO PLANNING COMMISSION
February 21, 2023
6:00 o’clock p.m.
_____________________________________________________________________________________
Page 11 of 12
Bollis said I think it comes back to what was here previously was a seven-tiered timber wall that we don't
know how it was engineered, and it was replaced with what is currently a six-tiered timber wall that we
know how its engineered. That's essentially in-kind. It’s a tiered wall that was built to the engineering
specs which are pretty detailed, which I have to believe are much better than what was existing. I agree
with everybody up here. I don't think the process is right at all. But I think we're going major steps
backwards if this has to be removed, I’m saying functionally this is what was there and if they wanted
something different, obviously, they would have had to go through a different process. The other piece is
that seventh wall. If they built that, then it would be more in-kind to what was there. But that's not in front
of us right now. So that we have to vote on is what's here.
Erickson asked if the commission was headed towards a tabling motion.
McCutcheon said he'd take any motion at this point to get going. I think we have two of us that have
spoken out in favor that we've got enough here where I think the existing this retaining system is
workable.
Bollis said we're no longer approving in-kind, we're approving the variance that's in front of us
Curtis said yes, setback variances for the new walls.
Bollis said he was ready to move to approve the variance but he thinks the seventh wall should be built
that was already approved by the City Council.
Ms. Curtis said she would prefer we not design the wall. The Council approved the emergency repair as
an emergency repair, not as a ‘you have to build the seventh wall’. Their alternate to the seventh wall is to
increase the height of that sixth wall. She clarified the design had been approved by the applicant’s
engineer. We don’t approve engineering.
McCutcheon said a licensed structural engineer in the state of Minnesota put forth a design that's going to
work in his eyes. And that's pretty good for me. He said the commission might be splitting hairs to require
the seventh wall.
Bollis said his thought is that we've got a split commission right now. And maybe that seventh wall gets it
more to what was in-kind previously. In my mind that gets it closer to what it was supposed to be. And it
makes essentially the top of that slope what it used to be. But I'm not going to redesign the project, so
we’ve got to vote with what's in front of us. So would you rather us move to deny? Because it's missing
that seventh wall?
Kirchner said he felt the commission didn’t have enough answers because the engineer was not present.
He suggested making a motion with the recommendation that the engineer provide additional feedback
on the width of the wall.
MINUTES OF THE
ORONO PLANNING COMMISSION
February 21, 2023
6:00 o’clock p.m.
_____________________________________________________________________________________
Page 12 of 12
Bollis clarified his motion to approve the variance as applied with the addition of the suggestion from
Kirchner that a licensed civil engineer provide additional feedback specifically to the east to west span of
the walls.
Erickson asked to add the staff recommendations that it be ensured the wall is not encroaching on the
neighbors or is doing so with their permission.
Bollis accepted that amendment to the motion.
Libby said he would like to see additional scrutiny on completion.
Curtis verified the City will inspect it when it's completed.
Bollis moved, Kirschner seconded, to approve LA22-000068, 2815 Casco Point Road Variance
including staff recommendations, additional engineering review of the width of the wall and final
inspection. VOTE: Ayes: 4, Nays 1 (Libby).
From:Penny Saiki
To:Jim+Sherry White
Cc:Melanie Curtis
Subject:Minnehaha Water District
Date:Friday, December 30, 2022 3:11:18 PM
Hi, Sherry and Jim-
The contractor who had a permit to replace stairs and a deck that burned plowed about a 12ft wide
road from the backyard directly down to the lakeshore. He and the owner then decided to put in
stepped log retaining walls the full width of the lot. They removed all the plants and trees and left
each of the bordering properties with cliffs to the water. The inspector put on a stop order. Then
the Council gave them permission to build another tier to stabilize their hill for the winter, but it
was no guarantee that they would not have to replace the terrain to what it was with landscaping to
stabilize the grade. Planning was in favor of hill restoration in the past.
Now they are coming back for “variances after the fact” to keep the full hill retaining walls. They
took out truckloads of earth to place the tiers, and the adjacent properties have cuts to their tree
roots and the earth is disturbed.
