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MINUTES OF THE
ORONO PLANNING COMMISSION MEETING
Monday, June 16, 2003
6:00 o'clock p.m.
ROLL
The Commission met on the above mentioned date with the following members present: Chair
Sandra Smith, Commissioners David Rahn, Liz Hawn, Jeanne Mabusth, Cynthia Bremer, and
Stephanie Zugschwert. Representing staff were Planning Director Mike Gaffron, Recorder Kristi
Anderson, and Council Representative Mayor Peterson.
Commissioner J. Mark Fritzler was absent.
Chair Smith called the meeting to order at 6:01 P.M.
CONSENT AGENDA
(#1) #03-2897 ATLANTIS POOLS ON BEHALF OF IRFAN ALTAFULLAH, 2520
THOROUGHBRED LANE, CONDITIONAL USE PERMIT
Bremer moved, Mabusth seconded, to recommend approval of Application #03-2897,
Atlantis Pools on behalf of Iran Altafullah, 2520 Thoroughbred Lane, a conditional use
permit for construction of an accessory structure (swimming pool) on a `through' lot
subject to staff's recommendation that the pool be slightly realigned to meet 10' structure
to structure separation requirements. VOTE: Ayes 6,Nays 0.
(#2) #03-2899 TIMOTHY PELLIZER, 520 NORTH ARM DRIVE,VARIANCE
Bremer moved,Mabusth seconded, to recommend approval of Application #03-2899,
Timothy Pellizer, 520 North Arm Drive, request for an average lakeshore setback variance
to allow construction of a 1,228 s.f. attached garage addition encroaching 68' into the
average lakeshore setback, subject to relocation of the septic system as necessary to
maintain required setbacks. VOTE: Ayes 6, Nays 0.
NEW BUSINESS
(#3) #03-2904 RICHARD S. BROWN, 1300 SHORELINE DRIVE,AFTER-THE-FACT
VARIANCES, 6:10- 7:01 P.M.
Richard Brown, the applicant, and Scott Cooper, the subsequent builder, were present.
Gaffron explained that the applicant had purchased the home in November 2002 and a few days
prior to closing inquired as to whether the property was in compliance. As no Certificate of
Occupancy had yet been issued nor requested, and no inspections had been called for in more
than a year, staff immediately visited the site and concluded that hardcover appeared to be
excessive. The buyer (applicant) within a few days executed an agreement drafted by the City
Attorney to allow temporary occupancy while the matter was resolved. Applicant then had an
as-built survey performed, which confirmed that the hardcover was far in excess of that allowed,
Page 1 of 22
MINUTES OF THE
ORONO PLANNING COMMISSION MEETING
Monday, June 16, 2003
6:00 o'clock p.m.
(#3 #03-2904 RICHARD S. BROWN, Continued)
and portions are outside of the property boundaries and potentially encroach on required wetland
setbacks.
Gaffron pointed out that the applicant has proposed certain hardcover removals to reduce
hardcover from the existing 50.8% down to 45.6%, where only 35% is allowed. The original
hardcover submittal proposed hardcover at exactly 35%, which was accepted by the City and
under which a building permit was issued in October 1998. This property had been the subject
of a variance for lot area and width as well as front/side/rear setbacks,but no hardcover variance
had been granted.
With regard to retaining walls,wetland and right-of-way encroachments, Gaffron noted that the
site contains many boulder and keystone retaining walls which add to the hardcover and support
the many and varied garages and entry points to the house, or provide for flat rather than sloped
yard areas. The previous owner/builder did not obtain permits nor disclose his intent to the City
prior to constructing the walls, as few are shown on plans submitted to the City before or during
construction. In addition to constituting hardcover, certain walls along the east and south lot lines
are in City right-of-way and/or appear to encroach within 26' of wetlands. The wetland to the
east was preliminarily delineated in December according to the survey; the City has no
knowledge of a final delineation. It is possible that the walls encroach into defined wetland areas
protected by the City and other agencies.
Gaffron shared additional issues for consideration:
1. The hardcover on the site far exceeds that allowed by City Codes.
2. The applicant knew when he purchased the property that hardcover was excessive and he
agreed to bring it into compliance in order to obtain a Temporary Certificate of
Occupancy for the residence.
3. Once the applicant became aware of the magnitude of hardcover excess, he chose to
request an after-the-fact variance rather than bring the property into compliance.
4. Certain improvements to the property were constructed in City right-of-ways without
prior authorization, and some of the improvements potentially encroach within the
boundaries of or within the required setbacks of a protected wetland; the degree of such
encroachment is yet unknown.
5. The applicant proposes certain removals which reduce the excess hardcover by 1/3,but
which still leave hardcover at a level of 45.9% or 2,122 s.f. in excess of the 35% limit.
Should the applicant be required to reduce the hardcover to meet the 35% limit?
6. Does Planning Commission have any other issues or concerns with this application?
Page 2 of 22
,
MINUTES OF THE
ORONO PLANNING COMMISSION MEETING
Monday, June 16, 2003
6:00 o'clock p.m.
(#3 #03-2904 RICHARD S. BROWN, Continued)
Gaffron indicated that staff would make the following recommendations:
1. The after-the-fact hardcover variance should be denied, and the applicant should be
directed to provide a plan showing how hardcover will be reduced to meet the 35%
limitation, including removal of fabric or plastic from all decorative rock beds.
2. The wetland delineation should be completed immediately to determine the degree of
encroachment of wetland or required wetland setbacks by retaining walls, fill or paved
surfaces. All such encroachments should then be removed.
3. Retaining walls should be removed wherever they extend outside the property
boundaries, and any walls within 5' of the lot lines should be reviewed to determine
whether they are needed to support steep slopes or whether they are purely aesthetic in
nature, and those not necessary to support the topography of the site should be removed.
Gaffron suggested that a motion to table the application and direct applicant to take actions to
bring the property into compliance per the staff recommendation would be in order.
There were no public comments.
