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HomeMy WebLinkAbout07-22-2002 Council MinutesMINUTES OF THE ORONO CITY COUNCIL MEETING • Monday, July 22, 2002 6:30 o'clock p.m. ROLL The Council met on the above - mentioned date with the following members present: Mayor Barbara Peterson; Council Members Bob Sansevere and Jim Murphy; City Attorney Thomas Barrett; Representing staff were City Administrator Ron Moorse, Planning Director Mike Gaffron, Zoning Administrators Paul Weinberger and Wendy Bottenberg, City Engineer Tom Kellogg, Public Service Director Greg Gappa, and Recorder Kristi Anderson. Absent were Council Members Jay Nygard and Jim White Mayor Peterson called the meeting to order at 6:30 P.M. *1. Planning Commission Interviews Mayor Peterson welcomed the four of five applicants present for the interviews and invited the first applicant to be seated while the others remained in the lobby. Nancy Moe, Applicant - 0 Sansevere asked what interested her in the Planning Commission alternate position. Moe, a resident of Orono since 1964, stated that she was very interested in how the land is used and would like to be a part of the process. Sansevere asked if she had experience in planning for other communities. Moe stated she did not. Sansevere asked if she had seen the Comprehensive Plan. Moe indicated she had not. Sansevere asked if she were to become an alternate would she be available or interested in becoming a regular member. Moe stated that she would be available. Murphy asked what she found attractive about Orono. Moe stated that she believes Orono is a gorgeous community, one they seldom leave even for is vacation. It is accessible to the metropolitan area, has something for everyone, and the parks are beautiful. PAGE 1 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 • 6:30 o'clock p.m. 1. Planning Commission Interviews - Continued Murphy asked if she had any concerns for the future. Moe indicated that her concern is to protect the assets of the community and still be consistent with the planning for the metropolitan area. Murphy asked if she had questions. Moe inquired whether alternates receive packets as well, or if they generally attend meetings to keep abreast of the issues. Gaffron noted that alternates do receive packets. While they are not required to be present at meetings, Gaffron indicated that it is helpful for alternates to attend and become familiar with the issues the Commission is facing. Sansevere asked if Moe had any preconceived notions of the roll. Moe stated that she would work to be consistent as possible. • Sansevere questioned the acronyms of the organizations to which she belonged. Moe stated that AAUW stood for American Association of University Women, the PTSA was the PTA for Southwest High School, and WAMSO was the Women's Association of the Minnesota Orchestra. Sansevere pointed out that, on occasion, openings occur on the Park Commission and he asked if she were not chosen for the Planning Commission at this time, would she have interest in serving on the Park Commission at some point. Moe stated that she had familiarity with the City Council and Planning Commission, but would find that acceptable. Stephanie Zugschwert, Applicant - Murphy thanked her for coming and asked what she found attractive about the Orono area Zugschwert stated that she felt Orono had many attributes, the country rural aspect, the privacy, and the water or lakes within its boundaries. Murphy asked what she foresaw as future problems for Orono. PAGE 2 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 • 6:30 o'clock p.m. 4 1. Planning Commission Interviews - Continued Zugschwert felt the biggest problems facing Orono were development and encroachment, as well as, water quality and ecology. Murphy asked how important it is to know the area. Zugschwert indicated that although she had not lived here long, she was familiar with the area since most of her family lives in Orono. She grew up in Minneapolis and was familiar with Orono growing up. Sansevere asked if she had experience with planning. Zugschwert stated that, while she was not familiar with planning, she has been involved with government at the state legislature level. Sansevere asked what was attractive about this position. • Zugschwert stated that after stopping work several years ago, and since moving, she wanted to get involved once again and embed herself in the community. Sansevere asked if she had seen the Comp Plan for Orono or had any preconceived notions about the position. Zugschwert felt it would be important to weigh each proposal on its own merits based on the zoning ordinances. Sansevere asked if she had any conflicts attending meetings or if Park Commission openings occurred would she be interested if this does not work out. Zugschwert stated she would have no conflicts and would look at the Park Commission. Jule Hannaford, Applicant - Sansevere asked if the applicant had any problem with becoming a regular member if need be later. Hannaford stated that he has interest in the long term. • Sansevere inquired as to what sparked his interest to serve on the Planning Commission. PAGE 3 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 • 6:30 o'clock p.m. L Planning Commission Interviews - Continued Hannaford indicated that he would like to give back to the community. We live here and want to see the quality of our community improve. Sansevere asked what he liked most, or least, about the course that Orono was taking. Hannaford stated that he is very open minded and that his interest lies most in preserving a community with great residential and outdoor qualities. Murphy asked what quality of life means to him. Hannaford indicated that he would not have time to answer the question adequately, however, in his view, quality of life relates to living near the lake and using that resource, living near downtown, and wanting to preserve these things as the community grows and traffic impacts the area. Murphy agreed traffic to be an issue and asked what he would do about Highway 15. Hannaford acknowledged that there is too much traffic there, without a definite answer, he might • try to divert it. With regard to density and zoning, Murphy asked how he would like to see Orono develop over the next 10 -15 years. Hannaford stated he would like to see it develop slowly. Sansevere asked if a position on the Park Commission opened and this one did not work out, would he have interest in that. Hannaford stated that he would be willing to sit on the Park Commission. Rick Windenburg, Applicant - Having expressed interest on serving once before, Sansevere asked why the applicant had done so once again. Windenburg stated that he would like to become more involved in the community and monitor the community expansion as well. Sansevere asked what he liked and disliked about Orono. PAGE 4 of 35 0 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 • 6:30 o'clock p.m. 1. Planning Commission Interviews - Continued Windenburg stated that he cannot pinpoint anything he doesn't like about Orono and has the most issue with the LMCD. Some issues deal with dock rentals by individual homeowners. Sansevere inquired whether he would be interested in serving on the Park Commission if things don't work out here or taking on a regular position on the Planning Commission. Windenburg stated as an alternate he would be willing to move into a permanent role on the Commission and attend some regular meetings in order to be up to date on the information being discussed. Murphy asked if, as someone in the building business, he was pleased with the rate of development in Orono. Windenburg stated that he owns a maintenance business, and is no longer in the building or inspection business. He felt the rate of development seemed to be going at a good pace and control needed to be maintained. • Murphy asked what he felt the strengths of Orono to be. Windenburg stated that the building department is very helpful and knowledgeable. Murphy asked what his concerns for the future might be. Windenburg emphasized the need to stay with growth the City can handle, not too fast. CONSENT AGENDA 1. Approve /Amend Items 16A and B, 18, 19, 21, and 22 were added to the Consent Agenda. Sansevere moved, Murphy seconded, to approve the Consent Agenda as amended. Vote: Ayes 3, Nays 0. APPROVAL OF MINUTES *2. Regular Council Meeting of July 8, 2002 • Sansevere moved, Murphy seconded, to approve the Minutes of the Regular Council Meeting of July 8, 2002. VOTE: Ayes 3, Nays 0. PAGE 5 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 6:30 o'clock p.m. • PARK COMMISSION COMMENTS - Debora Halvorson, Representative Nothing new to report. PLANNING COMMISSION COMMENTS - Sandra Smith, Representative Nothing new to report; however, would like to see the City Council appoint a new Vice Chair when ready. PUBLIC COMMENTS Michael Kuruvilla, 290 Ridgeview Drive, Wayzata, Director and owner of Orono Montessori School, he stated that as owner of Orono Montessori School, which lost its home when St. Andrews Church burned down this spring and had been temporarily located in Wayzata Community Church, they are hoping to relocate to Highway 12 and County Road 6 August 1, 2002. Their current temporary location runs out on July 31, 2002. The building they propose to occupy was previously run as a Little Acorns preschool, however, since vacant for more than six months, he found out new paperwork needed to be filed when he stopped by City Hall. Mr. Kuruvilla stated that this past year has been very difficult for him and his students. They have a school, and children to think of. He urged the City Council to waive the lengthy paperwork in order for them to move in on August 1. Gaffron confirmed Mr. Kuruvilla's statement, indicating that the building had been vacant for eight months. Built as a preschool run by Open Arms and then Little Acorns, the Montessori school proposed to occupy this space until the Church could rebuild. Since the previous CUP lapsed at six months, the new school will be required to file for a new CUP, however, the City Council would not be able to grant formal approval for that CUP until its August 28th meeting, well after the Montessori school has lost its current lease. Gaffron indicated that the City Council could allow the Montessori school to move in while they go through the CUP process. Gaffron added that Lyle Oman