I was hoping that the watershed district could weigh in at the Planning Meeting on Jan 17 at 6.
When I saw the road to the lake, I wrote the LMCD right away, and they immediately escalated it
to Minnehaha Watershed. It is such an arrogant approach to correct their error to the detriment of
the land and water quality. To “forgive” the error and arrogance weakens our (Orono’s) ability to
enforce the ordinances and more importantly the protection of the lake and other natural
resources.
The city offices are closed for the New Year, so I didn’t get to find out from Melanie Curtis what
the city Planning position is, but earlier they had recommended restoration of the hill.
Penny Saiki
psaiki@icloud.com
952-237-6753
L I V E W E L L
From:Penny Saiki
To:Melanie Curtis
Subject:Before and after visual aides
Date:Monday, January 2, 2023 3:58:45 PM
Hi, Melanie!
Photos for 2815 Casco Point Road for the after the deed variance application.
June 2022
Today, 1/2/23
Penny Saiki
psaiki@icloud.com
952-237-6753
L I V E W E L L
From:CHARLES PRICE
To:Melanie CurtisSubject:2815 Casco: New retaining wall location
Date:Monday, December 12, 2022 3:33:11 PM
December 12, 2022
Hello Melanie
Here are photos of a line that shows where the fence was located at 2815 Casco Point Road prior to the contractor removing the bluff. (The actual top edge of the bluff was of course some distance lakeside from the fence) The line that you see pulled across the property is attached to the fence post at 2813 and the fence post at 2817. The fence at 2815 ran between these two undisturbed fence posts. There is a tape measure attached to the center of this line. This tape measure indicates that the silt fence near the top of
the new bluff measures 22 feet further away from the lake than the previous fence.
Depending on which terrace one measures to, the new terracing on the bluff appears to be between 9 and 14 feet below the original grade at the fence line.
Regards,
Charles Price
Date: 21 February 2023
Subject: #LA22-000068, Valdes Lawn Care and Snow Removal LLC o/b/o Mark and Lisa
Thostenson 2815 Casco Point Road After-the-fact Setback Variances Public Hearing
Other Previous Documents
Certificate of Survey for Lisa Thostenson, dated 5/18/2022
RPS22-0000126 Permit Plan Packet, PC Exhibit J: Hardcover Calculation Worksheet, dated
8/15/2022
Hello Melanie,
After reviewing the packet of information regarding agenda item #LA22-000068, please note
some significant items that caught my attention and may solicit further scrutiny by the Planning
Commission Members and the City Council Members.
Background (page 1)
This statement highlighted in red below is in error. "Because the work was halted prior to
completion, on November 28th the owner requested and received permission from the City
Council to install a final wall at the top of the slope which their engineer determined to be
necessary to protect the integrity of the slope. Their engineer provided documentation showing
the slope failure is imminent and needed an emergency correction. That final wall has been
installed."
The final wall has not been installed. As a result, the integrity of the slope is not protected.
The "As-Built" drawings, Certificate of Survey - Wall Detail Original Design, dated 2/3/2013
by E.G. Rud & Sons, Inc. show six timber walls have been built to date. The original
engineering drawing prepared by Criterium-Schimnowski Engineers, dated 8/24/2022 depicts
seven timber retaining walls that were supposed to be built on the bluff. Hence, when the
Stop Work order was issued on October 28, 2022, the final timber wall had not been built
and the owner requested the emergency permission to build the final 7th timber retaining
wall.
When the Stop Work order was issued, the crew from Valdes Lawn Care and Snow Removal
did as much as they could to protect the bluff and stage the needed materials to build the last
remaining timber wall. The exposed dirt at the top of the bluff was covered in erosion
burlap; the timbers for the final wall build were staged at the top of the bluff and remain
untouched to this day. The crew also left a large pile of dirt near the bluff with the assumed
intent to use it to backfill for the final timber wall with dirt and stones.