Chair Smith stated that she had no problem accepting the staff recommendation and asked for the
applicant's statement.
Mr. Brown indicated that, to say the least, the issues with the hardcover had frustrated him. He
stated that the staff report was incorrect implying that he had contacted the City just days before
closing, in fact, he had initially contacted the City four weeks before closing on the home. At
that time, Brown indicated that he was told by staff that everything seemed to be in order, other
than final inspections for electric and plumbing. He explained that it was not until 4:00 P.M. the
day before closing that he found out about the retaining wall issues. He was told,by staff, at that
time that he would have to agree to be held responsible for the retaining walls, so he hired an
attorney to consult with the City Attorney to draft a document. Brown continued, noting that it
was not until the closing itself that he found out about the hardcover issues, which at the time, he
was unaware what hardcover meant or to what extent the problem existed.
Brown stated that, since closing on the home, it has been a nightmare, and had he realized how
many issues were tied to it, he never would have bought the home. He asked what he could do,
that would be reasonable, such as remove part of the driveway and retaining walls, to work with
the City to resolve the issues. He argued that he had relied on the building inspector, who had led
him to believe, in his opinion that everything seemed to be in order, only to find out that this was
inaccurate.
Page 3 of 22
MINUTES OF THE
ORONO PLANNING COMMISSION MEETING
Monday, June 16, 2003
6:00 o'clock p.m.
(#3 #03-2904 RICHARD S. BROWN, Continued)
Chair Smith questioned when the applicant was informed that the issues involved more than
retaining walls and hardcover would call for after the fact variance approval.
Gaffron noted that the final inspection issues arose during the November 8, 2002 final
inspection.
Brown indicated that he had attended the final inspection, and at no time during that inspection
did he believe the issues were more serious than the retaining walls. He maintained that nothing
was mentioned about hardcover at that time.
Chair Smith asked Gaffron for the building inspector's comments.
Gaffron stated that he had spoken to `Bruce', the inspector, that day, who indicated that both
hardcover and retaining walls were noted on the inspection for further review. He added that no
inspection had been performed on the home in over a year as construction was ongoing.
Gaffron explained that the City Attorney contacted the applicant as soon as hardcover was found
to be an issue and an agreement was written and is enforceable.
Rahn questioned how the City could make sure things are taken of once a temporary Certificate
of Occupancy is granted in the future. He asked if the temporary certificate constitutes a
handshake, or an understanding, that things will be done, and questioned if an escrow of funds
might be a better way of ensuring things are completed.
Gaffron indicated that the temporary certificate is an agreement alone, without an escrow, and
follow-up needs to be done.
Chair Smith inquired whether there were any communications available that could help to
establish a timeline of communication.
Rahn pointed out that,typically, the building inspector performs an inspection for the current
owner, or former in this case, and unfortunately, the potential buyer might not be aware of the
discrepancies.
Gaffron pointed out that, it was not until, they compared the as-built surveys to the approved
builders' submittals that the true discrepancies became apparent.
Mr. Cooper, the subsequent builder to Bob Howard, questioned how the retaining walls, which
were built in 1999, were allowed to remain for three years before any inspectors questioned their
presence. Cooper too, indicated that he was made aware of the retaining wall issues but not the
hardcover issues until days before closing.
Page 4 of 22
MINUTES OF THE
ORONO PLANNING COMMISSION MEETING
Monday, June 16, 2003
6:00 o'clock p.m.
(#3 #03-2904 RICHARD S. BROWN, Continued)
Chair Smith asked Cooper what he shared with the potential buyer.
Cooper stated that he shared the inspection notice with Brown and that the attorneys drew up the
appropriate documents. He stated that the original builder built the retaining walls, including the
ones that encroach over the property line. Cooper noted that,while the numbers may have looked
good on paper, once the exact measures were taken, the hardcover became an issue.
Since both the planning department and building inspector review hardcover calculations,
Gaffron maintained that had the builder built the home to original specifications it would have
worked out.
Cooper stated that he had met with Inspector Oman and felt that moving the retaining wall and
curb wall would, in effect, solve the problems.
Although unfortunate for Mr. Brown, Chair Smith stated that further removals would be
necessary.
Although the Public Works Director didn't care for the idea, Brown suggested he purchase the
proposed street below his property and grant its easement back to the City.
Gaffron discouraged the applicant from pursuing this avenue since the Public Works Director
would not support the idea and no one knows what the future for that street holds. He did not
believe the City would look favorably upon vacating the street.
While the Commission could spend the entire evening discussing who said what to whom, Hawn
suggested they assist the applicant in finding ways to reduce hardcover further.
Bremer acknowledged the applicant for his attempts to work with the City; however, pointed out
that paragraph 2 of the agreement does hold him accountable for the hardcover issues. While she
empathized that there were time constraints involved and that the extent of the hardcover issues
were not known, she encouraged the applicant to work with the City to come to an agreement.
Brown stated that he would be willing to work with the City; however, was cautious to do so
since he believed many people had not been honest with him from the start. He asked the
Commission to ensure a fair process for him, adding that he had already spent a great deal of
money to purchase the property and was hesitant to make changes that would greatly decrease its
value.
Gaffron pointed out that the proposed 8' driveways were now 12' wide, which could be reduced,
and suggested that fabric in the rock beds be removed as a beginning.
Cooper stated they could reduce the driveway and move the retaining wall off the property line.
Page 5 of 22
MINUTES OF THE
ORONO PLANNING COMMISSION MEETING
Monday, June 16, 2003
6:00 o'clock p.m.
(#3 #03-2904 RICHARD S. BROWN, Continued)
Hawn further suggested they consider removals including the gravel on the other side of the
house, blacktop, and pavers. She believed there were many areas to make further reductions and
encouraged Brown to work with the planning department to uncover them.
Gaffron pointed out that, typically, the planning department would have worked with the
applicant to determine the removals prior to this phase.
Mabusth questioned whether the Commission would allow the encroachment into the
unimproved right of way and wetland setback, and suggested the applicant work with staff to
make things work.