had visited the building and saw no obvious problems with the CUP. He continued that this short-term use would be good for the community, the children, and, since the Church will be rebuilding over the next 1-2 years, this space offers a good location for the school. In fact, Gaffron noted the Otten building will be taken as part of the Highway 12 expansion in 1 -2 years anyway. Murphy questioned whether Gaffron foresaw any imminent reason to reject the CUP request. Gaffron stated that this proposal provides a good potential short-term use for this facility, which unfortunately was caught up in the paperwork. Attorney Barrett reminded the Council that the ordinance states that the applicant must still go • through the CUP process. Sansevere asked if they could allow the school to occupy the space while they were in process. PAGE 6 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 • 6:30 o'clock p.m. PUBLIC CONIMENTS - Continued Barrett stated that while it could be allowed, the Council needs to make it clear that the permit could still be denied if something showed up unexpectedly. Sansevere indicated that, while emotionally he wanted to do what he could for the kids and the school, he needed to learn what the legal suggestion would be. Barrett stated, once again, that the City Council had employed the right to waive the paperwork temporarily to allow the applicants to move in, but required the permit to be completed in a timely fashion. Murphy asked if staff could foresee any code problems. Gaffron indicated that the proposed Montessori School meets all the zoning requirements, the building allows 60 students, while the school has 56, they are not offering a school lunch program, there will be no changes to the facility, and the school found all conditions acceptable. Mr. Kuruvilla stated that all of the inspections are underway in order to meet the move in date of August 1, 2002, and so far the Fire Marshall and building inspections have been okay. Mayor Peterson stated that she had no problem allowing them to move into the building in 10 days while they go through the CUP process. Murphy pointed out that the City finds itself in a unique situation and has been given the rare opportunity to do something for the kids. Murphy moved, to grant a temporary Conditional Use for the purpose of opening the Orono Montessori School pending approval of the formal process, with the understanding that if the City Council determines not to grant the permit this temporary use may be revoked. Mr. Kuruvilla asked under what condition the school might be asked to move. He reiterated that this past year had been very difficult, losing their home to arson and then being asked to move from a temporary location. He stated that they had been through quite a bit and would like to feel comfortable that they have found a semi - permanent location. Murphy indicated that it is the City Attorney's job to look out for the City's interests, however, he believed the Council was committed to doing everything they could to lessen the burden for the school. 0 Mayor Peterson seconded the motion. VOTE: Ayes 3, Nays 0. PAGE 7 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 • 6:30 o'clock p.m. ZONING ADMINISTRATOR'S REPORT *( #4) #02 -2769 MARK AND PAM PALM, 1447 PARK DRIVE, VARIANCES - RESOLUTION NO. 4831 Sansevere moved, Murphy seconded, to approve and adopt RESOLUTION NO. 4831, a Resolution granting hardcover variances in the 75 -250' zone and 250 -500' lakeshore zones, and variance to permit a 5' setback where 10' is required for the construction of a new 22'X34' detached garage to replace an existing garage on the property located at 1447 Park Drive. VOTE: Ayes 3, Nays 0. *( #5) #02 -2776 HENNEPIN COUNTY, 3880 SHORELINE DRIVE - RENEWAL VARIANCES AND CONDITIONAL USE PERMIT - RESOLUTION NO. 4832 Sansevere moved, Murphy seconded, to adopt RESOLUTION NO. 4832, approving variances and a conditional use permit for Hennepin County to construct a 7,200 s.f. salt and storage building and a stormwater management pond on the property located at 3880 Shoreline Drive. VOTE: Ayes 3, Nays 0. *( #6) #02 -2786 JOHN R. JONES, 3490 NORTH SHORE DRIVE, VARIANCES - . RESOLUTION NO. 4833 Sansevere moved, Murphy seconded, to adopt RESOLUTION NO. 4833, a Resolution granting variances for lot area, lot width, and hardcover in the 75 -250' setback to exceed 25 %, the Resolution also approves a 20' wide driveway and 60 s.f. sidewalk to the west -side entrance, to permit new construction on the property located at 3490 North Shore Drive. VOTE: Ayes 3, Nays 0. ( #7) #02 -2791 DAVE AND JODI RAHN,1385 REST POINT ROAD - VARIANCES - RESOLUTION NO. 4834 Weinberger reported that the applicants have applied for variances to permit construction of a 24' X 24' attached garage. The addition would include enclosed walkways intended to attach the proposed garage to the house. Variances are required to permit new structure and hardcover within 75' of the lakeshore and additional hardcover within the 75 -250' lakeshore setback. Previous variance applications for Rahn included; a 1997 variance to allow additional hardcover for an addition within the 75' setback, since a finding made at that time found that a large portion of the center of the property was within the floodplain, and a 1998 variance for a detached garage. Weinberger explained that in October 1998, Jim Hafner, a Technician for the MCWD, found that the property was not directly connected to the 100 -year floodplain. PAGE 8 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING • Monday, July 22, 2002 6:30 o'clock p.m. ( #7) #02 -2791 DAVE AND JODI RAHN,1385 REST POINT ROAD - VARIANCES - Continued Weinberger reported that the Planning Commission approved the application 6/0, subject to removal of the old driveway, stairway, and concrete walk. In the Planning Commission's opinion the property was fully developed. Staff observed that the new proposal was a net increase in overall hardcover of 866 s.f. over that which exists, and 1106 s.f. over that which was allowed by previous approvals. Weinberger pointed out that the application is, essentially, an increase from 30% hardcover, where 25% is normally allowed, to 41.9% after even the removals recommended by the Planning Commission. While the Planning Commission and staff agree that an attached garage is a reasonable proposal, staff was unclear why the Planning Commission did not require that the existing detached garage be removed in order to keep hardcover on the site at a minimum level. Staff recommended approval of the variances for the new addition per Planning Commission's recommendation, but given the history of the property, questioned whether there was valid hardship for allowing the existing 400 s.f. garage and 80 s.f. of apron to remain. • Sansevere observed that staff had used strong language in its recommendation, and questioned Sandra Smith, Planning Commission Representative, what transpired at the last meeting with regard to this application. Smith stated that the 6/0 vote came after lengthy discussion, and reworking of the hardcover percent, after removals, to 25.3% within the 75 -250' setback. The Commission found this acceptable, especially in light of the floodplain findings of 1998. The Commission's view was that because the City had told the applicant of the floodplain, they rushed into development, and did not propose what they might have had the floodplain not been there. Rahn added that the walkway between the house and existing garage are actually mulch. He pointed out that he is below the 15% allowed structural coverage and not looking for a structural coverage variance. The home, with 168 s.f of small decks, has no concrete patios, and no need for structural coverage variances. Rahn maintained that the only applicable variance is the one proposed for additional hardcover. He stated that in 1997 they were limited in design by what they thought was a floodplain, and that is why the home is on one side of the lot and the garage on the other. Sansevere asked staff if the original garage had been attached and the applicant was asking for a 24X24' addition to that garage, how would staff have handled that and would it still have been a hardcover issue. • Weinberger stated that there would still be a hardcover issue. In fact, to clarify the hardcover, the 25.3% hardcover was for the entire lot, and you are allowed 25% in the 75 -250' setback, so PAGE 9 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 • 6:30 o'clock p.m. 07) #02 -2791 DAVEAND JODI RAD7V,1385 REST POINT ROAD - VARIANCES - Continued actually, the area as proposed is about 41 %. To answer the question, would staff have supported this, there are other approvals in the neighborhood that have more hardcover than this lot, with somewhat recent approvals within the past five years. However, in most of those cases the property owners did not actually increase the amount of hardcover on their property, but instead were likely allowed to trade existing hardcover, that existed prior to the ordinances, in order to trade -off for new hardcover. This said, Weinberger stated that staff would not necessarily have recommended approval just because they did not have 15% structural coverage. Weinberger maintained that hardcover and massing are important elements to think about, because if every lot were allowed to develop to 15 %, there would be no need for the hardcover ordinance. Murphy asked why, in past variances, were they told in such strong language they could not have any additional hardcover ever. Murphy asked how the applicant planned to use the existing garage that would become a shed. Rahn indicated that it was his intention to remove the existing driveway. The garage would maintain its overhead door and likely become storage for a car or boat. Green space or mulch would occupy the space where the driveway had been and they would bring the boat or car out a couple of times a year. He stated that the driveway was class 5 and would likely be difficult to remove even after digging down three feet, but they would do so. Murphy asked if class 5 was considered hardcover. Weinberger stated that class 5 is considered hardcover, if it is driven on and compacted by vehicles. The applicant would be required to remove the class 5 and replace it with grass. Murphy asked if the garage would still be considered a garage and hardcover as a