The photos included in the letter from Schimnowski Criterium Engineers dated November
18, 2022 (regarding the "Timber Retaining Wall Upper Tier") most closely resemble the
current condition of the bluff with the exception of snow on the ground. The outline for the
placement of the 7th timber wall was shown the photos to depict the location of the final wall
build. However, no timber wall was built in this location, and thus this final retaining wall
was not included in the As-Built drawings.
PC Exhibit D: As-Built Survey for Valdes Lawn Care
Notes Listed on Survey:
"The survey boundary was calculated using a survey by Gronberg & Associates Land Surveying
dated 5-18-22."
"Boundary work was not completed as part of the as-built survey any monuments and
boundaries are for reference only."
The property boundary line between 2013 Casco Point and 2815 Casco Point are not in
agreement based on two separate surveys conducted by Gronberg & Associates in 2004 and
2022, respectively. Charles visited Gronberg's office once we discovered the discrepancy
between the two surveys after a discussion with Scott Gates when Charles, Scott and I were at
the bluff and discussing the location of the side property line at the top of the bluff. To date, Mr.
Gronberg has not provided a reply to our request to reconcile the two surveys as his surveyor has
been out on medical leave. Since the two surveys have not been reconciled, the determination of
whether the timber walls are fully located on the 2815 property is not complete. However, I do
not believe this is an issue that cannot be readily solved once the surveys are reconciled. I
mention this to address a concern stated in the information packet. This is referenced by Section
78-350 & 78-1279 - Setbacks, page 2 of 5: "The plans do not specifically clarify whether or not
the new walls were constructed entirely within the subject property boundaries; clarification is
required."
PC Exhibit D: As-Built Survey for Valdes Lawn Care & Hardcover Calculation
Worksheet (Proposed), Exhibit E
"The Prop. Impervious Surface Calculations and the Proposed Hardcover Calculation
Worksheet, dated 2/2/23 in this current information packet do not match the RPS22-0000126
Permit Plan Packet containing the Gronberg Survey completed 5-18-22 and the Proposed
Hardcover Calculation Worksheet, Exhibit J, dated 8-15-22. This Hardcover Calculation
Worksheet dated 8-15-2022 (and I believe was approved by City Council on or prior to October
10, 2022) itemizes the home renovations, new attached garage, bluff retaining walls and stairs,
etc that totaled to a 24.99% hardcover calculation. Interestingly, the updated Hardcover
Calculations based on a new survey completed by R.G Rud & Sons total to less hardcover of
24.93% even though there are line items for the added girth and complexity of the new timber
walls and the increase in stair length from the lake shore to the top of the bluff. I am concerned
that the new survey was performed in January/February 2023 in which major exterior
removal/changes have already been made to the house and property and with significant snow on
the ground in which many items could be obscured or missing.
Some of the discrepancies between the two Hardcover Calculation Worksheets include the
following items (values given in square feet). Some of these are very minor changes.
The house footprint decreased from 1425 to 1343. How is it possible that the house footing
is now smaller? There is no verbiage or drawings provided in the information packet that
describe any changes to the house footprint. Is the house footprint discrepancy the result of
the second survey that was completed in the Jan/early Feb months with at least a foot of the
snow on the ground that obscured the house concrete footprint? If so, should the original
survey and Hardcover Calculations dated 8/15/23 and approved by City Council take
precedence?
The proposed garage is listed as 24' x 30' but the math changed from 720 to 710.
The proposed concrete walk increased from 72 to 74
The proposed stoop increased from 66 to 80
The proposed Rear Patio & Step was 124 and now changed to a Rear Patio only (no step) at
108, but mathematically the size of 11' x 10' is 110.
The proposed driveway increased from 930 to 933
The existing stairs to basement decreased from 3'x8'=23 (math error?) from 27.
The math calculation for item "I" on the new Worksheet is not correct:
(65+64+60+43+51+47)/2 = 165, not 139.5. Based on the scaled drawing (Exhibit F) of the
bluff timber walls, a calculated value of the linear walls totaled well over 165. Granted,
these calculations came from a paper copy, but the differences should warrant a second
review of this line item.
Line items J through N: proposed stairs by the lake (upper, middle and lower), proposed stair
landing by lake, and proposed deck/boar house, and are not supported by any drawings in the
information packet. The proposed dimensions are provided, but there is no indication on the
how the steps would be built within the 75 foot lakeshore setback area.
