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HomeMy WebLinkAbout09-13-2004 Council MinutesMINUTES OF THE ORONO CITY COUNCIL MEETING Monday, September 13, 2004 7:00 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, Jiro White, and Lili McMillan. Representing Staff were City Attorney Thomas Barrett, City Administrator Ron Moorse, Planning Director Mike Gaffron, Planner Janice Gundlach, Public Services Director Greg Gappa, City Engineer Tom Kellogg, and Recorder Jackie Young. Council Member Jim Murphy was absent. Mayor Peterson called the meeting to order at 7:02 p.m. CONSENT AGENDA 1. Approve /Amend Items #6, 7, 8, 9, 11, 12, 14, 15, and 16 were added to the Consent Agenda, while Item #3 was removed. Sansevere moved, White seconded, to approve the Consent Agenda as amended. • VOTE: Ayes 4, Nays 0. is RECOGNITION 2. Jeanne Mabusth — Resolution This item follows the Mayor /Council Report. APPROVAL OF MINUTES 3. Regular Council Meeting of August 23, 2004 McMillan requested the minutes be corrected under the Mayor /Council Report to read as follows: "McMillan stated that the Stubbs Bay feasibility study was complete and the MCWD would be contacting the City to schedule a presentation." McMillan moved, White seconded, to approve the minutes of the August 23, 2004 Orono City Council meeting as corrected. VOTE: Ayes 4, Nays 0. PAGE 1 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, September 13, 2004 7:00 o'clock p.m. PARK COMMISSION COMMENTS — Rick Rice — Representative Representative Rick Rice appeared before the City Council and stated the Park Commission at its August meeting met over at the Navarre Park to look over the newly acquired property on Lyric Avenue. Rice indicated concerns were expressed by members of the Park Commission over the anticipated costs associated with relocating the barn structure on the Lurton property, with a meeting with the Lurtons being scheduled in the near future in order to discuss this issue. Gappa indicated a meeting has not yet been arranged. Rice stated the Park Commission also discussed the Lydiard Beach situation as well as placement of posts on the sand to eliminate parking in that area. Rice inquired whether that work would be completed next spring. Gappa stated the work could possibly be completed this fall. Rice indicated the possibility of installing a T -dock and milfoil removal at Lydiard Beach was also discussed. In addition, the Park Commission discussed acquisition of access to Lowry Woods, which consists of 14 acres, with no defined access being arrived at. • Gappa noted two residents of the Navarre Park neighborhood were also present at the park. Gappa indicated the Park Commission had suggested a row of spruce trees that are blocking out some maples be removed to help clean the park up and to make it less secluded. Gappa stated the slab under the garage is in good shape and could possibly be used for another purpose such as a • half -court basketball court. Peterson inquired whether the two neighbors had expressed any concerns or input regarding the park. Lois Hudlow, 3438 Lyric Avenue, stated she would like to see more picnic tables to accommodate adults who may visit the park as well as more green space. Hudlow indicated there is one neighbor who has expressed a concern about people walking through his driveway to access the park. Hudlow stated she would like a higher fence installed if a ball park should go in that area. Peterson commented that it is not likely that a ball field would be created at that park. Hudlow pointed out the street is not clearly marked for no parking. Hudlow indicated her concerns are that no one park in her flowerbeds and that her oak trees are not trimmed during the growing season. Hudlow requested the neighbors be kept informed of any possible improvements to the park. Sansevere noted the Park Commission chair's term limit is up at the end of the year. Sansevere suggested the Council consider eliminating the term limits. Sansevere recommended the Park Commission try to arrive at a consensus for a new chair. McMillan noted the Park Commission used to have a vice chair in the past, and suggested that some consideration be given to recreating that position. • PAGE 2 n U MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, September 13, 2004 7:00 o'clock p.m. PLANNING COMMISSION COMMENTS — Poland Jurgens, III, Representative Jurgens stated he does not have any comments on tonight's applications, but requested the City Council provide the Planning Commission with some input on the large vehicle storage amendment. Sansevere noted the situation may have resolved itself since the resident in question is in the process of selling his truck. Gaffron indicated Staff, at the request of the Council, had reviewed whether large vehicle storage should be permitted with a conditional use permit. Staff has concluded that a conditional use option would not be a good option and that this item would be on this month's Planning Commission agenda. Sansevere commented that in his opinion the rural character of Orono should be preserved and that people who have lived here for years and have utilized work vehicles should not be pushed out because of complaints from residents of newer developments. Gaffron stated he is aware of approximately 12 situations where there may be similar complaints in the future. PUBLIC COMMENTS • None • ZONING ADMINISTRATOR'S REPORT 4. JAMES RENDER, 1335 TONKAWA ROAD — BUILDING HEIGHT — APPEAL OF ADMINISTRATIVE DECISION James Render, Applicant, and Allen Barnard, Attorney -at -Law, were present. Gaffron stated the Applicant is appealing Staff's interpretation of the City's building height ordinances and policies as they have been applied to his proposed residence located