function of the applicants continued use. He questioned whether the City allows a garage to sit in the middle of a property with no bituminous roadway to it, but allow access to it, and the access not be considered hardcover. Weinberger stated that these exist, as in the case of pole buildings. The idea is that if the building does not have a driveway, the City has not considered it a garage and it has not been a concern. With the situation on this property, and in past history, where you have a garage that looks like a garage, the City has found that people will tend to plow them in winter and use them as driveways and garages. That would be staff s concern. He noted that if the building were actually converted to something else, without a garage door, that would eliminate that concern. Murphy asked why it was stated that no additional hardcover shall ever be allowed. • PAGE 10 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 6:30 o'clock p.m. ( #7) #02 -2791 DAVE AND JODI RAHN,1385 REST POINT ROAD - VARIANCES - Continued Mayor Peterson stated that although she was present at those meetings, she remembers most vividly the discussions of 1998. She believed that when he last came before the Council there was an animated discussion with regard to the detached garage around the floodplain. She had voted in favor of the additional hardcover for the detached garage in 1998, with the stipulation that she would not allow any more hardcover on that property. She stated she would stick to that position tonight and not vote in favor of what he was proposing. She stated that she would be more agreeable to his proposal if he were removing the existing garage and driveway, and replacing it with the new garage attached to the home. Rahn asked to explain what he believed happened, with regard to the approvals, but first, he reminded the Council that he had not been the one to consider this property in the floodplain, but it was the City that had determined it on their topography map. The City had informed him it was a floodplain, which is one reason he had been limited in obtaining his 15% structural coverage. The other reason, he believed, was that the property was presented as a minimum square foot lot. The house and lot were planned at 1490 s.f., to fall under the 1500 s.f. allowance, when in fact, Rahn maintained the lot should be allowed 2200 s.f. He stated that the lot next door was built just last year and was allowed 700 s.f. more hardcover on a lot that is 2000 s.f. smaller than his. Rahn disagreed with Mayor Peterson's position that she did not support his proposal, when in his view, there were totally new findings since 1997 -1998 with regard to the floodplain. If this were a 1500 s.f. property, Rahn felt the approvals and limits made sense, however, Rahn maintained that the property should have been viewed as 2200 s.f. in light of the new findings. He asked what part of the zoning ordinance he was missing which limits structural coverage beyond the 15 %. Mayor Peterson maintained that she did not think they were talking structural coverage, but hardcover. Rahn stated that they were asking him to remove structural coverage and not hardcover. Mayor Peterson stated that her issue was with the fact that they have more than 25.3% hardcover. Rahn pointed out that, if the issue was hardcover, the City should take a look at his neighbors. The new next door home to the south was allowed a total lot cover of 23.5 %, almost a full % more than he was proposing at 22.6 %. He maintained that, in fact, if he took the same percents that were allowed on the lot next to him, and used them on his lot he would be allowed 34.45 %, when what he is proposing is 31.4 %. The home across the street was allowed 29.8% total lot hardcover, whereas this is proposed at 22.6 %. He added that the home down from him was • allowed both 31.4% cover and to exceed his structural cover by 500 s.f., when in fact, the lot is smaller than his by 1500 s.f. and has 700 s.f. more hardcover. He stated it was never indicated during any of the meetings he attended that the neighbor's proposal had excessive coverage. . - PA-GE-1 I of35 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 6:30 o'clock p.m. 07) #02 -2791 DA YE AND JODI RAHN,1385 REST POINT ROAD - VARIANCES - Continued With this in mind, Rahn stated that, frankly, the strong language used in his approvals surprised him as well in comparison. If anyone should have been allowed more hardcover or structural coverage, Rahn maintained that it should have been his lot. As stated in the ordinance, hardcover limits are set to stop the rapid runoff of water, his lot has the required low -lying area to catch the runoff properly. He believed that the home next door and his, truly, should have been flip flopped with regard to what should have been allowed. Rahn continued that the homes next door and across the street tower above his in mass by 20'. He could not understand why he had been allowed a mere 1000 s.f footprint, while all of the homes around him had been allowed to tower above his. He stated that what he was hearing from the Council was that he would not be allowed the structural coverage that everyone has and more. Rahn reiterated that he would like to be allowed the same rights as his neighbors. He stated that because he has nothing else to remove from his property, no excessive hardcover, porches or patios, the City is now asking him to remove structural coverage. Murphy stated that he did not feel he was asking the applicant to change the existing shed, but now that he's been told that they plan to use it as a garage, he questions the applicant's intentions. Rahn stated that the shed would be used in that regard. His intention is to keep the shed for storage, storage of snowmobiles, boats, whatever is necessary. Now the City is telling him that he cannot store his property there or drive on his lawn. He indicated that he pulls on the lawn to wash his car and that is not considered a driveway. Sansevere asked if there were any change in staffs position after hearing Rahn's statement. Weinberger stated that there was not necessarily any change in staff s position, and maintained that when some of the previous approvals were done and these homes were allowed to go up a certain percentage, they often had to remove hardcover to do so. Mr. Rahn seems to be requesting to be allowed 15% lot coverage and whatever hardcover is necessary to support it. Weinberger noted that the neighboring lot the applicant referred to had included the combination of two lots and removed driveways etc.; he agreed the current home does exceed 15% and hardcover limits. Weinberger asked if Council's position is going to be that everyone is allowed up to 15% of their lot area to be structure, regardless of the hardcover impacts. Sansevere asked if the neighbor would have more hardcover than he does if the shed remains. Rahn stated that the neighbor is at 23.5% and he is at 22.6 %. Rahn maintained that his lot is • larger than the neighbors, but yet the neighbor has been allowed more than he has. Rahn reiterated that for a long period of time this lot was viewed as a 10,000 s.f lot, due to the PAGE 12 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 6:30 o'clock p.m. ( #7) #02 -2791 DAVE AND JODI RAHN,1385 REST POINT ROAD - VARIANCES - Continued floodplain, when in fact it is a 15,000 s.f. lot, and one of the largest lots on the street. He repeated that, in comparison to the most recent variance, he should be allowed at least what the next door neighbor had been given. Murphy asked if the applicant had water problems or if water accumulates on his property. Rahn stated that in heavy rains, the water ponds near the lake. During heavy periods they have been able to pump the water into the lake. The water near the garage runs down the gutters, goes thru the drain tile, and is sent down the street. Gaffron pointed out that anything removed needs to be filled with dirt and grass, and reiterated that the issue Council is dealing with here is purely the issue of hardcover, it has nothing to do with lot coverage. Lot coverage is not a privilege, it is a limit you are held to, 15 % on a lot less than two acres. You are also limited by percentage of hardcover, and are not guaranteed 15% lot coverage at the expense of having hardcover in the range of 30 -40 %. There may be a number of applications that fly in the face of that. He questioned whether Council were comfortable with increasing from 30% to 41 -42% hard surface in the combined 0 -75' and 75 -250' setbacks. Gaffron stated that the applicant made a valid point that if all his drainage runs to a spot on his property where it has to soak into his property he is probably meeting the ultimate intent of the hardcover ordinance.. The City needs to keep in mind the original intent of the approvals, the applicant has come to the City asking to add an attached garage, but let me keep the old one. From staff perspective, this is adding hardcover that is perhaps unnecessary and could be mitigated by adding more storage space by making the attached garage addition a little bit bigger. Gaffron stated that not removing the existing garage, seemed inconsistent with what the intent of the City's hardcover ordinance had been in the past. Rahn asked if the Council was requesting that he remove the overhead door and limit the garage to storage of things that could not be driven in. Although that would be Murphy's recommendation, Mayor Peterson stated that she would rather see the structure removed. Rahn asked why he would tear down 800 s.f. of garage only to be replaced with a 20'X20' new garage. He would be giving up significant storage space. Rahn reiterated that had the floodplain designation not existed, the house would likely been moved to different location, or rebuilt elsewhere with an attached garage versus the detached garage. . Sansevere empathized with the applicant's position, asking whether the Council should take the floodplain designation into account when considering this application. He believed the detached garage was built in its current location due to the floodplain concerns. PAGE 13 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 6:30 o'clock p.m. 07) #02 -2791 DAVE AND JODI RAHN,1385 REST POINT ROAD - VARIANCES - Continued Rahn insisted that he had supplied the City with new findings with regard to the floodplain