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HomeMy WebLinkAbout02-21-2023 Planning Commission MinutesMINUTES OF THE ORONO PLANNING COMMISSION February 21,2023 6:00 o'clock p.m. 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 Page 1 of 19 MINUTES OF THE ORONO PLANNING COMMISSION February 21,2023 6:00 o'clock p.m. 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. Page 2 of 19 MINUTES OF THE ORONO PLANNING COMMISSION February 21,2023 6:00 o'clock p.m. 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. Page 3 of 19 MINUTES OF THE ORONO PLANNING COMMISSION February 21,2023 6:00 o'clock p.m. 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 Page 4 of 19 MINUTES OF THE ORONO PLANNING COMMISSION February 21,2023 6:00 o'clock p.m. 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 Page 5 of 19 MINUTES OF THE ORONO PLANNING COMMISSION February 21,2023 6:00 o'clock p.m. 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 Page 6 of 19 MINUTES OF THE ORONO PLANNING COMMISSION February 21,2023 6:00 o'clock p.m. 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 Page 7 of 19 MINUTES OF THE ORONO PLANNING COMMISSION February 21,2023 6:00 o'clock p.m. 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 Page 8 of 19 MINUTES OF THE ORONO PLANNING COMMISSION February 21,2023 6:00 o'clock p.m. 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 staffs recommendation of adding vegetation and making sure that the wall doesn't encroach on neighbor's properties. We definitely would need to verify Page 9 of 19 MINUTES OF THE ORONO PLANNING COMMISSION February 21,2023 6:00 o'clock p.m. 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. Page 10 of 19 MINUTES OF THE ORONO PLANNING COMMISSION February 21,2023 6:00 o'clock p.m. 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. Page 11 of 19 MINUTES OF THE ORONO PLANNING COMMISSION February 21,2023 6:00 o'clock p.m. 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). 2.LA22-000070 STACY KROMENHOEK,4085 WATERTOWN ROAD,REQUESTS AN AFTER-THE-FACT VARIANCE FOR A SIDE YARD SETBACK FOR A DECK. City Planner Nye gave a presentation on the item, stating the applicant is requesting an-after-the fact variance for a side yard setback for a deck and more specifically deck stairs. In April of 2021 variances were approved for the subject property for the construction of a single-family home. Variances were approved for lot size, lot width, front yard and side yard setbacks. This property is very small and narrow for the RR-1A zoning district. This district requires a minimum of a five-acre lot and 300-foot width. The subject property is less than an acre and only 73 feet in width. The district's 50-foot side yard setback requirements overlap,taking away any compliant building envelope.Based on these practical difficulties variances was granted back in 2021. The building permit for the construction of the home was issued in August of 2021.And construction began after that. As construction drew to a close staff discovered the deck and deck stairs were built 17.3 feet from the northern property line where 19 feet was required. The applicant has chosen to move forward with an after-the-fact variance. They're here today requesting the variance to keep the deck and deck stairs where they are now to allow a modified side yard setback of 17.3 feet. The applicant has identified the substandard lot size and width as practical difficulties, also noting that the current owner of the property was not responsible for this and would like to keep the stairs in place. Moving the stairs to the rear of the deck instead would impact the view and sunlight entering the home. Staff agrees the lot is substandard in size and width and doesn't have a compliant building envelope. These practical difficulties led to the approval of a variance in 2021. Staff does not believe there are any new practical difficulties that will lead to a modified setback today. The construction error that resulted in the deck stairs being constructed 1.7 feet beyond the side yard setback does not constitute a practical difficulty. Therefore, Staff recommends denial of the requested variance. The applicant is here tonight and has provided supporting documentation and can be asked for additional testimony.No public comment has been received. Commissioners asked where the steps were supposed to have been. Page 12 of 19