at 1335 Tonkawa Road. A building permit has not been issued because Staff believes the proposed building height exceeds the 30' height currently allowed by City codes. Gaffron stated the primary issue is the interpretation of the terminology "average height of the highest gable of a pitched or hipped roof', and how the City has interpreted it from a policy standpoint. A second issue before the Council is whether the low point of measurement must be the current existing grade or a grade proposed when the subdivision was approved but never created. Gaffron explained the City's code specifies 30', with a high point and a low point being defined within the code. From Staff's perspective, the defined height of the proposed house is 36.6 feet, or 6.6 feet higher than allowed by code, and was derived at based upon methods that Staff feels are consistent with the code and with policies that have been established and refined over the past two PAGE 3 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, September 13, 2004 7:00 o'clock p.m. (James Render, Appeal of Administrative Decision, Continued) decades. Gaffron indicated in order to meet the City's height standard, the peak of the house would need to be reduced by 12 feet. Gaffron indicated the Applicant's architect feels the City should go by the strict wording of the code and ignore the policy as well as use the grade that was proposed but never created at the time of the approval of the subdivision. Gaffron stated if the City follows his method of determining the high point, the defined height would still be 32.4 feet or 2.4 feet higher than allowed by code. Gaffron stated this property was the middle lot of a three -lot plat created in 1998. The three lots were then replatted a year later to relocate lot lines and incorporate additional land to expand the two westerly lots. A grading plan proposing the creation of a built -up building pad for this lot was provided with the initial subdivision. Sansevere inquired whether the grading would need to be changed once the lot lines were changed. Gaffron stated a revised grading plan was not required or provided at the time of the replatting. Sansevere inquired whether the City's policy concerning height is typically provided to applicants or their representatives. 0 Gaffron stated if Staff receives a call from someone who is interested in finding out how the City ascertains building height, they would be given the City's policy that was created in November of . 2002. Gaffron stated if the person relies solely on the code and their own interpretation of the code, they may not be aware of the policy. Gaffron indicated Staff does not recall receiving a call in this particular case from the architect requesting clarification of the City's defined height ordinance. Sansevere inquired whether the policy should be made an addendum to the code. Gaffron stated there is no question that codes are supported by policies that are written and unwritten, and noted that the policy in question here was written two years ago but is not included in the building permit packet given to applicants. Gaffron indicated the City also does not provide its hardcover policy routinely to people unless it is requested. Sansevere inquired whether there is any notation on the City's web site that says a person is to contact the City for the various policies. Gaffron stated he does not believe that language is currently on the City's web site and that Staff is looking to incorporate the height policy specifically into the code. Gaffron indicated this issue has started to become more regular in the past year given the complex roof systems being designed by architects today. Gaffron noted the Planning Commission would be addressing this matter at their September meeting. Gaffron pointed out the architect in this case did not have the benefit of the City's policy for determining height. Gaffron stated based on the Applicant's current submitted survey, the initial grading plan to raise the grade to 939.5' for the middle lot was never fully accomplished, either as part of the subdivision or later. The existing grade at the east end of the site is approximately 936.2' where it tapers away from • PAGE 4 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, September 13, 2004 7:00 o'clock p.m. • (James Render, Appeal of Administrative Decision, Continued) the home next door. Gaffron stated the existing grade where the house will be placed ranges from 932.9' to 936.4' per the Applicant's survey, which suggests that portions of the lot were filled between two to three feet when the home to the east was built. Gaffron stated the City's building height definition in the code reads as follows: "Building height means the vertical distance between the highest adjoining ground level at the building or ten feet above the lowest ground level...." "Topographic changes which elevate the adjoining ground level above the existing terrain shall not be considered in determining building height." Gaffron stated approximately ten years ago that last sentence was incorporated into the City's code specifically to force people to use the existing grade and not artificially build a mound with a structure being constructed on top of it. Sansevere inquired whether the architect would prefer the current existing grade or the proposed grade be utilized in defining the height. Gaffron stated the architect is utilizing the proposed grade of 939.5'. Gaffron stated in his view the existing elevation of 936.3' should be used. Utilizing Exhibit G, Gaffron explained Staff's analysis of the defined height. Gaffron stated using the gable located on the lakeside of the house and ignoring the City's policy for a moment, the average point is lower than