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HomeMy WebLinkAboutResolution 2292 'y _ ' C�t�.o� ORONO � RESOLUTION OF THE CITY COUNCIL � NO. 2292 � ' • - • • . , ', • A R$SOLIJTYOAi I2ENYING AFTER-THE-FACT VARIANCES °PO SECTION 10.22� SUBDIVISION 2 ANID SECTION 10.28, SIIBDIVISIOId 5 (A) AND SECTION 10.55, SIIBDIVISION 8 AND AN AFTffit-T�E-FACT CONDITIONAL IIS$ PERMIT PEFt SECTIONS �0.03, SQBDIVISION 19 & 20 FILE 1N0. 1177 WH$R$AS, the City of Orono is a municipal corporation organized and existing under the laws of the State of Minnesota; and WH$RE�iS, pursuant to State Statues 412 et. seq. and 462 et. seq. tY�e City Council of the City of Orono has adopted a Community Management Plan and zoning regulations for the protection of the public, health, • safe�y and general welfare; and WHEREAS, Todd Waters and Dori Mol.itdr-Waters (hereinafter "the applicants") have an interest in the property located at 3061 Casco Point Road and legally described as folYows: A track of land in Section 20, Township 117, Range 23, according to United States Government � Survey thereof, described as foYlows: Beginning at the most northerly corner of Lot 54 in Spring Park, thence westerYy in a straight line through a point which is located 15 feet due north from the northwest corner of Lot 52 in said Spring Park, extended to the shore of Lake Minnetonka; thence in a northerly direction along the shore of said lake to the intersection of said shore line with a line drawn parallel with and 100 feet norther].y, measured at a right angle, from the first above described course of this description; thence easterly paral lel with and 100 feet at right angles northerly from said first abc�ve described course, and its extension, to a point in the center line of vacated Ivy Place in said plat of Spring Park, said center line being a line parallel with and 25 feet at right angles northwesterly from the northwesterly line of� Lot 56 in said Spring Park; thence southwesterly paral lel with and 25 . feet at right angles northwesterly from the northwesterly lines of Lots 56 and 55 in Spring Park, said para11e1 Iine being the center line of said vacated Ivy Place to the intersection of said center Iine with the southwesterly line of Lot 55 , as extended ; thence southeasterly along said extended southwesterly line of Lot 55 to the . point of beginning. The southerly line of said tract being marked by two Judicial Landmarks placed at each end of said line. Page 1 of 13 � c�t� o� oR,oNO . � RESOLUTION OF THE CI.TY COUNCIL' . , � -� NO. 2292 . � ' • • • • WHLREAS, the applicants have applied to the City of Orono (hereinafter "the City") for after-the-fact variances seeking approval of Iand alterations conducted within 0 to 75 feet of the lakeshore of Lake Minnetonka where none is allowed per Section 10.22, Subdivision 2 and Section 10.55, Subdivision 8 and a height variance of 9 feet for the existing principal structure where only a maximum allowed height of 30 feet ' is allowed per Section 10.28, Subdivision 5 (A) and an after-the-fact conditional use permit per Section 10.03, Subdivisions 19 and 20 for land alterations not authorized under Orono Resolution No. 2172 or Orono Building Permit No. 6385 conducted within the lakeshore protected area and within 75 to 250 feet of the shoreline; and WHERE�S, the City Council has reviewed the application; the • recommendations of the staff and Planning Commission, the comments and written statement submitted by the neighbor, the comments and written statements of the applicants, applicants' attorney, and the applicants' site pYanner. 3�I061, THER�FORE, BE YT R$SOLVED, that the City Council of the City of Orono hereby denies the after-the-fact application as described above based upon one or more of the f-ollowing findings of fact concerning this propertys FINDINGS l. The p�operty is located in the LR-1C, Lakeshore Residential Zoning District and consists of 32,308 s.f. or .74 acres. The District requires 21,780 s.f. or .5 acres in area. 2. Prior to the restoration of the property, the former principal structure was Iocated 59 feet from lakeshore and hardcover improvements were recorded as follows on the property: 0°75' = 7.1�, Allowed = 0� 75-250 ' = 28.1� Allowed = 25$ 250-500 ' = 12$, Allowed = 30$ � 3. The former residence was approximately 16 feet above the elevation •of the lakeshore and was situated at the highest point on a bluff or • lakeshore bank. Two timber retaining walls were installed in the southwest corner/lakeshore of the property approximately 15 and 30 feet in length and a single stone retaining walY approximately 20+ feet to the east and 40 feet in length providing structural. support for the lakeshore bank. Page 2 of 13 • RESOLUTION #2292 � : 4. On March 19, 1987, the applicant applied (Application No. 1129) to the City for variances to hardcover, the average lakeshore setback Iine and Iakeshore setback for the reconstruction of the existing residence. The hardship cited as a reason not to be at the setback line on the face of the application reads as follows: "Existing residence (location) land elevation would hinder lake view. " . 