There is no line item for the A/C pads in the new Hardcover Calculation Worksheet.
Summary
To reiterate, this new Hardcover Worksheet dated 2/2/23 does not include the final 7th timber
wall that was supposed to be built under the emergency request and City Council authorization,
or the additional stairs needed to traverse over the final wall. The emergency corrections
identified by Paul Schimnowski, P.E., in his letter dated Nov. 18, 2022 regarding the stability of
the bluff and the necessity for building the 7th tier have not been completed. I believe the
Planning Commission members and the City Council members should reject the applicants
request for approval of an after-the-fact bluff and 75-foot lake setback variances since the "As-
Built" retaining walls do not comply with the engineer's specifications.
It appears that the overall question is whether the bluff retaining walls should be completed per
the engineer's drawing of 7 tiers, or if the bluff should be restored more in line with "in-kind"
with the original bluff retaining walls and the previous line of the bluff. My impression is that
the new timber walls were constructed very well and the contractor made changes during
construction to improve the bluff walls better than the original wall timbers. The contractor built
solid retaining walls, but it was the method of removing the huge amount of dirt from the bluff
that shocked us, the neighbors, and the city planners and inspectors. Since the contractor has
built solid retaining walls, it may be prudent to let him finish building the final wall rather than
trying to restore the bluff more in line with the original bluff line. This dilemma is the question
for the Planning Commission members and the City Council members to fully evaluate and
resolve.
From:Penny Saiki
To:Melanie Curtis
Subject:Re: 2815 Casco Point Rd / LA22-000068 / PC Agenda + Staff Report
Date:Saturday, February 18, 2023 1:09:49 PM
Hi, Melanie,
Thanks fo sending this. I read the entire record from the Agenda sent previously.
There are lots of statements made by the applicant’s representatives that are meaningless. As a
former architect, any engineer that would write a report from photos only- without the
submittals of the actual design of the retaining walls and then back away from his own opinion
as holding any truth is not certifying anything. There are other statements that are not true. an
example is that the tree roots were cut ahead of the retaining wall installation. The roots were
cut with the cut into the hill to install the backfill and the retaining timbers.
The excavator made a huge mistake by destroying a portion of the hill without regard to the
rest of the hill and water quality. What they did to fix it was not good practice by any means,
and when you recommend approval of independently made poor decisions, you weaken the
whole point of having and enforcing ordinances.
Penny Saiki
psaiki@icloud.com
On Feb 17, 2023, at 8:24 AM, Melanie Curtis <mcurtis@ci.orono.mn.us> wrote:
Hello,
You are receiving this email because you have expressed interest in the application at 2815 Casco Point
Road. Please see the attached Planning Commission agenda and LINK to the staff reportfor
TUESDAY’S meeting. The meeting begins at 6PM if you wish to attend.
If you have any questions on the meeting information please reach out. Note, we are closed for the
holiday on Monday.
Have a nice weekend,
Melanie
<image001.jpg>
Melanie Curtis, Planner
Direct 952.249.4627
Planning & Zoning Office 952.249.4620
2750 Kelley Parkway, Orono, MN 55356
Email: mcurtis@ci.orono.mn.us
Website: www.ci.orono.mn.us
All permits and applications are handled through our online portal - LINK!
<Agenda 02.21.2023.pdf>
From:Wes Byrne
To:Melanie Curtis
Subject:RE: Upcoming request for variance
Date:Monday, February 20, 2023 11:33:39 AM
Hi Melanie,
I'm sorry that I have not had much time to look at all of this until now. I am out-of-town so please allow
me to basically ask one question, assuming Charles Price doesn't ask it for me:
Given the removal of the old drainage tile and the planned removal of the railroad ties between my
property and that of 2815 Casco Point Rd, is the storm water that collects behind the new retaining walls
and from the yard surface of the southwest region going to flow over into my yard? I see no changes in
the topographic drawings to indicate otherwise.
Thank you.