the one the Applicant proposed. Gaffron indicated the proposed • residence has a number of hip roof features and gables, which has made it difficult for Staff to determine which one is the highest gable. Gaffron stated this problem has routinely arisen in the past ten years, with the Planning Commission suggesting that the visual perception of a roof system should help dictate what is the highest gable. Gaffron stated that suggestion has become part of the City's policy. • Gaffron stated in determining the average height Staff has, as a matter of policy, considered that the ceiling of any usable space within a gable that contains a window will be considered as the low point of the highest gable for height determinations. Gaffron noted this policy has been in place and administered for many years, but it has never been formally added to the code nor adopted as part of a policy resolution. Peterson inquired whether the City has a policy on when the approved grading as part of a subdivision would expire or whether that approval would continue indefinitely. Gaffron stated in general Staff feels that when the letter of credit has been released and all the improvements have been accepted on the property, that they do not expect changes to occur after that time. Gaffron indicated a road was constructed as well as a storm water pond and some grading was completed with the first home. Gaffron stated the lot to the west was constructed without much change in the grade. McMillan inquired when subdivision grading is approved, whether that creates a new baseline for height. McMillan also asked if a portion of a subdivision is filled, whether that then resets the elevation for building height. PAGE 5 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, September 13, 2004 7:00 o'clock p.m. (James Render, Appeal of Administrative Decision, Continued) Gaffron stated it does, citing Willow View as an example. Gaffron stated the grade in this particular subdivision was raised and then left there for a number of years. Gaffron stated in his view it is unreasonable and inconsistent to use a grade that used to exist on this property as existing grade. Gaffron stated the defined height in Staff's perspective is the difference between the upper measuring point of 972.9' and the lower measuring point of 936.3', resulting in a defined height of 36.6', which exceeds the 30' limit. Gaffron noted if the architect's analysis is used and they are given all the benefits of the doubt without the policy being applied in this case, the defined height would be 29.2'. Gaffron indicated Staff does not agree with the architect's analysis. Gaffron stated in his opinion the real issue before the Council tonight is to decide whether the proposed height of the residence is acceptable or not and whether it meets the intent of the code and the intent of the policies. In Staff's perspective, the height of the proposed residence is too high and does not meet the criteria for a hardship. Gaffron indicated one option discussed has been changing the peak to a cupola design, which might qualify for a conditional use permit if there are no negative impacts with the excess height. n U Render stated it was not his intent when he first started the process of designing this house to bend the rules or try to do anything unusual. Render stated in his opinion the City's policy does not fit this particular situation. Render explained they attempted to design a house that would look like it had been there for a long • time and would blend in with the rest of the neighborhood. Render stated his architect worked within the information that was available to them and designed a house that they felt fit within the guidelines as they understood them. Render gave a brief history of the property and the grading that has occurred within this subdivision. Render noted the property was originally platted in 1907. At some point in the mid 1950's, three lots were combined and a home was built upon them. Render indicated he purchased the property in late 1997, and approached the City requesting that the one lot again be replatted into three lots, which was approved in 1998. In July of 1998, the existing home and foundation was removed. During the demolition of the structure, some bad soils were encountered and extensive soil correction was completed on the property. Render noted approximately 3000 cubic yards of poor soils were taken off the site at that time. In September of 1998, the City requested a letter of credit, which was provided, for the site improvements with the first addition called Tonkawa Shores Addition. Render indicated approximately $10,000 of the letter of credit was for importation of fill and grading of the site to the approved grade at that point in time. In November of 1998, construction began of the house located at 1350 Tonkawa. In September of 1999, the City requested an extended letter of credit, which was provided, because the road and grading had not been completed. In late September 1999, a fourth lot was purchased, which then became 1355 Tonkawa. Render stated an application was made to the City to make the four lots into three lots, which was approved. U PAGE 6 C7 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, September 13, 2004 7:00 o'clock p.m. (James Render, Appeal of Administrative Decision, Continued) Render stated in November of 1999, he moved into the residence located at 1315 Tonkawa, and in order to get the certificate of occupancy, the first lift of asphalt was put down on the newly built private road. Render indicated at that point in time they were proceeding ahead and replatting the property into Tonkawa Shores Second Addition. Render noted the improvements to the First Addition were