5. Application No. 1129 also involved a request to realign the municipal sewer line that intersected the east portion of the property because of the need to expand the building envelope for the Iarger, reconstructed principal structure. 6. At the Apri]. 20, 1987 meeting of the Orono Planning Commission, • the applicant advised that the existing house was to be removed and a new structure and foundation was planned. Planning Commission recommended that the entire structure be moved back only eight feet instead of ineeting the required 75 feet setback because of the "topography". The principal structure was to be placed 67 feet from the lakeshore and the lakeshore deck would encroach no closer than 59 feet, the setback of the former residence. The applicant noted if the house was to be placed at the required 75 feet setback line, the lower elevations to the rear would hinder lake views blocked by higher elevations of the lakeshore bank. 7. At the May 11, 1987 Council meeting, Todd Waters was quoted as making the following statement to the Council: "Mr. Waters stated that the house was basically custom designed to fit the lot and to take advantage of the best lake views. " 8. Council approved Resolution No. 2172 at their May 11, 1987 meeting approving the variances as recommended by the Planning Commission,� such Resolution noted the following findings for this application: A) The applicant intends to construct a new foundation under the existing structure, hence he has the opportunity to move the house back from the lake a short distance. B) The proposed deck is to be 8' in width. Moving the entire . house and deck back 8' from the existing location will result in no new encroachment into the average lakeshore setback, will result in no additional 0-75' hardcover, and may actually decrease the 0-75' hardcover. � Page 3 of 13 . � c�t� o� oR;oNo � RESOLUTION OF THE CITY COUNCIL � � NO. 2292 � ' • - • • C) As a result of moving the house, the 75-250' hardcover will be increased to 33.1� where only 25� is normally allowed. This . can be justified by the fact that the. majority. .of .drainage in the 75-250' zone does not.flow toward.the .lake .but .is .held in the basin area east of the house (emphasis added). D) The view encroachment caused by the proposed porch at the south end of the house is minimal. The effected neighbor to the south has submitted a Ietter of non-objection to the project. � E) The relocation of the municipal sewer Iine is feasible and will not cause any problems for the municipal sewer system. 9. In that same Resolution the foI lowing variances were granted: A. Per Section 10.22, Subdivisions 1 and 2 and Section 10.55, Subdivision 8, approval of excavation of new foundation and new • construction or structure within the 0-75' lakeshore setback areas where no excavation or new structure� are allowed. B. Per Section 10.22 , Subdivision 2 to approve 33.1 $ of hardcover within the 75-250 setback area where only 25� is allowed. C. Per Section 10.22; Subdivision l, the new principal structure shal 1 be placed 67 feet from the lakeshore and the lakeshore deck was to be placed at 59 feet from the lakeshore instead of the required 75 feet. 10. On May 13, 1987, the appYicants' contractor, D & R Construction, ' applied for a building permit for the new construction. The handout information attached to aIl buiYding permit applications incYudes a list of the necessary information required if certain improvements are proposed specifically the following is extracted from that hand out: Grading and Drainage Plans - where any changes in grade or drainage are proposed as a result of the construction, a grading and drainage plan must be submitted showing existing and proposed � contours or grades. Required for all projects. 11. The original information submitted with the building permit application included only the building plans. Neither the applicant nor the general contractor submitted grading and drainage plans . advising of any proposed changes from the existing grades. The north and west building elevations included in the building plans would suggest no changes in grades as no elevations or contours were shown adjacent to each building elevation which is considered standard practice for architects in the preparation of building plans. Page 4 of 13 � _ � RESOLUTZON #2292 � 12. On May 20, 1987, the Building & Zoning Administrator Jeanne A. Mabusth, sent a letter to the applicant advising that the permit application was incomplete without the following required submittals: l. Sign off on original resolutions at Teri Naab's desk - to be executed by both you and your wife. 2. Engineering plans for sewer line realignment. 