Wes Byrne
2817 Casco Point Road
612-741-2001
From: Melanie Curtis [mailto:MCurtis@ci.orono.mn.us]
Sent: Wednesday, February 15, 2023 10:38 AM
To: 'Wes Byrne'
Subject: FW: Upcoming request for variance
WesMy apologies, I sent this to the Prices yesterday and meant to send it to you as well.
Please see the attached information regarding the project at 2815 Casco Point Road. At this point I have
confirmed with the applicant that they will be ON the Planning Commission’s agenda on Tuesday night. As you
can see below I was still waiting on some information yesterday and it was not confirmed.
Please let me know if you have any questions. I plan to email a copy of the packet to you and the Prices for
Tuesday’s meeting after the packet is finalized. The meeting begins at 6pm.
If you have comments you wish to provide for the Planning Commission please email them to me before Friday
morning.
Thank you!
Melanie Curtis
Direct: 952.249.4627
mcurtis@ci.orono.mn.us
All permits and applications are handled through our online portal - LINK!
From:Yorks, Patricia E
To:Melanie Curtis
Subject:Please Post For Slide on Tonite"s Meeting
Date:Tuesday, February 21, 2023 3:48:06 PM
Hi Melanie:
Please post these photos on your presentation for tonite’s meeting agenda on 2813 Casco Point item for agenda
tonite.
It is important for everyone to see what we are all “up in arms” about regarding this wall. Photo #1 shows the
original wall, photo #2 is the wall built after “stop work order” un engineered out of city compliance, photo #3 is
the neighbor’s bank that totally washed away in in two large areas during a huge rain storm a couple of years ago
where the neighbors have complied with all ordinances and carefully and thoughtfully restored the bank.
Looking forward to seeing you tonite Melanie. Please confirm receipt.
Thanks so much.
Patty
Patty Yorks | 952.334.3333 | PYorks@cbrealty.com | www.theyorksrealestate.com
From: 9523343333@mms.att.net <9523343333@mms.att.net>
Sent: Tuesday, February 21, 2023 3:39 PM
To: Yorks, Patricia E <pyorks@cbburnet.com>
Subject:
*Wire Fraud is Real*. Before wiring any money, call the intended recipient at a number you know is valid
to confirm the instructions. Additionally, please note that the sender does not have authority to bind a party
to a real estate contract via written or verbal communication.
From:Margaret Martin
To:Melanie Curtis
Subject:Fwd: Opinion of Professional Geotechnical Engineer
Date:Tuesday, February 21, 2023 2:05:16 PM
Attachments:image001.png
image002.png
image003.png
image004.png
Good afternoon Melanie
I own property at 2821 Casco Point road.. my son.. a civil engineer.. geo tech… forwarded below details of his review of the projects two houses
from my property. Rather than trying g to summarize at mtg tonight.. forwarding his thoughts… including conclusion..recommendation to table ..
as he states for further details
PLEASE SHARE WITH ALL CONCERNED
Best regards
M Martin
Sent from my iPhone
Begin forwarded message:
From: "Peter M. Demshar" <PDemshar@barr.com>
Date: February 20, 2023 at 9:17:04 PM CST
To: Margaret <marg2821@yahoo.com>
Subject: RE: Opinion of Professional Geotechnical Engineer
Talking points:
The wall does not appear to be replaced in kind and therefore should fall under the scrutiny of new construction.
This wall increases impervious surfaces within the buffer and increases discharge to the lake. It does not appear that anything has been done to
naturalize the shoreline.
Surface drainage paths have not been identified.
Tree removal completed prior to plan approval
The damage caused by this disturbance may put neighboring properties at risk in the future. How has this been addressed?
Wall design questions
The typical wall design section does not clearly outlines spacing for the weep holes but fails to describe how this connects to the
drainage system behind the wall
Drainage weep holes do not appear to be constructed 30’ OC as described. The installed weep holes do not appear to be installed as
specified
There is no separator fabric specified between the ¾” drainage aggregate and the natural silty clayey materials.
There is no documentation that the behind wall drainage system was constructed as planned.