not yet completed at that time. Render indicated he had discussions back in that time period with City Staff and City Engineer Kellogg regarding the fresh asphalt and the anticipated construction. Render stated to his recollection they had agreed that it made good sense to utilize the empty lot for the storage of excess fill. In February of 2000, Render indicated the newly created lot was sold, with the contract stipulating that extra soil from the construction would be accommodated on his vacant lot as long as the area was flattened out and able to be mowed once the construction was completed. Render stated in May of 2000, the City approved the second addition plat. In June of 2000, the street construction was completed, with the last lift of asphalt being laid. In July of 2000, the City recorded the plat of the second addition. Render indicated there was no developer's agreement in place, no request for a grading plan, or anything else requested prior to the plat being recorded. In September of 2000, the letter of credit that was provided with the first addition expired. Render stated he inquired of the City on how to get the letter of credit reduced but was never given an answer. • Render explained that in March of 2001, construction began on Lot 1, 1335 Tonkawa Shores. Render indicated he again agreed at that time that the contractor could use the empty lot for the storage of any excess fill. Render stated no excess soil was generated from the construction but that some soil was actually removed from the vacant lot and put on Lot 1. Render stated the lot was never brought back up to the highest elevation that it was approved for under the first addition because he did not realize he was required to. Render stated he now finds himself in the situation where he is debating what the grade is with the City on this lot. Render stated in his opinion an understanding has to be reached on the grading before building height can be addressed. Render distributed information to the Council concerning the grading on the lot. McMillan inquired whether it was an oversight that no grading plan was included at the time of the second plat. Render indicated he just assumed that he had approval to go to those elevations that were approved with the first plat since all they were doing were making the lots bigger with the second plat. Render stated he was never informed that he would lose his approved grade if he did not complete it within a certain period of time. Render indicated he has researched the City's codes in an effort to determine when final grade must be established on a platted lot and was only able to find that final grade must be established prior to the issuance of a certificate of occupancy. Render stated he did not find anything that indicated that his approved grade would expire after a certain period of time. Render stated in his view there are four different grades that could be discussed on this property, • with the first being historical grade. Render indicated a drawing prepared by the City clearly shows PAGE 7 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, September 13, 2004 7:00 o'clock p.m. (James Render, Appeal of Administrative Decision, Continued) an elevation at 940' projecting substantially into the area of where the proposed house is to be located. Render stated this historic grade was in existence for approximately 55 years but was changed at the time of the construction in 1998. Render stated another type of grade for this property would be approved grade, which in his view would be 939.5'. Render stated that number was arrived at in a meeting with Staff but that he would argue his approved grade should be 940.5'. Render indicated the 939.5' in his opinion would be the lowest elevation and that he should have the right to the highest grade, which would be the 940.5'. Gaffron stated the issue is what grade exists today. Gaffron noted that the survey from the Applicant shows nothing higher on the property than 936.3, which was the elevation he used rather than a proposed elevation. Gaffron indicated the City Council could elect to use one of the other grades, but that he is not able to snake that conclusion based upon what the code directs him to use. Render inquired where the 939.5' elevation came from. Gaffron stated that number did not come from him and that he is unsure where that number was derived from. Gaffron indicated the only number he is comfortable with is the 936.3', which is the existing grade. • Render inquired whether Moorse recalled the 939.5'. Moorse stated it was his understanding the 939.5' was the elevation that was previously approved • with the subdivision. Gaffron indicated he understands the rationale for Render wanting to use the 939.5' but that the code directs him to use the existing grade. Render stated a third type of grade that could be used for this property is a common sense grade of 943.6', which is derived by taking the elevations of the property on either side of this lot and calculating the difference between the two elevations in order to arrive at an elevation for this lot. Render indicated the 943.6' elevation is pretty close to the elevation they are requesting. Render stated the existing grade would make sense in a situation where the house was being torn down, but in a situation where there has been construction on either side of the lot and soils have been borrowed back and forth from the lot in question, the existing grade is different month to month depending on the construction and would not really reflect what the actual grade of the property is. Render commented he is unaware of a time deadline in which the lot had to be graded to 940.5'. Sansevere inquired what date the historical grade was from. Render