to support his application for the attached garage and urged the Council to factor this into their consideration. When he first applied for variances, it was the City's own topo map that indicated the floodplain, therefore, he designed his proposal around that feature. He asked what would lead him to question the City's topo map, he believed the City had supplied him with accurate information. Only when he looked into purchasing flood insurance and invited the MCWD to look more closely at his property, did he learn that there was obviously no connection to the lake, which coupled with the elevation did not equate to a floodplain. He questioned whether it should be the resident's responsibility to challenge the City's resources. Sansevere asked staff if there had ever been any precedent set where a resident had built using misinformation, and if so, what had been done to right the situation. Gaffron stated that he had reviewed the minutes from the 1997 and 1998 meetings, and argued that the application started out as an addition and rebuild. He questioned the intent of leaving the home in its current location all along. Rahn argued that he had looked into other possibilities, but once he had learned of the floodplain delineation, why would he have proposed the house in a location the City would not have allowed him to build. Rahn questioned why he would have ever been willing to swap the high ground for the low ground, thinking there was a floodplain. Weinberger asked what prompted Rahn to contact Hafner of the MCWD. Rahn repeated that he had begun to investigate the need for flood insurance and found out that the elevation alone did not define floodplain. He questioned how the floodplain delineation was never resolved back when City staff visited the property. Rahn could not understand why staff didn't make the connection when they walked the property back in 1997. Sansevere asked for Administrator Moorse's comments. Moorse stated that first it was an addition to a small cabin, and then the applicant needed a detached garage, both of which maxed out the hardcover. Now the applicant would like a second garage without removing the existing garage. Sansevere asked, once again, if the misinformation about the floodplain should be factored in or if this was germane. While it makes sense to allow the attached garage, Moorse questioned the hardship for keeping • the other garage. PAGE 14 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 6:30 o'clock p.m. ( #7) #02 -2791 DAVE AND JODI RAHN,1385 REST POINT ROAD - VARIANCES - Continued Rahn stated that the hardship was the hazardous condition backing out of the driveway created. Sansevere asked what the hardship was for keeping the existing garage. Rahn stated that, up until the very last minute of the 1998 meeting, Rahn had believed that he had an additional 1000 s.f. At the last minute, Gaffron asked that hardcover in the 0 -75' setback be added to the 75 -250' hardcover when factoring hardcover. Rahn pointed out that the home meets the average lakeshore setback and at that moment, he lost 1000 s.f. Murphy questioned why the City ever allowed the garage to be put where it was if it were in such a dangerous position. Obviously, the garage was placed there to avoid the floodplain, but Murphy asked why it was moved up the hill. Rahn stated that they moved the garage to the top of the hill in order to allow for storage underneath. 10 Sansevere asked if the current garage is still considered impractical and unsafe. Rahn indicated that the garage /shed would be used for storage. There is a definite lack of storage on this property, and in this area, he questioned how he could remove the garage or make it unusable when it was valuable space. Valuable space that many smaller neighboring lots have been allowed. Rahn asked if he could change his proposal by removing the proposed driveway and calling the proposed garage, simply, an addition instead, whereby keeping the old garage. He stated that it is the need for a new lengthier driveway, which puts him over on the hardcover, not the structure itself. Mayor Peterson asked how this would affect his hardcover in the 0 -75' and 75 -250' setback, respectively. Weinberger noted that they would lose 2' in the 0 -75' setback (19.5 %) and the 75 -250' setback where it is at 16% now, would be at 25.3 %, an increase of 703 s.f. Rahn stated that he could supply them with comps from across the street if the Council was interested. • Sansevere asked staff where there was consistency, by allowing the shed to remain would they be consistent, or would this be precedent setting. PAGE 15 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 6:30 o'clock p.m. is 07) #02 -2791 DAVEAND JODI RAHN,138S REST POINT ROAD - VARIANCES - Continued Rahn stated that this is an unusual case, one that you might see once in 20 years. Gaffron maintained that the City had typically held people to 25% in rebuilds in most cases. While they had gotten away from the 25% figure for a time, over recent years the Council has been much more strict. He stated that, obviously, they were not as strict on the neighbor next door, however there are nuances and exceptions to every application. Since his comment from the minutes became part of the resolution, Gaffron felt it would be in the City's best interests to see the 20'X20' garage disappear. Consistency, in this case, must rely on replacing the old garage with the new garage. Murphy asked if the new garage addition could be reconfigured to add additional storage space that might be lost by removing the old garage. Rahn stated that it would be difficult to build enough space into the addition to justify the removal of the two -story garage. Sansevere questioned why, or whether, the City had been more lenient on his neighbors than they had on him. Gaffron stated that, if forced to address that question, he would have to say that considering what was given to the applicant's immediate next door neighbors, the City is being more strict on Mr. Rahn than what past Councils might have been. Rahn argued that he had presented the City with a huge finding with regard to the floodplain that affected more than 1/3 of his property. He stated that this originally was a rebuild, but even so, it met and meets the average lakeshore setback. Murphy asked Rahn, as a Planning Commissioner, whether he would have approved this application. Rahn stated that he would have done so. After looking at the 15% lot coverage, the Commission typically looks at the existing footprint and how alterations can occur with the least minimum impact. Murphy asked if the 25.3 % hardcover figure reflected the removal of the driveway. Gaffron maintained that the 25% in the 75 -250' has no relevance to the total lot. The applicant is not allowed 25% coverage of his total lot, he is allowed 25% in the 75 -250' setback, minus what he has in the 0 -75' setback, based on old resolutions. All that the removal of the existing driveway from the 20x20' garage does is reduce the hardcover down to something that could be PAGE 16 of 35 0 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 6:30 o'clock p.m. 07) #02 -2791 DA VE AND JODI RAHN,1385 REST POINT ROAD - VARIANCES - Continued reasonable. Gaffron stated that it is up to the Council to decide where he has met the reasonable standard and because the City has been inconsistent within the past few years with what it did the past 15 years before that, it was difficult in his mind to treat this as something that happened two years ago when there were commitments made on it five years ago. Rahn asked how the City could look at he and his neighbor's lot, which is a couple of hundred s.f. less than his, and say that he was not being held to a higher standard than they were. Mayor Peterson asked for clarification whether the project had started out as a rebuild or a renovation. Gaffron noted that this started out as a renovation and came back in as a rebuild. Rahn stated that, what it boiled down to, was that there was not much left worth saving, and the foundation would have required a great deal of engineering. Gaffron stated that it was concluded at that time that there was no other place to put a house, so they were told to go ahead and finish it off rebuilding it in the present location without a garage. A year later the City was asked to allow them to build a detached garage out of the floodplain on the hill with a short driveway that minimized hardcover etc. Sansevere asked if the applicant was still operating under the misinformation. Gaffron stated that they were. Since then, now that they have learned the floodplain is no longer floodplain, he has proposed a new driveway and new garage, that in the City's mind replaces what was approved in 1998, but he is not willing to remove that in exchange, due to storage and value it has to him. Gaffron pointed out that the question remains, is the applicant over in hardcover and are there things that could be removed. It would be consistent to remove things that are considered excess hardcover. If the Council concludes that the 20X20' garage itself is not excess hardcover, or although precedent setting, he could mitigate the impacts of runoff from the garage structure by letting it soak into the low spot in the ground that doesn't get directly to the lake but gets filtration before it gets there, then there is some logic in leaving it there. Sansevere stated that he was grappling with the fact that the garage was put there based on information about the floodplain. Now with new information, the applicant is trying to relocate near the house, where it would have appropriately been put originally, had they not believed it were a floodplain. • Rahn stated that he was correct. PAGE 17 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday,. July 22, 2002 6:30 o'clock p.m. 07) #02 -2791 DAVE AND JODI RAR7V,1385 REST POINT ROAD - VARIANCES - Continued Sansevere stated that the applicant went to an expense and a cost based on the information he was supplied with. If it had stayed a floodplain, the applicant would not even be here today. Rahn reiterated that the whole design in concept would have been different from what has been done, if the floodplain had not been there. He stated that, quite obviously, they had planned everything around the floodplain and were bound by it. Sansevere asked what the Planning Commission