Deadman spacing is identified as every 8’ OC and every 3 courses and the plans show deadman on the 3rd course up and photos show 5
rows of timbers with no deadman (page 36 and page 30.
On page 8 of Exibit J the design limitations state that the design software used does not review global stability and that this should be
performed by a geotechnical engineer. This documentation has not been included in the application and should be reviewed prior to approving.
On Page 7 of Exhibit K Criterium requested additional geotechnical information which was not provided.
Page 2 of Exhibit J states that this is a test of the ordinance however this appears sets a precedence that after the fact variances will be
accepted without providing plans to properly restore the site.
I am recommending that this motion to approve the application for a variance is tabled until further information is provided for review and
good faith effort is put forth by the homeowner to address the visual impacts and the water quality impacts.
Date Application Received: 12/13/2022
Date Application Considered as Complete: 02/03/2023
60-Day Review Period Expires: 04/04/2023
To: Chair McCutcheon and Planning Commission Members
Adam Edwards, City Administrator
From: Melanie Curtis, Planner mcc
Date: 21 February 2023
Subject: #LA22-000068, Valdes Lawn Care and Snow Removal LLC o/b/o Mark and Lisa Thostenson
2815 Casco Point Road
After-the-fact Setback Variances
Public Hearing
Background
In July of 2022 the timber lake slope walls, deck, and stair to the lake were destroyed by fire. A building
permit was issued (RAS22-000082) to reconstruct the walls in-kind. During the installation of the walls, staff
observed that the construction expanded beyond the in-kind limitations in the wall lengths and some of the
wall locations. As a result, on October 28th, a Stop Work order was issued. The contractor was directed to fill
in, compact, and secure the open areas with appropriate stabilization measures. Because the work was
halted prior to completion, on November 28th the owner requested and received permission from the City
Council to install a final wall at the top of the slope which their engineer determined to be necessary to
protect the integrity of the slope (Resolution No. 7315, attached as Exhibit K). Their engineer provided
documentation showing the slope failure is imminent and needed an emergency correction. That final wall
has been installed.
Currently, the owner is requesting after-the-fact variances to address the wall footprint expansions in the
bluff and lake yard. The lake stairs are an allowed improvement within the 75-foot setback and can be
constructed with an admirative building permit. According to City Code Section 78-71(c)(1) regarding
reconstruction of legal nonconforming structures involuntarily damaged or destroyed, the deck and shed
may also be rebuilt in-kind with an admirative permit. The change to the configuration of the retaining walls,
if approved, will likely impact the ability to fully recapture the previous structural footprints and dimensions
of the deck and shed.
Practical Difficulties Analysis
Applicant Submittal Information: The applicant has identified the slope and existing conditions as practical
difficulties supporting the requested variances. Additionally, they have provided supporting documentation
regarding Practical Difficulties attached as Exhibit B, and should be asked for additional testimony regarding
the application.
Planning Staff Practical Difficulty Analysis: Regarding practical difficulty, Staff finds there are difficulties in
Application Summary:
Staff Recommendation:
FILE # LA22-000068
19 September 2022
Page 2 of 5
the topography and challenges brought on by the fire on the slope which may support the variances for the
expanded retaining walls. Staff supports the setback variances for the new wall footprint as long as the
change does not adversely impact neighboring properties and slope stability.
LOT ANALYSIS WORKSHEET
Section 78-350 & 78-1279 – Setbacks:
All of the improvements are within the 75-foot setback from the ordinary high water level (OHWL), and are
within the bluff. The newly constructed timber walls are situated generally where the previously existing
walls were located within the 75-foot setback and within the bluff. However, the new walls are not
considered an in-kind replacement as the footprint of some of the walls extend closer to the neighboring
properties, are in different configurations, and are in different locations than the previous walls. Variances
are required. The plans do not specifically clarify whether or not the new walls were constructed entirely
within the subject property boundaries; clarification is required.
Section 78-350 – Lot Area/Width:
LR-1C DISTRICT Lot Area Lot Width
Section 78-1680 and 78-1700 – Hardcover Calculations:
The applicant has provided hardcover calculations, attached as Exhibit E. The hardcover calculations include
the walls as well as replacement stairs to the lake, landings, deck, and shed/boathouse. They are not
requesting variances to exceed 25% hardcover.