3. Executed easements by both you and neighboring property, owner - 20 feet width - 10 feet on either side of line. 4. Revised survey showing approved Iocation of house, sewer line and all other improvements. 13. Resolution No. 2172 conditioned approval on the applicant • submitting an updated survey ref Iecting new location of house on the property, receipt of engineering plans for realignment of sewer line and appropriate easement executed by affected property owners providing access to new sewer line prior to issuance of a building permit by the City. 14. On May 20, 1987, Rolland Mattson, the general contractor, submitted an executed easement that was taken over the entire property rather than the 10 feet on either side of the newly realigned sewer line. 15. On' September 9, 1987, the applicants executed a second access and utility easement with the correct legal description but Mr. & Mrs. Curtis J. Englund, property owners to the south, have yet to complete the easement document on file at the City as originally agreed to by applicants and applicants' attorney, David Davenport. 16. Following the Stop Work Order and filing of the after-the-fact application, the City staff persisted in its attempt to obtain the. required information for the after-the-fact application and asked Mr. Mattson for grading plans that would designate original grades. On July 17, 1987o staff received a letter from Mr. Mattson stating the following: "We do not have �ny of the original elevations nor were we given any at the start. We are unable to take elevations in the area • under consideration due to excavation partially done." Mr. Kopischke, the site planner, has submitted plans designating both original and existing grades for Land Use Application No. 1177. Page 5 of 13 Cit� o� ORONO • • RESOLUTION OF THE CITY COUNCIL � �� NO. 2292 � ' • - • • 17. D & R Construction, the general contractor, was continuously under pressure to meet the Parade of Homes deadline in September. The advertising benefits by the contractor's participation in the Parade of Homes are obvious not to mention the monetary rewards for both the contractor and owner. Staff found it difficult to obtain customary information associated with the building process. � 18. The revised survey dated 5/8/87 later submitted to the City as part of the building permit application showed no other improvements to the site that would suggest the need for grading plans or future structures such as retaining walls within the surrounding yard area. 19. In consideration of the recent Land Use Application No. 1129 and the information submitted with the building permit, the Building & Zoning staf f as weI 1 as the City Counci 1 were not made aware of any plans to alter the existing elevations of the property. • 20. On June 5 and June 11, 1987, the Building 'staff conducted footing inspections for the new structure and noted nothing unusual about the excavations to the outside of the footing structure. Excavations to the _exterior of the footing structure can range from 5 feet to 10 feet depending on the proposed height of the masonry/foundation wall to be instaYled above concrete footings. The next required inspection would be to inspect the framing. � 21. On July 2, 1987, the City received word from a concerned neighbor of excavations within the lakeshore yard of the property. The Orono staff immediately inspected the site and issued a Stop Work Order and advised the contractor of the violations. The inspection staff was not call.ed to the site to conduct a required inspection for framing until August 10, 1987. � 22. Sometime in the later part of August, the plumbing contractor, Robinson Construction Company, Inc., re-routed the municipal sewer lines prior to the City's approval of the engineering plans (as, required by conditions of Resolution No. 2172) and without the necessary permits. The first installation was done incorrectly and had to be re-done by the contractor. 