felt with regard to the floodplain. Smith indicated that the floodplain became an integral part of their discussion. In fact, she stated that her closing comments were that the Commission had learned quite a bit about floodplains in this application and will hopefully not have to face this difficulty again, but will have a better understanding if they do. While it didn't resolve this applicant's particular situation, she stated that it was part of their discussion. Sansevere stated that, while he might not have voted to allow the additional 20X20' garage today had he been granted the attached garage back in 1996, the fact that he built the existing garage Is based on information he was given from the City, added a gray area for his consideration. Weinberger stated that because he had limited hardcover to work with in 1998, this was another reason the garage and short driveway were built in that location to begin with. Weinberger contended had they looked at the position of the driveway today, they may have reconsidered its location due to the difficulty in maneuvering. Sansevere questioned the City Attorney if it would be out of line to use the gray area pertaining to the misinformation when considering this application, or should he put this issue completely aside and only consider the hardcover issue of keeping this garage. Legally it may have nothing to do with the fact that, because he was given bad information, the garage was put there in the first place. Barrett stated that the floodplain argument might distinguish a decision from other ones, but the question of whether the garage should be removed or not, with respect to hardcover, is one that offers a pretty strong argument, and one that has been adhered to in order to keep to hardcover limits. Legally if you do decide to do it, you could cite the floodplain error as the reason. Otherwise Barrett suggested they require the old garage be removed before the new one is built with regard to hardcover, and not structural coverage. Rahn stated that the Planning Commission only recently approved a hardcover variance across the street from him. PAGE 18 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING • Monday, July 22, 2002 6:30 o'clock p.m. ( #7) #02 -2791 DAVE AND JODI RAHN,1385 REST POINT ROAD - VARIANCES - Continued Barrett stated that he was unfamiliar with the application, but guessed there might have been some mitigating factors that allowed those variances. Mayor Peterson asked, with regard to consistency, whether at some point couldn't everyone in the City come back and say you let my neighbor do this twenty years ago. Weinberger noted that he had looked at approximately six neighboring properties, and noticed that in most cases there were mitigating factors. Rahn stated that although the Council was aware of the neighboring properties, the question remains whether the City will allow 15% structural coverage when you have minimal hardcover. He stated that he could have drawn the application with excessive hardcover in order to allow them to have something to remove, but he didn't do that. He felt that he drew the plan based on the bare minimum, which was where the struggle was, there isn't really anything for the City to remove other than structural coverage, which goes back to his argument that it is the structural coverage that he believed he is short on. The footprint on the house is barely 10,000 s.f., whereas the neighbor's home is towering above him right off the property line on a smaller lot than his. Originally he was approved to do some remodeling and realized that the work required much more, Weinberger questioned what impact the floodplain had on his decisions. Had he known the floodplain did not exist, and he needed to move the home further from the lake, would that have been a consideration for him. It would have reduced hardcover to do that. Rahn stated that had they known this, even though it met the average lakeshore setback, they would have likely moved the home 20' back, so as not to be crowding the lakeshore, and had an attached garage. Rahn stated that to not consider the floodplain debate an issue would be unfair, since it is obvious that the floodplain impacted the whole design. Murphy stated that he struggled with the value of tearing down the shed, although he found the hardcover issue compelling. In exchange for leaving the existing shed, from his position, Murphy was inclined to leave the shed and invite Rahn to come back with a reconfigured shed, unusable as a garage, but still valuable storage area, with the overhead door and hardcover around it removed. Sansevere asked how this would impact hardcover. • Rahn suggested removing the apron, a mere 100 s.f. PAGE 19 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 6:30 o'clock p.m. 07) #02 -2791 DAVE AND JODI RAHN,1385 REST POINT ROAD - VARIANCES - Continued Sansevere asked if this would be acceptable to staff. Gaffron acknowledged that this slightly affects hardcover. Murphy stated that this is the nearest compromise Rahn will get. If the floodplain issue had not been part of the equation, Murphy stated that he would have supported staffs resolution. Sansevere stated that he still grappled with the floodplain issue. Rahn questioned whether it was Council's intention to maintain a 10,000 s.f. standard for a nearly 14,000 s.f piece of property and literally just have the footprint of the house and maintain the 25% hardcover, that seems unrealistic. He maintained that, over the past five years, the City had not denied lots their 15% structural coverage. There may have been applications that have come in that have not requested their full 15 %. He questioned whether an applicant should be penalized for not building their lot up to its potential the first time through. Mayor Peterson agreed that they should not be penalized, but this situation has to do with the hardcover issue. Again, Rahn stated that the lot next door has a higher percent of total lot hardcover that drains into the lake. His lot has a lesser percent of hardcover, that's held in a storage area, which a section in the zoning code encourages ponding. While he could not identify the section, he reiterated that the code encourages just what he has, water storage areas. Mayor Peterson asked if Rahn were not agreeable to going back and coming back with a redesigned garage. Sansevere questioned whether the City encourages its residents to sump pump water into the lake. Rahn indicated that sump pumping does occur. Murphy moved, Mayor Peterson seconded, to approve and adopt Resolution No. 4834 granting variances to allow an attached garage and walkway to the existing residence, with the conditions that the existing garage be reconfigured in such a way, to City staffs satisfaction, that it will not serve as a garage, but as storage only. Furthermore, all runoff from this 400 s.f of hardcover will be directed to the low level area of the property where it will be allowed to soak in, and finally, all existing hardcover around the building will be removed to City's satisfaction. PAGE 20 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING • Monday, July 22, 2002 6:30 o'clock p.m. ( #7) #02 -2791 DAVE AND JODI RAHN,1385 REST POINT ROAD - VARIANCES - Continued Mayor Peterson asked Mr. Rahn if this would be acceptable. Rahn felt he could at least work with staff to make it feasible. Sansevere asked how difficult this decision will make other decisions and applications that come before the Council when residents cite this property, for instance, in order to be held to a different standard. He questioned whether they could site the floodplain misinformation in the resolution and wondered how many more of these cases there might be. Gaffron maintained that this property is unique. Barrett suggested that the two things they have cited, which are the rerouting of the water via ponding without sump pumping into the lake, together with the conclusion that the hardcover is going to be varied here in view of the error with respect to the floodplain, those two circumstances help mildly distinguish the result. • Weinberger indicated that there are always going to be unique circumstances. Smith asked if more hardcover lends to the dilemma of accumulating water in the water collection area. Rahn stated, as indicated in the code, that a suitable level of ponding would be required to manage floodplain management. Sansevere had further concern with regard to sump pumping. Weinberger stated that between now and the August 12th meeting Rahn and staff will need to determine how much runoff will head to the low area, what the capacity is, and if it is determined there is too much capacity, then there might be a hardcover issue. Weinberger noted that the resolution could be contingent on the results of this evaluation. Sansevere stated that he based his vote solely on the misinformation about the floodplain VOTE: Ayes 2, Nays 1, Mayor Peterson dissenting for reasons cited earlier. PAGE 21 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 • 6:30 o'clock p.m. ( #8) #02 -2793 REVIS STEPHENSON,1850 FOX RIDGE ROAD - AFTER - THE -FACT CONDITIONAL USE PERMIT AND VARIANCES As Council was familiar with the background for this application, Weinberger indicated that he would share with them the findings since the last meeting. Weinberger reported that this item was tabled by the City Council on July 8, 2002, at the request of Mr. Stephenson to allow his consultants to review the location of the wetland boundary. Ron Peterson, of Peterson Environmental, was hired by the property owner to do the wetland delineation and analysis. Weinberger noted that Mr. Peterson acknowledged that there had been areas on the property where an encroachment on the 26' wetland buffer occurred, however, Weinberger did not have copies of the report in time to include them in the packets. According to the most recent findings, Weinberger stated that Mr. Peterson depicted the wetland delineation further to the east than that of the December report. Although they were waiting for verification by MCWD, Weinberger believed the analysis to be accurate due to the December snow cover. Weinberger pointed out that, previously, it looked as if the entire width of the property had impacted the buffer zone. If the new delineation is accurate, only the mid point, 300 s.f., was truly effected. He added that due to settling, the slope is closer to the approved 3:1 slope. 