Rahn felt there were many areas for removals and expressed his desire to see the home get closer
to what was approved originally.
The Commission agreed that the wetland delineation would need to be performed in order to
ensure the applicant meets the 26' setback; however, the Commission could accept the applicants
not necessarily being 5' from the property line.
Brown questioned if the walls were too high as noted on the inspection.
Gaffron stated that the engineer would need to grant approval if the walls were to exceed 4' high.
Brown stated that he now felt better about working with staff to determine the changes needed.
Cooper reiterated his question as to why it took three years to recognize the various issues.
Chair Smith stated that the construction itself exceeded three years and the City did not have the
opportunity to catch the changes.
Mabusth moved, Hawn seconded,to table Application #03-2904, Richard Brown, 1300
Shoreline Drive, for the purpose of hardcover removals adding that the Commission
recommends wall height be subject to Engineer approval, and the retaining wall be moved
out of the right-of-way and meet the wetland setback requirements. VOTE: Ayes 6, Nays
0.
(#4) #03-2905 HEIDI B. NAGEL, 995 WILDHURST TRAIL,VARIANCES 7:03-7:22
P.M.
Heidi Nagel, the applicant, was present.
Page 6 of 22
MINUTES OF THE
ORONO PLANNING COMMISSION MEETING
Monday, June 16, 2003
6:00 o'clock p.m.
(#4 #03-2905 HEIDI B. NAGEL, Continued)
Gaffron pointed out that the applicant has requested a number of variances to enclose a portion
of a second story deck, expand a deck, extend roof over existing front porch, and construct an
attached 2-stall garage to the existing residence. The variances include:
1. Additional 75-250' hardcover in excess of 25%with concurrent removals to result in
no increase or a slight decrease.
2. Average setback encroachment by decks and screen porch.
3. Street setback variance of 1.5' for attached garage.
4. Lot coverage variance to increase from 14.02 %to 16.79 %.
As proposed, Gaffron noted that the applicant proposes 3 additions to the existing residence:
1) Enclose a screen porch over a portion of the existing 1st story deck, requiring an
average setback variance.
2) Add a 68 s.f portion of deck requiring an average lakeshore setback and
hardcover variance.
3) Add an attached 24'x24' 2-stall garage requiring a street setback variance of 1.5'
which results in a lot coverage excess.
4) Extend roof to cover entire front porch.
Gaffron noted that this property has been the subject of variance applications in the past to allow
the decks on the lake side as well as the two-stall attached garage at the east end. The most
recent hardcover approval allowed 4,910 s.f in the 75-250' zone. Existing hardcover in 2003 is
5238 s.f, i.e. an excess of 328 s.f. It is apparent by comparing the 1995 approval and the current
survey that this is almost entirely due to overages in the driveway and front walkway.
Gaffron shared 5 issues for consideration and indicated that:
1. Staff recommends approval of the enclosure of the screen porch as proposed over the
portion of existing 1St story deck.
2. Staff recommends approval of the extension of roof to cover the entire front porch.
3. Staff recommends that the applicants determine where hardcover will be removed to
bring the property into conformance with the 4,910 s.f. limit imposed by Resolution No.
3578. Then Planning Commission should consider whether further hardcover removals
can be completed to offset the proposed new deck hardcover addition.
4. Staff recommends denial of the lot coverage and setback variances for the attached
garage, finding that neither is supported by hardship.
As such, Gaffron noted that the Planning Commission could either send this forward to Council
with conditions; or table for applicant to revise plans (provide clear direction to applicant as to
which projects are feasible and which should not be pursued).
Page 7 of 22
MINUTES OF THE
ORONO PLANNING COMMISSION MEETING
Monday, June 16, 2003
6:00 o'clock p.m.
(#4 #03-2905 HEIDI B. NAGEL, Continued)
There were no public comments.
While the total lot area indicates the Nagel's have 23,210 s.f., Ms. Nagel pointed out that, in
reality, they have 1.6 acres, as a portion of their property is across the channel. She questioned
whether they could include this square footage in their lot calculation.
Gaffron noted that, over the past 2-3 years, the City has not considered severed property in the
lot calculation, and he believed including it would be a totally new way of looking at these types
of properties. He indicated that, in addition, it would require a great deal of survey work and,
potentially,be precedent setting.
Nagel asked if they could back the garage up 1 1/2' to alleviate the street setback variance.
Hawn indicated that the structural cover and hardcover variance requirements were different. She
stated that the applicants would need to hold to the 15% structural coverage limitation; however,
by sliding back the garage the hardcover variance request would be eliminated.
Gaffron pointed out that the proposed bump-out would be acceptable if the garage addition was
left out.
Zugschwert, Rahn, and Bremer all concurred with staff's recommendation.
Hawn felt the applicants were close and could meet staff's recommendations with a few more
modifications.
While all could support sliding back the garage and maintaining the 15% structural cover, Chair
Smith asked for opinions on the hardcover.
Mabusth indicated that she could support approving all but the garage addition.
Since it would be staff's recommendation to get back to the 1999 approvals, Gaffron indicated
that blacktop would need to be removed and, since 1% is equal to 232 s.f., virtually, the entire
garage addition would need to be wiped out.
Nagel agreed to table the application in order to work with staff on specific goals of the plan. She
asked whether the Commission or staff felt the wetland survey should be pursued.
Gaffron could not comment whether the City Council or Commission would wish to use wetland
or separated land as part of lot area calculations. Since the entire code would need to be
reconsidered, which staff would not support, he didn't believe it was worth pursuing.
Page 8 of 22
MINUTES OF THE
ORONO PLANNING COMMISSION MEETING
Monday, June 16, 2003
6:00 o'clock p.m.
(#4 #03-2905 HEIDI B. NAGEL, Continued)
Hawn moved, Chair Smith seconded, to table Application #03-2905, Heidi Nagel, 995
Wildhurst Trail, for the purpose of review. VOTE: Ayes 6, Nays 0.