23. In September of 1987, the City Staff was advised that the principal structure was placed over the private water service line that serves the residence to the south of the property. • 24. On July 10, 1987, the applicants filed for an after-the-fact conditional use permit and variances application seeking approval of the following: � Page 6 of 13 � c�t� .o� oR,oNo • RESOLUTION OF THE CITY COUNCIL � NO. 2292 � ' • � • • A. Per Section 10.22 , Subdivision 2 and Section 10.55 , Subdivision 8, major alterations of lands within the 0-75 feet setback area involving excavations within 5 feet of the shoreline and the removal of hundreds of cubic yards of fill. � B. Per Section 10.03, Subdivision 19 and 20, major alterations of lands within 75 to 300 feet of the shoreline involving proposed changes in existing draingage for 5+ acre watershed providing a swale along the north side of the house instead of providing retention in a ponding area and finaY transmittal of surface run-off to lake via an underground tile as existed bef ore. - C. Per Section 10.28, Subdivision 5 (A) , a building height variance is required since alterations around the principal • structure would now classify the lower basement as a full story (per UBC, Definition Section 417.240) exceeding the allowed 30 feet height along the lakeshore side by 9 feet and 7 feet at the rear. 25. The Planning Commission reviewed Application No. 1177 at their August 17, 1987 and September 21, 1987 meetings and voted unanimously to deny the after-the-fact application based on one or more of the folYowing findings noted by Commission Members: A. The City wouYd never have approved this type of grading before-the-fact. � B. Applicants have contributed to the drainage problem by increasing the footprint of the house threefold and by occupying a portion of the retention area that treated run-off. C. The applicants never corrected the City's assumption that drainage drained away from the lake to the retention area rather, than draining to the Iake via the existing underground tile. D. Drainage appears a convenient explanation to grant the walkout design which never showed on the plans. E. If the City was to approve an after-the-fact application of this type, a negative precedent would be established in dealing � with future applications dealing with similar violations. 26. At the Council meeting of October 26, 1987, the Orono Council denied the after-the-fact application and directed staff to draft the appropriate resc?lution noting the following findings: Page 7 of 13 � Cit� �of ORONO • - RESOLUTION OF THE CITY COUNCIL � NO. 2292 � ' • - • • A. The drainage issue was never raised in the original review of Application No. #1129 and yet the Council is now asked to believe that drainage is of major concern in the final restoration of the property. B. The City Engineer, Glenn Cook, has advised the Council tha� their decision need not be based on the environmental preferenece over an underground pipe vs the ground swale option since there is little difference in the effect on quality of water being discharged into the Iake. Given the fact that applicant has removed an existing drain tile, Cook does recommend that the method of maintaining drainage in the area must be addressed since previous retention area has been altered and underground tile �liminated. • C. Approval of the existing conditions would be a total disregard of the City's Iakeshore regulations and would be in complete conf lict of the City's Community Management Plan. D. Approval of this application would establish a negative precedent in the review of future land use applications that involve major land alteration within the lakeshore protected area and changes in existing drainage. 27. The applicants contend that their project has sustained serious delays and greater financial burden because the City failed to note grade changes. 28. Contrary to applicants' assertion, the substantial grading that has taken place on this` property would not have been realized by the mere discovery of a walkout during the plan review or by some irregularity in the excavations at the time of a footing inspection. 29. Retaining walls are considered structure and are classified as, hardcover. If such walls were original Iy planned, the applicants had the responsibility or obligation under the City's Ordinances to include the wall.s as hardcover in the application. The applicants and/or their contractor failed to provide this information with their original land use application or building permit application. 30. The applicants and/or their agents have removed trees within O to • 75 feet of the lakeshore without first obtaining a permit from the City, in violation of Section 10.22, Subdivision 3. The applicant has not submitted any information to the City as to the number and type of replacement plantings also required by that same Section of the Code. Page 8 of 13 clt� o� o�,oNo � RESOLUTION OF THE CITY COUNCIL . � NO. 2292 � ' • - • • . ughout the meetings for Application No. 1129, the applicants an or agents failed to correct the City in their formal findings of May 1, 1987, as set forth in Resolution No. 2172, that the majority of drainage from the property drains to rear of the house to a retention area. The surveys submitted with Land Use Application #1129 dated 3/10/87 and the survey submitted with the building permit application dated 5/8/87 failed to show the catch basin and the underground tile. - 32. The