0 Weinberger indicated that the property owner had installed all the vegetation for erosion control on the actual grade, including grasses approximately 1' tall that have been reestablished from the end of the yard to the buffer zone area. He stated that when he recently visited the property, he counted approximately 18 trees planted in the back yard so far averaging a height of 10 -12'. Weinberger stated that the Planning Commission recommended denial of the application on a 6/0 vote to permit an after - the -fact variance and conditional use permit for land alteration within 26' of the wetland, the denial included any alteration beyond the previously approved elevations. As the slope is closer to a 3:1 slope, the minor impact to the wetland buffer is a mere 300 s.f. Weinberger stated that there are four options for City Council to consider: approving the application as is with the addition of extensive planting and screening for neighbors; approve an amendment to the conditional use permit requiring the applicant to remove any fill that had been added within 26' of the wetland and move the hill back; approve a combination of option 1 and 2; or deny the application and require the finished grades to match the approvals granted in the original Conditional Use Permit. Upon meeting with Mr. Peterson at the site last week, Weinberger stated that Rene Schubert of MCWD was present. They had talked about, if the grades were approved as they exist, staff would recommend that there would be fairly intensive vegetation plantings on the property and hillside. While the grasses work pretty well for erosion control, Weinberger contended that PAGE 22 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING . Monday, July 22, 2002 6:30 o'clock p.m. 08) #02 -2793 REVIS STEPHENSON,1850 FOX RIDGE ROAD -AFTER-THE-FACT CONDITIONAL USE PERMIT AND VARIANCES - Continued additional trees would certainly help the erosion control issue and give a more natural appearance to the area and also recommended more intense plantings in the flat area leading to the neighbors. He reminded the applicant, however, that if any plantings would be considered that go over neighbor boundaries, they need to get consent from those individual neighbors. This might help to mitigate some of the concerns that need to be addressed. Weinberger explained that part of the problem is that they have a conditional use permit approval, which approved a certain grading plan. He asked if the Council would have felt any differently, if back in 2001, the applicant came in and said "I would like to do this, but I don't want to leave the large gulleys that are left, or areas where you are going to have low spots on the sides of the hill, but rather I would like to tie those elevations in to existing elevations on neighboring properties." Weinberger asked if Council might have approved that application, and indicated that staff probably would have supported such a proposal, because by connecting existing contours to neighboring contours, it has created drainage areas that follow the property line versus keeping the drainage pooling on the property. Mr. Peterson stated that since his meeting with Weinberger and Schubert on Friday, he had supplied the City with data sheets and letter as to the revised delineation. He had also performed a GPS delineating the locations and boundaries from both before and after the project. He handed' out the GPS data and reminded the Council that the original delineation was done in December, when snow covered the ground. He noted that the line, for the most part, was located further to the east except right in the center portion where the encroachment occurred. Sansevere asked when the aerial was taken. Peterson stated that it was taken in 2000, before any alteration occurred. Sansevere stated that, apparently, the neighbors on either side have indicated they were satisfied with the work, while there is one neighbor where there seems to be some conflict. Although it would not be up to the neighbor what Council decides, Sansevere asked if any of these scenarios would seem acceptable to attorney Galatz's client, Mr. Chalfen. Mr. Galatz stated that, what his client would expect, is that the plan would revert to what was originally approved in 2001. With respect to extensive planting, Galatz asked what the City considered extensive to be. He maintained that what he saw planted, mere 10' tall trees, was insufficient. He felt that Mr. Chalfen had no objection to the gulleys if the neighbors like them, • however, Chalfen does object to the fact that Stephenson pulled the crest of his hill into the wetland an extra 30' beyond what was approved. By doing so, he created the gulleys and was forced to widen the fill. Galatz argued that there was nothing accidental about this application. PAGE 23 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 • 6:30 o'clock p.m. 08) #02 -2793 REVIS STEPHENSON,1850 FOX RIDGE ROAD - AFTER - THE -FACT CONDITIONAL USE PERMIT AND VARIANCES - Continued Sansevere asked if the possibility existed to come to a resolution that everyone could be satisfied with. He was hesitant to inconvenience the neighborhood further and disturbing the wetland further by requiring everything to be removed. He wished that the neighbor, Mr. Chalfen, were present personally to discuss the issue. Murphy stated that there was, obviously, no denying that the project got out of control. He suggested that Mr. Stephenson bring in a plan to reconstitute the forest without going back and ripping it all out. Galatz argued that Mr. Stephenson would never have been allowed to do what he has done. He had brought in twice as much fill as allowed, and extended his yard by 38'. Stephenson stated that the new drawings have indicated that he had encroached by a much smaller degree than originally thought. Murphy interrupted and asked Mr. Stephenson what he planned to do about it and what he proposed to do for mitigation. Mr. Stephenson stated that he would be willing to plant whatever he could get down the hill, which would be somewhat limited by the grade itself. He added that he would restore the buffer even more than he had encroached with oaks, birch, apple trees, etc., far better than the buckthorn he had removed. This would only improve the situation for the wetland. He maintained that what had been planted, thus far, was as big as they could manually get down the hill, a tree spade simply could not make it. He indicated that he would be willing to work with staff, his neighbors, Mr. Chalfen, and the City Council to accomplish this. He stated that what he has planted, thus far, is beautiful and full of native flowers, grasses, and trees. He indicated that he would be willing to plant whatever Mr. Peterson, an expert in reconstructive buffers, suggested and believed it to be a mistake to tear it up. Sansevere asked staff where they were with regard to this proposal of adding additional plantings. Weinberger stated that staff would be comfortable with that. He pointed out that what has been planted, and removed, has been positive for the wetland. The buckthorn was removed and poor unhealthy growth on the south side was replaced with new vegetation. He agreed with the applicant that the size of the trees would be limited by what could be brought down the hill, however, he would recommend additional plantings, trees, and understory growth. Murphy asked how the City could ensure that this happens. PAGE 24 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING • Monday, July 22, 2002 6:30 o'clock p.m. 08) #02 -2793 REVIS STEPHENSON,1850 FOX RIDGE ROAD - AFTER - THE -FACT CONDITIONAL USE PERMIT AND VARIANCES - Continued Mr. Stephenson volunteered the suggestion that the City hold his $5,000 in account until they would be satisfied with the project. Sansevere stated that it would be nice if Mr. Chalfen could come to see the Council for himself. Galatz maintained that his client should not have to be here. Mr. Chalfen was the one who was inconvenienced by the modifications and is forced to view a hump 8' higher than what was approved, rather than the forest he so enjoyed. Sansevere reiterated that the City was attempting to make a compromise, and asked if Mr. Galatz had been authorized to do so for Mr. Chalfen. Galatz indicated that if the hump were 8' lower and covered with plantings and trees far bigger than those presently being planted, which would take 50 -60 years to mature, that might be acceptable. Sansevere asked staff if there was a mandate in the original application requiring the applicant to plant his hill, was he bound to do what we are now asking. Galatz contended that there was a landscape plan submitted with the application. Weinberger pointed out that there were no tree preservation mandates included in the application. Sansevere explained to Galatz that if the City requires Mr. Stephenson to remove the fill and return the hill to its original location, Mr. Chalfen may be even worse off than he is now. Sansevere maintained that if the hill were completely removed, the applicant would not be required to plant any additional trees. Not only would Mr. Chalfen have lost his original view, he would be in worse shape. Weinberger stated that the applicant, in the original proposal, would have been required to add approximately 12 trees with no real size requirement. Sansevere asked about screening or if the applicant was incumbent to put a certain number of trees on the hump. Since no tree preservation requirement really exists, Sansevere argued that, if Chalfen forces the applicant to shave back the hill, there might not be any trees at all. Galatz indicated that his client would like the hill to go back to what was approved and not worry • about the screening because it would grow back. PAGE 25 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 • 6:30 o'clock p.m. 08) #02 -2793 REVIS STEPHENSON,1850 FOX RIDGE ROAD - AFTER - THE -FACT CONDITIONAL USE PERMIT AND VARIANCES - Continued Sansevere asked how this could be acceptable if Mr. Chalfen's biggest objection is the lack of screening. He wondered how it would grow back without being planted. Galatz stated that in terms of what it would take to satisfy his client, Galatz argued that it is not okay to break the law and then ask for permission. He believed this to be a bad precedent for the City. His