(#5) #03-2906 RICHARD ROBERTS, 1937 FAGERNESS POINT ROAD,AFTER-THE-
FACT VARIANCES, 7:22-7:49 PM.
Richard Roberts, the applicant, was present.
Gaffron explained that the applicant was requesting after-the-fact approval for construction of a
retaining wall and stairway system in the 0-75' setback zone, constituting hardcover and structure
where none is normally allowed. Staff recommends partial approval only, to allow for a 4'wide
stairway but deny the retaining walls on the lake side of the road; and denial or request further
design detail for a retaining wall within the property on the north(house) side of the road.
The current owner was granted a variance in 1991 to construct a new home on the property to
replace an old cabin. That approval required that a cribbed sand volleyball court underlain by
plastic sheeting on the lake side of the road be made non-hardcover. The sand area was
eventually removed but the cribbing remained in place for a time. This spring applicant was
found to be constructing new retaining walls in the 0-75'zone between the road and the lake, and
the job was stopped by the building inspector(see letter of 4-15-03).
Gaffron noted that the applicant indicated he intended to make the access to the dock safer by
adding a stairway. This area where walls are proposed had a slope of approximately 1:6 or 17%
for a 10-15'distance, easily maintainable and not requiring retaining walls for support. This area
was not hardcover in 1991 and has never been approved for hardcover. Parking boats or vehicles
on it would create hardcover by default.
It is staff's conclusion that applicant is attempting to create a new flat storage or parking area in
the 0-75' zone, as evident from the current storage of a boat trailer noted on 6-11-03. Gaffron
continued, stating that staff has also advised applicant about apparent illegal boat slip rental at
the site, as 2 of 3 boats stored at his dock are not registered to this property.
In addition, Gaffron stated that along the house side of the street, applicant states he wishes to
replace an old retaining wall that is now gone, to hold up the bank and make this area easier to
maintain. Replacement of that wall in the right-of-way is not something staff would support. If
it is replaced within the property boundaries, this will potentially create a parking area along the
street. This is a narrow street, and applicant's driveway already has capacity for storing at least 4
vehicles. If this wall is allowed to be replaced, staff would recommend that the area outside of
the 3' gravel shoulder be maintained in grass rather than be graveled or paved for parking area.
After reviewing 5 issues for consideration, Gaffron restated the staff recommendation that the
retaining wall system on the lake side of the road be denied, and the applicant directed to remove
Page 9 of 22
MINUTES OF THE
ORONO PLANNING COMMISSION MEETING
Monday, June 16, 2003
6:00 o'clock p.m.
(#5 #03-2906 RICHARD ROBERTS, Continued)
the offending walls and apply for a building permit to construct a short 5' stairway if pedestrian
access is necessary. Furthermore, staff recommends that design detail be provided by the
applicant regarding the proposed wall on the house side of the street. If this wall is approved, it
should be located within the property, not on the right-of-way, and screened with vegetation to
soften its visual impact from the lake. The area between the wall and the road should not be
paved, graveled or otherwise allowed to become a parking area, except for a 3' gravel shoulder
adjacent to the existing pavement
John Thimmesh, 1945 Fagerness Point Road, voiced his support of the project.
Mr. Roberts stated that it was never his intent to create a gravel parking area in the 0-75' zone, in
fact, he maintained that this was the only parking that accompanied the home when they first
bought it. He added that he would prefer it not be there at all. Roberts explained that, last year,
they obtained a permit to run water under the road to their lakeshore, at that time, the retaining
wall near the home was damaged by trucks, and now he was merely trying to repair the wall not
realizing he needed permission to do so. In addition, he had removed some oily old timbers from
below the roadway, and replaced them with new near the lakeshore to provide them with safer
easier access to the lakeshore.
Chair Smith explained that the City is particularly sensitive to lake yard and access work in the
0-75' setback zone and indicated that the lake side retaining wall would need to be removed.
Roberts stated that he had completed the retaining wall on either side of the steps at the lake and
removed the old ties.
Gaffron stated that they would recommend that the wall system be removed and the steps only be
allowed to remain. He believed the slopes could be maintainable and did not constitute a
dangerous slope which required retaining walls.
Roberts maintained that the ground at lakeside was eroding and the timbers helped to give them a
stable base to walk on.
Hawn recommended the applicant restore the yard to the original grade or slope.
Bremer questioned the presence of the house side retaining wall.
Roberts indicated that he had spoken to Lyle Oman about placing a 4' high wall there since he
would, ideally, like to round the corner and taper it down.
Mabusth stated that she believed the retaining wall was necessary based on the topography there.
Page 10 of 22
MINUTES OF THE
ORONO PLANNING COMMISSION MEETING
Monday, June 16, 2003
6:00 o'clock p.m.
(#5 #03-2906 RICHARD ROBERTS, Continued)
Gaffron questioned whether, if the wall were allowed, the Commission would like to see
screening placed in front of it.
Roberts pointed out that there was a huge tree on the west corner above the retaining wall which
would affect its position. He suggested constructing a two tiered retaining wall with vegetation
between the layers.
The Commission agreed with this suggestion.
Mabusth moved, Hawn seconded, recommending approval of Application #03-2906,
Richard Roberts, 1937 Fagerness Point Road, granting after-the-fact variance approval to
construct a two tiered retaining wall system on the house side of the road screened with
natural vegetation, accompanied by no wider than a 3' gravel shoulder on the north side of
Fagerness Point Road; the Commission recommends denial of the retaining wall system on
the lake (south) side of the road, with the exception of a boxed stairway 5' long and 4' wide,
and regrading with up to 10 yards of dirt. VOTE: Ayes 6, Nays 0.
(#6) #03-2907 JEFF AND CARA ZIEBARTH, 720 NORTH ARM DRIVE,VARIANCES,
7:49 - 8:20 P.M.
Cara Ziebarth, the applicant, was present.