general contractor's claim that he received only a permit application form is not possible. Such forms are not single sheet handouts but are included with other informational sheets and forms that attempt to assist the applicant through the plan review process and also ensure the City that a11 necessary information is received with the building plans. The permit application and other handouts are stapled together. Furthermore, the applicants' buiYding permit has staple marks in the left hand corner which is evidence of the fact that he received the necessary information and request for information from the City. � 33e The applicants have been allowed to occupy the residence under special conditions of a Temporary Certificate of Occupancy until all violations have been resolved against the property by June 15, 1988 . 34. The major land alterations conducted within the Yakeshore protected area (0-75 feet from lakeshore) and the alterations of an existing drainage area involving a five+ acre watershed are found to be in complete confl.ict with the folYowing principals and goaYs set � _ forth in Orono's Community Management Plan. _____ � � � SHORELAND, FLOOD PLAN AND STORM WATER CONSIDERATIQNS - C.M.P. 3-9 i ORONO'S MANY MILES OF SHORELINE ARE ESPECIALLY SENSITIVE TO MISUSE OR OVERDEVELOPMENT. As the interface between land and water, the shoreline is ever changing . Shorelines are subject to continual erosion by wave action , ice buildup or unstable soil conditions . Droughts dry ou� vegetation and heavy rains or snow melt cause land slipage . On top of these natural pressures , man is drawn to the lake and the shoreline often becomes his battleground with nature . Lake access often means active use and construction of buildings and structures causing ' unnatural soil loadings , vegetation removal , and land alter'ation . Exposed • soil becomes more subject to erosion and man-made hardcover increases direct runoff quantity and speed. Power boats increase wave action and, more damaging , stir up the lake bottom causing release of nutrients and increased turbidity. � • � The impact , of course , is a degradation of water quality, impaired lake access and a change in the natural aesthetics which drew people to the shore in the first place . Legal considerations become entangled when lot descriptions conflict or become inconsistent due to changing water levels or. shoreline locations . Therefore , planning considerations must recognize the desirability of human interaction with the lake while at the . same time providing for protection of nature ' s sensitively balanced shoreline ecology. Page 9 of 13 � Cit� .o� ORONO : • RESOLUTION OF THE CITY COUNCtL � NO. 2292 • � ' • � • • LAND USE - C.M.P. 4-6 A PRINCIPAL GOAL OF ORONO' S PLANNING PROGRAM IS THE PROTECTION OF NATURAL RESOURCES �AND ENVIRONMENTAL AMENITIES, PARTICULARLY THE WATER QUALITY OF LAKE MINNETONKA. The Environmental Protection Plan. emphasizes Orono' s unique environmental position in relation to the long-term health of Lake Minnetonka. Land use and development will not be permitted at the expense of environmental protection. Retention of natural vegetation , light, air , and open space will be promoted . Shorelines will be protected from erosion and alteration. Wetlands and marshland will be protected and preserved as wildlife habitats , unique open spaces and most importantly as the only economically practical method of flood protection and storm water runoff filtration . GENERAL LAND USE POLICY N0. 2 - C.M.P. 4-12 2. ORONO' S LAND USE PLANS WILL BE BASED UPON ENVIRONMENTAL PROTECTION • POLICIES. Land use and development must assure the conservation , protection and preservation of sensitive environmental resources in accordance with the goals and policies of the Environmental Protection Plan. Land use policies will encourage the wise use and management of natural resources while prohibiting their misuse , abuse , overuse or exploitation. GENERAL LAND USE POLICY N0. 6 - C.M:P. 4-13 6. LAKE SHORELINES WILL BE PROTECTED FROM ALTERATION. Shoreland azeas , whether bluff , beach or floodplain , are sensitive environmental features with significant impact on lake water quality, aesthetic values and land use function . These same factors act to draw development which can be destructive if not properly � regulated. Natural vegetation in shoreland areas .wi11 be preserved insofar as practical and reason- able in order to retard surface runoff and soil ' erosion, and to utilize excess nutrients . Clear- � cutting will be prohibited. In areas of soil or � wave action erosion , mat�rial stone rip rap � � shoreline protection will be encouraged. � Page l0 of 13 � Cit� o� ORONO • RESOLUTION OF THE CITY COUNCIL � NO. 2292 '� . • - • • GENERAL LA SE POLICY N0. 10 .