client insists that the applicant do what the City told him he could do, and nothing more, even if that means restoring the hill and wetland. Sansevere asked if staff was uncomfortable with what is existing. Galatz stated that even in its most lenient recommendation, staff asks for some extent of modification. Assuming that Mr. Peterson's wetland delineation is correct, Weinberger stated that staff's recommendation is that there be no fill within 26' of the wetland and that slopes don't exceed 3:1. Weinberger pointed out that thru settling the-slope might get to 3:1 and questioned whether • it would be worth making the modification to the whole hill for 300 s.f. impact. He stated that the question now is whether the further environmental impact on the wetland is worth mitigating for 300 s.f. Murphy indicated that the longer the process goes on the luckier Mr. Stephenson looks. The slope is settling to 3:1 etc. In his view, the City has a couple of real options available. He would propose that they always have the fall back option 1, to remove and undo everything he did, but doesn't solve much. Option 2, allows the applicant to come back with an actual landscape design that would incorporate everything that we have talked about, and although Mr. Chalfen would not have final authorization on it, Murphy would like to invite him to review the plan, as well as, his attorney, staff, and Council. The fall back position is always present, but he felt it would behoove the interested parties to consider other options. Galatz maintained that Stephenson had already been allowed six months, and the City continues to allow him more and more time to get further into it. Sansevere stated that they were attempting to acquiesce to his client's concerns. If issues had not been raised at the last meeting, Sansevere indicated that they might have been done with this already. Murphy contended that he drove out to Mr. Chalfen's property and sat in the driveway, and was hard pressed to see how awful this is. This being summer, Murphy recognized that the view might be somewhat different in the winter but not necessarily to the degree Galatz asserts. Murphy reiterated that everyone was well aware of the baseline, and would like to give the PAGE 26 of 35 0 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 6:30 o'clock p.m. 08) #02 -2793 REVIS STEPHENSON,1850 FOX RIDGE ROAD - AFTER - THE -FACT CONDITIONAL USE PERMIT AND VARIANCES - Continued applicant another shot at making it work. Murphy indicated that he would prefer not to make the applicant remove it all. Galatz stated that he would appreciate reviewing the landscape plan. Sansevere repeated that the Council is striving to be sensitive to the neighbor's concern. Gappa noted that the 60 day deadline would be August 9, 2002. Weinberger stated that an extension would be needed. Murphy moved, Sansevere seconded, to table Application #02 -2793, Revis Stephenson, 1850 Fox Ridge Road, at the request of the applicant pending a landscape design to be reviewed by staff and neighbors. Sansevere suggested Mr. Stephenson make a point of talking to his neighbor, Mr. Chalfen, about the design. Peterson stated that he anticipated the issue would be tabled, and stated that he would work with the applicant on a design. Although everyone is aware that the project got carried away, Murphy suggested Mr. Stephenson do anything he can about it and include lots of green, trees, plants, etc. Galatz stated that, in his opinion, the wetland variance issue was separate from the hill. Stephenson indicated that he was willing to do what he could. VOTE: Ayes 3, Nays 0. ( #9) #02 -2796 MARK AND GINA KOSEK,1875 SHADYWOOD ROAD - VARIANCE - RESOLUTION NO. 4835 Ms. Kosek stated that she and her husband have one issue with the proposed resolution. The rock wall surrounds a red maple tree and the applicant was concerned about the tree, tree roots and erosion as a result of removing the rocks. The portion that loops around the tree constitutes approximately 20 s.f. Engineer Kellogg stated that he visited the site and also had concern about the tree, but felt with topsoil and additional grading the tree could be fine. On the other hand, Kellogg suggested Council could allow the 7 -foot boulder wall to remain. PAGE 27 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 • 6:30 o'clock p.m. ( 49) #02 -2796 MARKAND GINA KOSEK,1875 SIL4DYWOOD ROAD - VARIANCE - Continued Sansevere moved, Murphy seconded, adopting RESOLUTION NO. 4835, requiring the removal of the shed in the 0 -75' setback, removal and sodding over of the southern driveway, removal of stone borders and unnecessary boulder walls with the exception of the 7' boulder wall around the red maple, the allowance for a 2' X 60' sidewalk from drive to front door, and granting approval for additional hardcover in the 75 -250' setback zone at 4,992 s.f.. for the property located at 1875 Shadywood Road. VOTE: Ayes 3, Nays 0. ( #10) #02 -2797 JAMES MURPHY AND SANDRA SMITH, 30 ORONO ORCHARD ROAD NORTH, CONDITIONAL USE PERArIIT - RESOLUTION NO. 4836 Weinberger reported that the applicants had made a request for a conditional use permit to allow an additional horse on the property, making a total of three horses on the property. While 5 acres is required to permit 3 horses as an accessory use on the property when pasture land is required for feeding, the applicants have 3.6 acres and do not require pasture for feed purposes. Regardless of the size of the pasture, Weinberger pointed out that a proper manure management • program is vital to the protection of nearby wetlands and elimination of odors. Jeremy Geske, of the University of Minnesota Extension Service, determined that due to the size of the operation and the way it is managed, the impact to the wetland from runoff from the site is extremely minor. Weinberger reported that the Planning Commission included a sunset provision within the Conditional Use Permit allowing the property to be used for three horses for a period of ten years. Two neighbors spoke in favor of the application to allow an additional horse, while other comments were attached, including one objection. Weinberger indicated that staff recommends approval of the application to allow three horses to be permitted on the property, since one additional horse will not significantly change the character of the property, and the applicants own the property that has the most impact. Sansevere asked why the Planning Commission felt compelled to attach a sunset date for the third horse. Although arbitrary, Weinberger stated the Commission felt they should choose an adequate time frame to allow for the third horse. Sansevere stated that the Kokesh property was granted a CUP allowing 19 horses on 13 acres only recently. PAGE 28 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 6:30 o'clock p.m. ( #10) #02 -2797 JAMES MURPHYAND SANDRA SMITH, 30 ORONO ORCHARD ROAD NORTH, CONDITIONAL USE PERMIT- Continued Jonathon Tomhave, a neighbor at 1200 Orono Orchard Road, stated that the barn has been a pre- existing condition that has housed many horses for nearly half a century. He maintained that every neighbor who moved to this area knew it was there, and in fact, it housed many more than the three proposed horses we're considering today. Mr. Tomhave indicated that odor has never been an issue and that he believed the presence of the horses added to the value and charm of his neighborhood. He used an example from 9/11/01 in which the fundamental change felt at ground zero reverberates across the country into an acute sense of community. He added that the Council had a unique opportunity to say they support and understand the need of these residents. Sansevere maintained that Orono was once rich horse country. Although fewer remain today, Orono needs to preserve the flavor of having horse country. Sansevere was in favor of allowing the third horse and questioned the rationale of the 10 -year sunset date. Mayor Peterson stated that she believed the CUP should run with the property owner. • Sansevere felt this was a reasonable assumption. Smith stated that she would like some latitude in keeping two or three horses, since one never knows what the future holds, and she was given the opportunity by her father to take in a third younger horse. Mayor Peterson agreed that it was enjoyable to see horses in Orono, and that she did not want to lose that aspect of the community. Sansevere reiterated that Orono has the unique opportunity to offer both horses and the lake to residents. Smith stated that on many occasions people make a point of asking to see the horses. Murphy stated that one of his neighbors along Watertown, whom he only recently met, has ridden his bike with his son to look at the horses every day over the past seven years. He thanked Murphy for keeping them and said how much he and his son would be missing them as they would be moving soon. Murphy stated that it is not his intention to impose on his neighbors, but he would like to keep the third horse. Sansevere asked if the policy should be reviewed based on this and the Kokesh property. Weinberger stated that each case should be evaluated on an individual basis versus the ordinances. PAGE 29 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 6:30 o'clock p.m. 010) #02 -2797 JAMES MURPHYAND SANDRA SMITH, 30 ORONO ORCHARD ROAD NORTH, CONDITIONAL USE PERMIT - Continued Attorney Barrett indicated that the permit needs to run with the property and not with the property owners and suggested making the CUP a renewable thing allowing three horses without a time limit. Sansevere moved, Mayor Peterson seconded, to adopt RESOLUTION NO. 4836, a conditional use permit allowing three horses to be permitted on the property located at 30 Orono Orchard Road North and approving the Planning Commission recommendation with the exclusion of the 10 year time limit, leaving the CUP open ended. VOTE: Ayes 2, Nays 0, and Murphy abstaining. *( #11) #02 -2798 FRED SHEARER, 1405 PARK DRIVE - VARIANCES - RESOLUTION NO. 4837 Sansevere moved, Murphy seconded, to adopt RESOLUTION NO. 4837, granting variances for side yard and front yard setbacks, and hardcover variance in the 75 -250' zone to permit construction of an attached garage to the existing residence located at 1405 M Park Drive. VOTE: Ayes 3, Nays 0. *( #12) #02 -2799 TERESA KOCH, 2225 BAYVIEW PLACE - VARIANCES - RESOLUTION