Gaffron reported that the applicant requests a number of variances to construct a second story
addition and attached garage to the existing residence. The variances include:
1. Additional structure within a bluff impact zone.
2. Second story structure encroaching within 0-75' setback zone, 65' from shoreline.
3. Second story structure encroaching 4.3 feet from left side lot line.
4. Second story structure encroaching 2.4 feet from right side lot line.
5. Attached garage addition and grading 4.0 feet from left side lot line.
6. Continue existing deck in 0-75' zone (42' from shoreline) slightly smaller (dimensions not
defined by applicant)but probably still encroaching average setback line
7. Encroachment within 10' of City sewer line (City will not vary from the 10'requirement).
8. Lot coverage by structures to remain at existing 1870 s.f. (23.5%) where 1500 s.f. is
allowed.
9. Hardcover in 0-75' reductions proposed from 1058 s.f.(29.4%) to 806 sf(22.4%) where no
hardcover is allowed, by reducing deck and concrete slab areas.
10. Hardcover in 75-250'zone will be reduced from 2257 sf(51.9%)to 1879 sf(43.2%).
Gaffron stated that it would be staff's recommendation:
a) Denial of the side setback variances for the garage, as it can be shifted to meet a 10'
setback with some interior design changes.
Page 11 of 22
MINUTES OF THE
ORONO PLANNING COMMISSION MEETING
Monday, June 16, 2003
6:00 o'clock p.m.
(#6 #03-2907 JEFF AND CARA ZIEBARTH, Continued)
b) Denial of the second story additions within the side setbacks, because they will tend to
overshadow adjoining properties, lead to issues over future maintenance, and will
probably not be able to have windows on the sides due to building code restrictions based
on the substandard setbacks.
c) Denial of garage less than 10' from sewer line. The required set10' setback will result in a
garage only 14' deep, i.e. non-functional.
d) The application should be tabled to allow applicants to re-design.
Gaffron explained that the applicants purchased the property in May 2003 and requested a
number of variances to construct a second story addition and an attached garage. The lot is very
small at just under 8,000 s.f. Lot coverage by structures is over the 1500 sf limit, and applicants
apparently will slightly reduce this by reducing decks by 120 sf while the attached garage will
be about the same size as the detached garage it replaces.
As many issues exist, Gaffron identified 7 primary concerns:
a) The second story addition is partly in the 0-75' zone, and adds additional bulk of structure
nearer the lake than normally allowed.
b) The second story addition is proposed to continue the existing extremely substandard side
setbacks of 4'-5' on the left side and 2.5-3.9' on the right side. These setbacks are so
substandard that the building official has advised that it is likely no windows can be
allowed in these side walls per building codes.
c) The attached garage is proposed to be 4' from the side lot line and extend an already
substandard setback an additional 20' for a total substandard setback extent of 55' along
the northwest boundary.
d) Drainage is a serious concern, as all overland drainage from the rear half of this site flows
toward the neighbor to the north...
e) Hardcover on the property is very excessive and the proposed revisions will result in
minor reductions while yielding what will be a substantially new house.
f) The existing City sewer is shown on the survey as 4' from the proposed garage. The City
normally requires an easement area 10' either side of sewer lines. Whether or not a formal
easement exists for this line, the City will not allow structure to encroach within 10' of
the sewer, leaving the proposed garage too short to be functional.
g) There is no permit of record for the deck on the lake side of the house. The assessor's
records indicate it appeared in the mid-1980's. This may be a non-issue if it remains as-
is, but if it is removed or replace it should be brought into greater conformity...
Gaffron pointed out that both adjacent neighbors have written letters in opposition to the
variances, in addition, a third letter was received by mail that day.
Chair Smith read the opposition letter from Florence Hagberg, 740 North Arm Drive, into the
record.
Page 12 of 22
MINUTES OF THE
ORONO PLANNING COMMISSION MEETING
Monday, June 16, 2003
6:00 o'clock p.m.
(#6 #03-2907 JEFF AND CARA ZIEBARTH, Continued)
Kirk Otteson, 710 North Arm Drive, stated that he had sent a letter opposing the variances and
would remain for comment.
Chair Smith acknowledged that the application had some significant recommendations for
denial.
Ms. Ziebarth distributed a revised set of plans for consideration. She explained that they had
been misled to believe that the lot was 27% larger than it actually was,based on significant
erosion to the lot. She stated that it would not be a spec home as many neighbors have stated,
but their own lake home. Ms. Ziebarth believed their hardship stemmed from the fact that the lot
was substantially smaller than what they believed they had bought and that the lot would
virtually be unbuildable if the footprint was held to 720'.
She shared plans to remove their portion of the shared driveway to reduce hardcover and a new
garage placement which would assist in the proposed drainage plan. By removing a portion of
the deck, she stated they would also fall below the 1500 s.f. structural coverage. She asked which
was most important to the Commission, structural coverage or hardcover.
The Commission indicated that both requirements must be met.
Although she believed there to be significant revisions, Chair Smith stated that the Commission
could not act on something staff has not been given the opportunity to review and that they had
only seen for the first time moments ago. She suggested the application be tabled and that the
applicants continue to work with staff on revisions. She indicated that she would like to see
further reductions in the 75-250' setback zone.
Mabusth indicated that she had difficulty accepting the extremely sub standard side yard
setbacks, and believed the applicants would have to step back the second story addition.
Rahn agreed, stating that he would not support making the setbacks any more substandard in any
direction than they were currently.
Since staff had worked on similar application in the past, Bremer suggested the applicants work
with the planning staff to come to an acceptable compromise. She stated that, in her opinion,the
0-75' setback was more important than a side yard setback variance.
Ziebarth pointed out that the neighbor's peak was 43' tall and towered above their home.
Gaffron indicated that, typically, the City does not grant side yard setback variances less than 5-
10'.
Page 13 of 22
MINUTES OF THE
ORONO PLANNING COMMISSION MEETING
Monday, June 16, 2003
6:00 o'clock p.m.