- C.M.P. 4-14 10. PRIVATE STEWARDSHIP OF LAND AND RESOURCES IS PREFERABLE TO INFLEXIBLE PUBLIC CONTROL. Private ownership , maintenance and stewardship of the land, including open •space and many types of improvements , is favored over public ownership as being in the best and most beneficial interests of the property owner and . the public , providing for more intimate , responsive and economical land management. GENERAL LAND USE POLICY N0. 13 - C.M.P. 4-15 13. FUTURE DEVELOPMENT MUST ENHANCE THE ENVIRONMENT. • Land development should respect and enhance the unique natural features of the site and the • general envi�ronmental assets of the community. Preservation of natural views , vegetation , drainage and general respect for unique site features always produces more aesthetic results and lasting value for the property i�- owner and the community than does wholesale �. alteration of the landscape� or mathematical �- - " division to the highest possible density. , . URBAN LAND USE POLICY N0. 11 - C.M.P. 4-19 11. A SIGNIFICANT AMOUNT OF NATURAL WOODLANDS AND OPEN SPACE WILL BE RETAINED ON EACH PROPERTY. Retention of the � , natural environment requires careful siting and preservation of trees and open space on each urban property. '` URBAN LAND USE POLICY NO. 13 - C.M.P. 4-19 � 13. RETENTION OF NATURAL VEGETATION WILL LIMIT THE IMPACT OF URBANIZATION AS VISIBLE FROM THE LAKE. Building heights will be limited to less than the typical tree height . Minimum green belts will be provided with pro- . • hibitions against clearcutting or excessive thinning of vegetation . Natural vegetation will be. preserved on slopes and retaining walls will • • be discouraged except when absolutely necessary - to prevent erosion , in which case they will be screened with natural vege�ation . Page 11 of 13 : . c�t� .o� oRONO _ � RESOLUTION OF THE C1TY COUNCIL ' . � � NO. 229•2 . � � . � - • • ' � � ' 35. The granting of the required variances would result in the following violations of Section 10.08, Subdivision 3 (A) of the Zoning Code with which the applicant must first comply before the requested variances can be granted: a) In review of the factual findings noted above, the plight of this applicant was created by either he or his agents' actions and has nothing to do with a unique hardship related to the land. The house was to be adopted to the given land contours. b) The granting of the requested variances would appear to serve • merely as a convenience to the applicant as there have been no valid hardships demonstrated through the review of this application. c) The plight of this owner has not been created by the City or its Ordinances but by the owner and his agents. 36. The applicants and/or �their agents have had every opportunity to provide the City and its staff with the requested information prior to construction or land alterations so that adequate and meaningful direction could have been provided. The intent and full purpose of the City's Zoning Code and Community Management Plan have been violated in a manner so severe that this Council must act to deny this application. The City Council cannot approve the illegal actions of a resident or his agents when similar actions would have been denied through the normal review process. FIIRTHERMOR$, BE IT RESOLVED that the City Counci 1 of the City of Orono hereby reaffirms denial of this after-the-fact conditional use permit and variances application with the formal adoption of this resolution and' further directs Todd Waters and Dori Molitor-Waters to restore the property to original grades and that the applicants� and agents of the City shall be guided by the fol lowing directives in the process of this restoration: l. The entire restoration of the property must be completed by June 15, 1988. If the applicants are unable to meet the established • deadline date, the City must be advised by June l, 1988. 2. The applicants shall work with the City staff and its consultants to restore original drainage and original grades to the entire site. Page 12 of 13 .. . r'-� '. � : . ' ,r- ,P. � �r' . . , . . � . . .:�. . y�`. . . . . = - i � .'�' , . . . . � • �' • � ��r k� � � C�t�.�o� ORONO . � � . .� � . � � Y .. � �. ... _?_.___. - . . . . M .. .. . . . � � _. - z RESOLUTION OF THE CITY COUNCIL a� NO. 2292 � �� . ' � - • • . 3. The applicants shall apply for a building permit prior to filling around structures if structural or other repairs are required for principal structure. , 4. Applicants shal I be responsibYe for maintaining adequate erosion control for the entire yard area that remains in a distrubed state until final grades and ground cover are restored. Adopted by the City Council of the City of Orono, Minnesota, this 9th day of November, 1987. ATT Ta � t w �` ,�— . . �' � ) � iDo othy M llin, City Clerk Jame . Grabe , Mayor � . � Page 13 of 13