Stormwater
Overlay District Total Area in
Zone
Allowed
Hardcover Existing Hardcover Proposed
Hardcover*
Tier 1 14,926 s.f.
*Includes the improvements/changes shown as part of Building Permit RPS22-000126.
Applicable Regulations:
Bluff and 75-foot Lake Setback Variance (Section 78-1279)
The proposed walls replaced walls destroyed by a fire along with other lakeyard improvements such as lake
access stairs, a deck, and a shed beneath the deck. Due to the bluff and steep nature of the slope on the
subject property as well as the immediately adjacent neighboring properties the walls are necessary.
Originally the applicant’s intent was to replace the destroyed walls in-kind. According to the applicant, the
process for the reconstruction involved removal of additional material from the slope. Once installed, the
placement of the new walls was determined to exceed the in-kind allowance.
All of the proposed improvements are within the bluff and lake setback. A lake stair is a permitted
improvement within the bluff and 75-foot setback. The deck/walkway and shed are not permitted, however
are able to be reconstructed in-kind. The property owners can apply for a building permit to re-build their
deck(s) and shed as long as the existing parameters are not exceeded. Because the new walls were installed
in a slightly different placement, size, and configuration, variances are required.
FILE # LA22-000068
19 September 2022
Page 3 of 5
Governing Regulation: Variance (Section 78-123)
In reviewing applications for variance, the Planning Commission shall consider the effect of the proposed
variance upon the health, safety and welfare of the community, existing and anticipated traffic conditions,
light and air, danger of fire, risk to the public safety, and the effect on values of property in the surrounding
area. The Planning Commission shall consider recommending approval for variances from the literal
provisions of the Zoning Code in instances where their strict enforcement would cause practical difficulties
because of circumstances unique to the individual property under consideration, and shall recommend
approval only when it is demonstrated that such actions will be in keeping with the spirit and intent of the
Orono Zoning Code. Economic considerations alone do not constitute practical difficulties. Practical
difficulties also include but are not limited to inadequate access to direct sunlight for solar energy systems.
Variances shall be granted for earth-sheltered construction as defined in Minn. Stat. §216C.06, subd. 14,
when in harmony with this chapter. The board or the council may not permit as a variance any use that is
not permitted under this chapter for property in the zone where the affected person's land is located. The
board or council may permit as a variance the temporary use of a one-family dwelling as a two-family
dwelling.
According to MN §462.357 Subd. 6(2) variances shall only be permitted when:
1. The variance is in harmony with the general intent and purpose of the Ordinance. Preserving and
protecting the lake yard slope is in harmony with the intent of the ordinance. Staff recommends
the proposed retaining walls be screened with vegetation to maintain the rural nature of the lake
wherever feasible.
2. The variance is consistent with the comprehensive plan. The as-built retaining walls will continue to
maintain the integrity of the slope and protect the slope from catastrophic failure which protects
the lake as well as neighboring properties. The proposal is consistent with the comprehensive plan
in this manner.
3. The applicant establishes that there are practical difficulties.
a. The property owner proposes to use the property in a reasonable manner not permitted by
the official controls; The owner has installed retaining wall improvements which are
residential in nature and reasonable from a residential scope.
b. There are circumstances unique to the property not created by the landowner; The owner
has constructed retaining walls to protect against failure of the slope resulting from a
catastrophic fire. The existing improvements within the slope of the lake yard were not
originally constructed by the owner; and
c. The variance will not alter the essential character of the locality. There were previously
existing retaining walls and improvements in the lake yard. The variance to permit the
expanded retaining wall structure within the bluff and 75-foot lake setback will help to
maintain the existing slope and character of the area.
Additionally City Code 78-123 provides additional parameters within which a variance may be granted as
follows:
4. Economic considerations alone do not constitute practical difficulties. Economic considerations
have not been a factor in the variance approval determination.