NO. 4838 Sansevere moved, Murphy seconded, to adopt RESOLUTION NO. 4838, granting variances for lot area, lot width, and hardcover in the 250 -500' setback to permit construction of a new residence and additional driveway for the property located at 2225 Bayview Place. VOTE: Ayes 3, Nays 0. *( #13) #02 -2800 MARLYS MCCARTY, 225 TONKA AVENUE - VARIANCES - RESOLUTION NO. 4839 Sansevere moved, Murphy seconded, to adopt RESOLUTION NO. 4839 granting variances for front yard, rear yard, lot area, and lot width for the construction of a new residence to replace the existing residence on the property located at 225 Tonka Avenue. VOTE: Ayes 3, Nays 0. *( #14) #02 -2804 PHILIP AND CONSTANCE MARTIN, 1230 ARBOR STREET VARIANCES - RESOLUTION NO. 4840 Sansevere moved, Murphy seconded, to adopt RESOLUTION NO. 4840, granting is variances for front yard and side yard setbacks to construct a front porch and an attached garage to the existing residence located at 1230 Arbor Street. VOTE: Ayes 3, Nays 0. PAGE 30 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 6:30 o'clock p.m. *( #15) #02 -2809 RICK AND KRISTINE STERLING, 1300 VINE PLACE - VARIANCE - RESOLUTION NO. 4841 Sansevere moved, Murphy seconded, to adopt RESOLUTION NO. , granting an average lakeshore setback variance to replace a portion of the existing upper level lakeside deck (8' X 421) and to construct a 2' X 10' addition on the lakeside of the residence located at 1300 Vine Place. VOTE: Ayes 3, Nays 0. MAYOR/COUNCIL REPORT Sansevere stated that he had spoken to residents of Minnetonka Beach with regard to dock usage issues. Moorse indicated that he was awaiting an email for further guidance on the issue. Sansevere stated that he had spoken to Mike Gaffron about boats that don't belong at the docks. He suggested this issue be put on a work session agenda for further investigation since there are rules about dock usage. • Murphy wished to discuss the arbitrary laws that Minnetonka Beach puts into effect. Mayor Peterson reminded the Commission about the upcoming Park Tour on Monday, July 29, at 5:30 P.M. and asked if any Council members, beside her, would be present. While Sansevere could not attend, Murphy indicated that he would check his calendar. PUBLIC SERVICE DIRECTOR'S REPORT *( #16) NORTH ARM LANE STREET PAVING PROJECT A. ORDER FEASIBILITY REPORT - RESOLUTION NO. 4842 Sansevere moved, Murphy seconded, adopting RESOLUTION NO. 4842, Ordering Preparation of a Feasibility Study for the North Arm Lane Paving Project. VOTE: Ayes 3, Nays 0. B. ACCEPT FEASIBILITY REPORT AND SCHEDULE PUBLIC HEARING - RESOLUTION NO. 4843 Sansevere moved, Murphy seconded, adopting RESOLUTION NO. 4843, Receiving Report and Calling for a Public Hearing on the North Arm Lane Paving Project set for August 12, 2002, at 7 p.m. VOTE: Ayes 3, Nays 0. PAGE 31 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 • 6:30 o'clock p.m. ( #17) ORONO BASEBALL ASSOCIATION - LEE CARLSON BALLFIELD EXPANSION PROJECT - TRAIL Gappa explained that the Orono Baseball Association was granted a Conditional Use Permit for the construction of an additional baseball field at the Lee Carlson Complex in September 2001. A trail connection is needed across this property to connect the existing dead end trail from the Willow View Subdivision to the Old Crystal Bay Road trail. Gappa noted that a retaining wall will be needed between the top area at the top of the hill and the county highway. While the original plan reflects the retaining wall and trail as part of the ballfield project, the baseball association has received quotations from contractors for the project, and the cost for the additional trail and wall was approximately $100,000. Gappa stated that the association has raised a little more than $200,000 for the entire ballfield project, money needed for the new field and related improvements construction, so they do not have adequate funds to complete the trail portion of the project. Gappa reported that several options exist for potential funding for the construction of the trail portion. First, one source could be Park Dedication Funds, which are available for use in constructing new park and other recreational facilities. Gappa pointed out that currently there are • not sufficient funds to complete the project. Another funding option is Hennepin County cost sharing funding for trail construction. Gappa explained that in this program, the County provides funding for 50% of trail construction costs with the City responsible for the remaining 50% of the cost. Conversations with Hennepin County staff have indicated that this trail is on the County Trail System Plan and would be a high priority project, and funds may be available in 2003. Gappa pointed out that a possible funding option for the City's share of trail costs would be to use Municipal State Aid Funds, which should be adequate when County cost sharing funds are available. Sansevere asked if Hennepin County is willing to give 50% and state aid dollars provide 50 %, could they approve the project for OBA (Orono Baseball Association) contingent on receiving these funds. In addition, OBA would be asked to leave enough dirt for the trail portion as they grade. Moorse stated that the only question that remains is to be sure we get the grant. He reiterated that if the City does not get the grant funds, they don't have the retaining wall or trail. Sansevere stated that he would not support holding up the ballfield project contingent on getting the funds. • PAGE 32 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 • 6:30 o'clock p.m. ( #17) ORONO BASEBALL ASSOCL4TION - LEE CARLSON BALLFIELD EXPANSION PROJECT- TRAIL - Continued Moorse concurred, stating that due to construction, Holbrook Park might be out of commission next year and the new field needs to be available to handle the demand. Sansevere reiterated that the construction of the fields should not be held up. Dumas, of Orono Baseball, stated that in reality the Association never really expected to raise enough money to complete the trails and wall, but were told they needed to include them in the plans. Moorse asked if the City could grade in the area of the ballfield. Gappa stated that the City would request that the OBA store all the graded dirt up in the berm to use later on the trail area. While he was in support of the ballfield construction, Sansevere asked what the OBA would do if • the Council said they need more money and could not get approval without it. Sansevere moved, Murphy seconded, that the Council is willing to allow the construction of the ballfield independent of the construction of the retaining wall and trail, and the Council is willing to consider partial City funding for the trail, contingent upon OBA's stockpiling of dirt on the berm. VOTE: Ayes 3, Nays 0. CITY ADMINISTRATOR'S REPORT *( #18) PAY REQUESTS - LONG LAKE FIRE STATION Sansevere moved, Murphy seconded, to approve the requests for payment in the amounts of $4,625 and $4,660 to Kirk Program Management, to be funded from the Joint Fire Station Fund: $1,354.55 to SEH, to be funded 50% by the City of Orono and 50% from the Joint Fire Station Fund, and $300 to the Hennepin County Surveyor to be funded 50% by the City of Orono and 50% from the Joint Fire Station Fund. VOTE: Ayes 3, Nays 0. *(19) APPLICATION AND CERTIFICATE FOR PAYMENT NO.3 - LONG LAKE FIRE STATION Sansevere moved, Murphy seconded, to approve Application and Certificate for Payment No. 3 from Rochon Corporation in the amount of $103,750.50, to be funded from the Joint 40 Fire Fund. VOTE: Ayes 3, Nays 0. PAGE 33 of 35 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday,.July 22, 2002 . 6:30 o'clock p.m. ( #20) JOINT FIRE STATION ACCOUNT - EXCESS FUNDS Murphy stated that the time has come to split the difference of the estimated $850,000 leftover in the account between Long Lake and Orono. The Fire Station looks great and has come in within budget. Murphy moved, Sansevere seconded, to authorize the withdrawal of $850,000 from the Joint Fire Station Account, to be divided evenly between the Cities of Orono and Long Lake. VOTE: Ayes 3, Nays 0. *( #21) RENEWAL OF MAPLE PLAIN FIRE AGREEMENT Sansevere moved, Murphy seconded, to authorize non - renewal of the Maple Plain Fire Service Agreement for 2003, if the City of Maple Plain does not agree to hold the 2003 fire service costs to the contracting cities at the 2002 level. VOTE: Ayes 3, Nays 0. *( #22) RESIGNATION OF MARC DAVIS, BUILDING INSPECTOR Sansevere moved, Murphy seconded, to accept the resignation of Marc Davis from the is position of Building Inspector effective July 9, 2002. VOTE: Ayes 3, Nays 0. ( #23) AGREEMENT FOR BAD CHECK PROGRAM Sansevere asked if it was a good idea to submit names of first time bad check offenders into the program automatically. He stated that first time offenders often have inadvertently written a bad check and it would not be right to subject them to this program. Moorse agreed, stating that the program seemed somewhat severe for someone who writes one bad check. Attorney Barrett questioned whether an offender would be someone who has already been charged with a misdemeanor and then put into the diversion program. Sansevere asked if Barrett was familiar with this program. Barrett acknowledged that he was unfamiliar with this diversion program and recommended holding off on enrolling until further investigation could be completed. Mayor Peterson moved, Murphy seconded, to table the bad check program agreement between Retailer's Protection Association and the City of Orono until further investigation. VOTE: Ayes 3, Nays 0. r PAGE 34 of 35 0 i . MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, July 22, 2002 6:30 o'clock p.m. ( #24) SCHEDULE WORK SESSION Moorse asked that a work session be scheduled before August 2, 2002 to discuss the boat/slip dock issues. He stated that he would send out potential dates and times. Moorse added that the Council should also schedule a work session the week of August 12th to begin the budget review process. CITY ATTORNEY'S REPORT None. *25. LICENSES There were none. Sansevere moved, Murphy seconded, to approve all licenses. Vote: Ayes 3, Nays 0. *26. BILLS Sansevere moved, Murphy seconded, to approve payment of the All Funds Account. Vote: Ayes 3, Nays 0. ADJOURNMENT The meeting was adjourned at 10:29 P.M. ATTEST: Li da S. Vee, City Clerk PAGE 35 of 35 Barbara Peterson, Mayor