(#6 #03-2907 JEFF AND CARA ZIEBARTH, Continued)
Mr. Otteson stated that the height of his peak falls within the 75-250' zone and that their home
also is 20-30' from either side lot line. He pointed out that they had to go to great lengths to work
with staff to meet the setback requirements and staff recommendations.
Chair Smith indicated that it would be in the applicants best interest to have the Commission
table their application in order to allow them time to work with staff to review the revised design.
Zugschwert moved,Mabusth seconded, to table Application #03-2907,Jeff and Cara
Ziebarth, 720 North Arm Drive, to allow for review of the new designs. VOTE: Ayes 6,
Nays 0.
(#7) #03-2908 NED AND LORNA BUTTERFIELD, 3745 WATERTOWN ROAD,
VARIANCES, 8:20—8:40 P.M.
Tern Clark and Todd Butterfield, the applicant's children, were present.
Gaffron reported that the applicant has requested lot area and lot width variances to allow an
existing residence to be moved onto the property, which consists of 4.84 acres where 5.0 acres is
required and 185' in defined width where a lot width of 300' is required. He noted that staff
recommends approval of the area and width variances, subject to proof that a suitable septic
system and alternate site can be provided for the proposed residence.
Gaffron explained that the applicants' home was destroyed by fire earlier this year, and that the
applicants wish to replace it with an existing home to be moved onto the property. The home
that was destroyed was nonconforming in location and the new residence is proposed to meet all
required setbacks of the 5-acre zone.
This property had historically been the site of a mixed use: a residential homestead with a
commercial greenhouse operation involving a number of buildings. This use was issued a
"Nonconforming Use CUP" in 1968, which was limited in scope in 1985 by conditions of a CUP
for an additional greenhouse. That 1985 CUP eliminated any retail sales of flowers from the
property.
Gaffron pointed out that in 1996 the greenhouses and auxiliary buildings were removed from the
site, and in 1997 a land alteration CUP was granted to allow up to 2,000 cubic yards of fill to be
placed in the excavation from the greenhouses, and to prepare for a future residence on the site.
While no commercial greenhouse operation has existed on this site since 1996, within the last
year Mr. Butterfield has constructed a small (approximately 30 x 50) frame greenhouse near the
center of the site in which he grows flowers for his contract gardening work. The site appears to
have intermittent vehicle storage activity to the rear which staff has not fully investigated at this
time.
Page 14 of 22
MINUTES OF THE
ORONO PLANNING COMMISSION MEETING
Monday, June 16, 2003
6:00 o'clock p.m.
(#7 #03-2908 NED AND LORNA BUTTERFIELD, Continued)
It should be noted that Commercial Greenhouses are a conditional use in the RR-1A district, and
as a result of inactivity for a period of 6 years, a new commercial greenhouse use on the site
would need a new CUP. Additional review of the current use is necessary to determine whether
it rises to the level of a conditional use, or it may merely be a home occupation(without a home
at the moment) and may or may not require a license.
Since the house was destroyed, the applicants are attempting to finalize purchase of one of the
Silver Meadow Drive homes that has been acquired by MnDOT for the new Highway 12.
Gaffron noted that the applicants indicate they have a short window of opportunity to get the
house moved and would like to store it on the Watertown Road property temporarily while a
foundation is constructed.
With regard to the Septic System, Gaffron stated that the house that was destroyed by fire had
been served with a new mound septic system in 1999, with capacity for a 3-bedroom home.
Applicants plan to re-connect the new home to that system. Staff will have to confirm that this
system has capacity for the new home, and applicants will have to show that there is an alternate
septic site on the property.
After sharing four issues for consideration, Gaffron stated that staff recommends approval of the
lot area and width variances, subject to:
a) Proof of adequate septic system capacity and alternate site.
b) All other standards of the RR-1A zone shall be met by the new residence.
c) Elimination of non-residential uses on the property such as commercial storage, etc.
unless such uses are allowed by CUP or license, in which case the proper approvals shall
be obtained if applicant wishes to continue those uses.
d) Elimination of clutter and debris to match the character of this rural residential
neighborhood.
While there was no public comment, Chair Smith read an anonymous letter of concern, dated
June 13, 2003, into the record.
Ms. Clark stated that her father has often allowed too many people to store too many things on
his property.
Todd Butterfield stated that he had removed all but the snowmobile trailer from the property and
has encouraged his father to say no to additional storage. He indicated that neither he, nor
members of their family, were pleased with what was being kept there.
Page 15 of 22
MINUTES OF THE
ORONO PLANNING COMMISSION MEETING
Monday, June 16, 2003
6:00 o'clock p.m.
(#7 #03-2908 NED AND LORNA BUTTERFIELD, Continued)
Butterfield questioned why neighbors were concerned with the proximity of the home to the
road, since the home would be placed 300' from the road. He also noted that the perk test had
been performed and he would give that to staff regarding the alternate septic site.
Gaffron asked that the applicant obtain a permit for the grading and submit a plan for what's
being done and where the house will be. He asked when the home would be moved.
Butterfield indicated that he did not have an exact date, but he did need to supply MnDOT with a
confirmation that they can move forward.
Linda Cook, 3765 Watertown Road, inquired as to the status of the greenhouses.
Gaffron stated that, if commercial sales was happening on the site, the applicants would need to
file for a CUP to start up, since the CUP had expired 6 years ago.
Butterfield stated that the hoop house is still there.
Gaffron indicated that home occupation is allowed in an accessory structure and that
consideration would be needed to determine what's happening in this 5 acre district to see if it's
an allowed home occupation or CUP.
Rahn moved, Bremer seconded, to recommend approval of Application #03-2908, Ned and
Lorna Butterfield, 3745 Watertown Road, granting area and width variances to allow an
existing residence to be moved onto the property, subject to the proof of an adequate septic
system capacity and alternate site.
Hawn questioned the timeline to place the home, since the neighbors would appreciate a timely
placement of the home.
Butterfield stated that he had been told that the home would be placed in its desired location and
the basement dug out from below, taking a matter of 6-8 weeks.