5. Practical difficulties also include but are not limited to inadequate access to direct sunlight for solar
energy systems. Variances shall be granted for earth-sheltered construction as defined in Minn. Stat.
§ 216C.06, subd. 17, when in harmony with Orono City Code Chapter 78. This condition is not
applicable.
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19 September 2022
Page 4 of 5
6. The board or the council may not permit as a variance any use that is not permitted under Orono
City Code Chapter 78 for property in the zone where the affected person's land is located. This
condition is not applicable, as residential improvements are an allowed use in the LR-1C District.
7. The board or council may permit as a variance the temporary use of a one-family dwelling as a two-
family dwelling. This condition is not applicable.
8. The special conditions applying to the structure or land in question are peculiar to such property or
immediately adjoining property. The slope of the property combined with the pre-existing
improvements are unique conditions affecting the subject property.
9. The conditions do not apply generally to other land or structures in the district in which the land is
located. The steep slope, existing timber wall configuration, and the existing improvements create
conditions which do not apply to all of the adjacent properties.
10. The granting of the application is necessary for the preservation and enjoyment of a substantial
property right of the applicant. Granting bluff and lake setback variances to allow the retaining
walls within the 75-foot lake setback to remain as constructed with an expanded footprint is
reasonable, is a better solution long-term, and is necessary to preserve the rights of the owner.
The variance is supported by the vulnerable slope on the property.
11. The granting of the proposed variance will not in any way impair health, safety, comfort or morals,
or in any other respect be contrary to the intent of this chapter. Granting the lake yard setback
variance allowing the retaining walls within the bluff and 75-foot lake setback will not adversely
impact health, safety, comfort or morals, or in any way be contrary to the ordinances.
12. The granting of such variance will not merely serve as a convenience to the applicant, but is
necessary to alleviate demonstrable difficulty. The proposed/as-constructed walls within the lake
yard will continue to preserve the integrity of the slope and there is no conforming location to
install the retaining walls which would protect the slope. Preserving the existing wall is necessary
for the protection of the slope and the lake.
The Commission may recommend or Council may impose conditions in granting of variances. Any conditions
imposed must be directly related to and must bear a rough proportionality to the impact created by the
variance. No variance shall be granted or changed beyond the use permitted in this chapter in the district
where such land is located.
Engineer Review
As part of the approval for the emergency slope repair, the City Council directed the applicant to provide an
engineer’s opinion regarding the stability of the slopes on the neighboring properties, the opinion letter is
attached as Exhibit H.
Public Comments
Comments from the public have been received and are attached as Exhibit L.
Issues for Consideration
1. Does the Planning Commission find that that the property owner proposes to use the property in
a reasonable manner which is not permitted by an official control?
2. Does the Planning Commission find that the variance (s), if granted, will not alter the essential
character of the neighborhood?
3. Does the Commission find it necessary to impose conditions in order to mitigate the impacts
created by the granting of the requested variance(s)?
4. Are there any other issues or concerns with this application?
FILE # LA22-000068
19 September 2022
Page 5 of 5
Planning Staff Recommendation
Planning Staff recommends approval of the setback variances for the improvements as proposed. Staff does
not recommend approval of any walls which encroach into neighboring properties. The applicant should be
asked to confirm that the retaining wall work was not conducted beyond the property lines. If
improvements were installed into neighboring properties, the application should be modified to include that
work as well as confirm property owners’ consent for the work. Staff further recommends vegetative
screening of the walls be implemented to screen the new walls from the lake as much as feasible.
List of Exhibits
Exhibit A. Application & Narrative
Exhibit B. Practical Difficulties Documentation Form
Exhibit C. Previous “Existing Conditions” Survey
Exhibit D. As-Built Survey
Exhibit E. Hardcover Calculations
Exhibit F. Plan Comparison – Staff Annotated
Exhibit G. Photos
Exhibit H. Engineer Opinion
Exhibit I. City Council Minutes 11/28/2022
Exhibit J. Council Memo 11/28/2022
Exhibit K. Resolution No. 7315
Exhibit L. Public Comment
Exhibit M. Property Owners List
Exhibit N. Plat Map