HomeMy WebLinkAboutResolution 2292 'y _ '
C�t�.o� ORONO
� RESOLUTION OF THE CITY COUNCIL
� NO. 2292
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• 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 .
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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
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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
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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
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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
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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
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. 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 •
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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
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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
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' 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
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- z RESOLUTION OF THE CITY COUNCIL
a� NO. 2292 �
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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
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�` ,�— . .
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� iDo othy M llin, City Clerk Jame . Grabe , Mayor
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Page 13 of 13