VOTE: Ayes 6, Nays 0.
(#8) #03-2909 PLEKKENPOL BUILDERS INC. ON BEHALF OF TOM MCGLYNN,
3980 DAHL ROAD, AFTER-THE-FACT VARIANCES, 8:40—9:35 P.M.
Tom McGlynn, the applicant, and Bruce Boeder, his attorney, were present.
Gaffron reported that the applicant requests after-the-fact variances for reconstruction of an
accessory structure within the 0-75' lakeshore setback zone where no such structures are
normally allowed. Gaffron stated that staff recommends denial of the variances.
Page 16 of 22
MINUTES OF THE
ORONO PLANNING COMMISSION MEETING
Monday, June 16, 2003
6:00 o'clock p.m.
(#8 #03-2909 PLEKKENPOL BUILDERS INC. ON BEHALF OF TOM MCGLYNN,
Continued)
Gaffron shared the background related to the application, stating that the existing house on this
property was constructed in 1987, replacing an older home which had been located in the 0-75'
zone. An old boathouse had existed on the property for many years prior to their purchase (a
structure,perhaps not this boathouse, appears in the City's 1955 airphotos at this exact location)
and that boathouse was shown on the survey when the new home was built.
Gaffron explained that the applicants in 2002 determined to restore/remodel the boathouse and
their builder applied for a permit to do so in March 2003. City staff reviewed the plans and
determined that the extensive work proposed was in some respects cosmetic or merely
maintenance, in a few respects structural, and some of the work was considered to be expansion.
The Building Official clearly marked the plans to indicate which items of work could be
approved and which were not allowable. He also met with the builder to explain in detail the
extent of work which was allowed. The value of the work was estimated by the builder at
$20,000.
Gaffron stated that the City assumed that the building would remain in place during the
restoration/remodel, as any work to repair the foundation would be considered as structural,
would not be allowed, and would far exceed `50% of the structure's value at the time it became
non-conforming' which the City had long established as January 1, 1975 when the 75' setback
ordinance was adopted. The value at that time was likely less than $500, although it does not
appear as a separate entry on assessor's records.
Gaffron maintained that it has been the City policy and code intent to eventually have all such
lakeshore structures disappear by attrition; the Code does not allow the construction of new
accessory structures within 75' of the shoreline, and clearly intends to limit the ability to make
major structural repairs to such structures. After issuance of the permit, it was discovered that
the builder had temporarily moved the structure off its foundation and set it up on cribbing
approximately 50' to the south, where it was being renovated. It was also found that they had
replaced the entire foundation of the structure, which consisted of massive posts sunk into the
ground with massive beams upon which the structure sits. They were advised to stop work.
Gaffron reported that staff contacted the City attorney and conferred as to whether the structure
had lost any `legal non-conforming' status it may have had prior to the move. The conclusion
was that if it was placed back on the original foundation(which was now laying in pieces on the
ground) it would likely retain its grandfathered status,but the new foundation clearly would be
`structural alteration' and undoubtedly exceed 50% of the value of the structure in 1975.
Gaffron explained that the applicants were advised of their options and chose to apply for an
after-the-fact variance to allow them to replace the structure on its new foundation in the 0-75'
zone. Gaffron noted that visual observation at the site suggests that the structure was likely
within the floodplain and subject to floodplain regulations.
Page 17 of 22
MINUTES OF THE
ORONO PLANNING COMMISSION MEETING
Monday, June 16, 2003
6:00 o'clock p.m.
(#8 #03-2909 PLEKKENPOL BUILDERS INC. ON BEHALF OF TOM MCGLYNN,
Continued)
After identifying 6 issues for consideration, Gaffron stated that staff recommends that the
variances be denied, on the basis that this structure has been removed and should no longer retain
its status as an existing non-conforming structure. Had the structure remained in place and the
foundation work been accomplished without its removal and with the proper permits, it might
have qualified as an exception. But, Gaffron believed the foundation work was done without
permits and moved 50' away to be restored. He argued that it was moved off its grandfathered
location and should be granted no further nonconforming structure status; therefore, the new
foundation work should be removed and the structure removed from the property, or relocated on
the site to a conforming location.
Boeder stated that permits were issued and work red tagged. After consulting with the City
Attorney, Boeder stated that he agreed it would need to be moved in order to place the plywood
sheeting; however, it would be incorrect to call the foundation new material, as the old posts
were used. Boeder pointed out that Lyle Oman, building inspector himself, had concluded that
this was old material, not new as Gaffron reported.
Boeder read definitions of demolition and destroying, which did not match the restoration effort
they were involved in. He reiterated that it would be inaccurate to call this a new foundation,
and place the boathouse on the mud, since the boathouse never sat on the mud in the past and
should not be required to do so now. Boeder cited letters from neighbors in support of the
application and stated that it was difficult to even locate where the sightlines of the owner who
had objected were in the first place.
Chair Smith asked whether the posts and beams were old or new.
Boeder stated the material was old material and merely new brackets and bolts were used to
support the material.
McGlynn explained that the builder had to move the boathouse from the foundation in order to
place the sheeting. He pointed out that the builder refused to put his workers at risk working with
power tools in the water for safety sake.
Chair Smith asked if the intent was always to put the boathouse back and whether anything was
done differently than originally presented.
Boeder indicated that the building was the same size and windows were added as allowed by the
original plans.
Rahn asked why the dimensions differed on the survey from 20X12' to 14X12'.
Page 18 of 22
MINUTES OF THE
ORONO PLANNING COMMISSION MEETING
Monday, June 16, 2003
6:00 o'clock p.m.
(#8 #03-2909 PLEKKENPOL BUILDERS INC. ON BEHALF OF TOM MCGLYNN,
Continued)
Boeder explained that the survey reflected the post dimensions and that the two northerly posts
were pulled out entirely, and the building would be cantilevered out.
Bremer maintained that, if the City Attorney has made the statement that it is okay to put the
boathouse back on its original foundation and maintain its grandfathered status, and Lyle Oman
has said it is the original foundation, then the point is moot and she would be in support of this
application.
Boeder repeated that the posts and beams are original, and that he went to great lengths to
confirm this with the builder and the workers to ensure he would have people to testify to this.
Rahn questioned why the patio doors exist at the end of the building with no where to go.
McGlynn stated that they were included in the original plans and often times they fish or swim
from these doors.
Gaffron read the ordinance and acknowledged the need to determine the difference between
structural change and cosmetic or maintenance needs. He noted that the ordinance does address
the value of the improvement being less than 50% of the entire value of the structure. He
indicated that both would be difficult to determine.
Bremer stated that it made little sense why the work was halted, since the applicants had the right
to do what was approved. If the Commission follows the City Attorney reading of the application
and the material is old material, Bremer reiterated that the applicants request should be
supported. She recognized the need to revisit the ordinance and consider a code change.
Gaffron indicated that, upon his initial visit, his conclusion was that the foundation was new
material, thus, the reason for it being on the agenda. Since that time, the foundation has been
found to be old material.
Boeder indicated that, prior to restoration, Oman had said the structure was in fairly good shape
and would be there for awhile even without repair. He agreed that, if the intent of the City is to
do away with all of these structure by the water, the code does not say that.
Mabusth asked if the Attorney had submitted any ruling in writing to this application.
Gaffron stated that he had merely verbal ruling and would need to obtain a written ruling on the
matter. He reiterated that the City Attorney had said that, if the boathouse were to be placed on a
new foundation, it would lose its grandfathered status. In Gaffron's opinion; however, the
restoration had gone further than cosmetic or maintenance requirements.
Page 19 of 22
MINUTES OF THE
ORONO PLANNING COMMISSION MEETING
Monday, June 16, 2003
6:00 o'clock p.m.
(#8 #03-2909 PLEKKENPOL BUILDERS INC. ON BEHALF OF TOM MCGLYNN,
Continued)
Rahn stated that the pictures submitted by the applicant do support that the foundation is the
original foundation.
Given the wish of people to maintain these structures, Gaffron stated that the City needs to take a
closer look at the ordinance.
Chair Smith asked if the existing documentation supports what the applicant has done and what
distinguishes it from other applications.
Gaffron felt this to be a tough question, in the applicants favor, Gaffron acknowledged that they
have the documentation to support the work being done to the building. Until that meeting,
Gaffron was convinced that this was new construction, and had since been proven untrue. He
questioned the value of the labor to do the work.
Hawn stated that it seemed there was no variance necessary for the application if the
Commission supports the original approval. She believed the application would be far cleaner if
they did not make it a variance application.
Gaffron agreed, stating that if the Commission believed the work was not structural in nature,
they did have the City Attorney's support.
Hawn stated that they are bound by the City Attorney's comment and should support what's
been done.
Rahn pointed out that less than 50% of the piers were straightened, merely two were removed.
Mabusth questioned whether this would be consistent with past applications. She felt that once
the structure was moved from its foundation, it could be considered new construction. She
believed the City should revise the current codes.
Rahn stated that the code would need to be made more specific and that discussion should take
place in a work session. He reiterated that the work that was performed to the structure was
permitted, the building is being put back on the original foundation, with merely 25%pier
improvement.
Gaffron reminded the Commission that the regulatory flood protection elevation is 932.5'.
Rahn stated that once it is put back on the piers, with the floors, the boathouse would likely be
above floodplain.
Page 20 of 22
•
MINUTES OF THE
ORONO PLANNING COMMISSION MEETING
Monday, June 16, 2003
6:00 o'clock p.m.
(#8 #03-2909 PLEKKENPOL BUILDERS INC. ON BEHALF OF TOM MCGLYNN,
Continued)
Bremer reiterated that the Attorney stated that we are not changing the structure by putting it
back on the original foundation.
Hawn argued that no variance was necessary.
Hawn moved, Zugschwert seconded, to recommend that the variance application is not
necessary and that the City Attorney should provide a written ruling whether the
application should go forward to the City Council. VOTE: Ayes 4, Nays 2,Mabusth and
Chair Smith dissenting.
Mabusth and Chair Smith, having difficulty deciding whether to abstain, support, or dissent,
dissented stating that they felt such action to be inconsistent with previous applications and
actions of the City.
Bremer reiterated that the City Attorney made a ruling, the permits had already been approved,
and the structure was placed back on its original foundation which allowed it to keep its legal
nonconforming status according to the City Attorney.
PLANNING COMMISSION COMMENTS
(#9) REPORT OF PLANNING COMMISSION REPRESENTATIVES ATTENDING
COUNCIL MEETINGS OF MAY 27 AND JUNE 9, 2003
Hawn reported that the Planning items of May 27 were on the City Council's consent agenda.
While most of the applications were on consent, Mabusth reported that the Council denied the
Toth application and approved the Bastiean application.
(#10) OTHER ITEMS FOR DISCUSSION
There were no other issues.
(#11) PLANNING COMMISSION APPROVAL OF MINUTES FOR MAY 16, 2003
Hawn moved, Zugschwert seconded, approving the Minutes of the April 21, 2003, Planning
Commission Meeting as presented. VOTE: Ayes 6, Nays 0.
(#12) SELECTION OF REPRESENTATIVES FOR CITY COUNCIL MEETINGS ON
JUNE 23, 2003 AND JULY 14, 2003.
June 23 —Rahn July 14—Zugschwert (Bremer back-up)
Page 21 of 22
MINUTES OF THE
ORONO PLANNING COMMISSION MEETING
Monday, June 16, 2003
6:00 o'clock p.m.
ADJOURNMENT
Hawn moved,Mabusth seconded, to adjourn the Planning Commission meeting at 9:48
P.M. VOTE: Ayes 6, Nays 0.
There being no further business to discuss, the meeting was adjourned at 9:48 A.M.
r' ''■._S-T•j-41-----
dra Smith, Chair
Page 22 of 22