stated that grade was established when it was platted in May of 1998. Sansevere inquired whether the 940.5' is in dispute. • PAGE 8 • • MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, September 13, 2004 7:00 o'clock p.m. (James Render, Appeal of Administrative Decision, Continued) Gaffron stated the 940.5' is probably accurate, noting that there is a survey from the City that reflects that elevation. Gaffron commented that any time grade is proposed to be changed on a property, technically the City requires a filling or grading permit for any changes in elevation or changes in grade on the property. Gaffron stated any filling of over 500 cubic yards requires a conditional use permit and any filling between 0 to 500 cubic yards is a staff - issued permit. Gaffron indicated he is not aware of any permits being granted for filling of this lot or of any interim grading plan being submitted to the City. Sansevere inquired what answer the architect gave to the applicant for why City Staff was not contacted to verify that their interpretation was correct. Render stated he engaged the architectural firm of TEA and was told someone from their staff obtained the City's code book and had also researched the City's web site situation for any modifications to the code. Render indicated he has spent approximately 15 months in the design process, but did not become aware of a problem with the height until the City informed his architect that they would not issue a building permit. Render noted the architect has prepared an exhibit that is before the Council tonight that looks at it from the City's perspective as much as possible. Sansevere inquired whether the architectural firm ever discussed this matter with City Staff. Render indicated he is not aware of whether they talked with City Staff over this issue. Sansevere stated in his opinion there should be accountability on both sides and that the City of Orono should consider putting language on their web site saying that you must contact City Staff for any relevant policies. Sansevere commented that it is difficult to believe that Orono is the only city where interpretation of city codes is an issue and where the architect does not bother to get a clarification. Sansevere inquired whether architects routinely contact City Staff to get clarifications of city codes. Gaffron stated Staff is contacted almost on a daily basis concerning these types of issues. Render stated the architect has explained that they have never encountered a situation like this in another city where a policy is not part of a city's established printed code and is different than the Uniform Building Code. Render stated City Staff informed him that this policy is not made available to applicants unless specifically requested. Sansevere stated the lack of contact by the architect with City Staff is the gap in this situation. Barnard stated in his opinion if there was some ambiguity in the ordinance, that the architect would then have a duty to talk to the City, but when the ordinance tells you how to define the height of a building, then there is not reason to ask for clarification. Sansevere inquired if the historical grade of 940.5' was used, along with Staff's interpretation of the code without the policy, what the defined height would be. PAGE 9 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, September 13, 2004 7:00 o'clock p.m. (James Render, Appeal of Administrative Decision, Continued) • Gaffron indicated his interpretation of the code is based upon the City's policy. Gaffron stated he arrives at a defined height of 33.4' using the historical grade of 940'. Gaffron stated in his opinion there is ambiguity in the code since Staff came up with a significantly different highest gable than the architect came up with. Gaffron stated in his opinion the highest gable is located on the rear of the house, and if the elevation of 940' is utilized, based on Staff's interpretation of the code, the defined height of the structure is still 2.4' higher than what the City allows. Render noted his architect arrived at 29.2'. Gaffron suggested the City Council, in order to reach a conclusion on how to define building height in this situation, look at, one, where the lowest measuring point is; two, decide whether to accept the use of this policy by Staff; and three, if the policy is not used, whether the architect's or the City's interpretation of the low point and highest gable should be used, and then determine whether or not they exceed the building height requirement. McMillan commented she has some reservations with the conditional use permit option since the peak is not an accessory architectural feature like a chimney or a cupola but is more a feature created by the rooflines of the house. McMillan stated it is not defined that specifically in the code, but in her opinion the peak is unusable space as far as living space goes and is more of an architectural feature in this situation. McMillan indicated in the future she would prefer a conditional use permit not be used for an architectural feature that is created with rooflines. McMillan stated since it is not well defined in the code, she would be willing to consider a conditional use permit in this situation. • Gaffron stated Section 7813.66 reads that the height limitations imposed by other provisions in this chapter may be increased by conditional use permit by 50 percent and apply to the following structures: church spires, belfries, cupolas and domes which do not contain usable space, monuments and fire towers, fire and hose towers. Gaffron noted the City denied a conditional use permit for the fire station for a tower. Other structures include observation towers, flag poles, chimneys, smoke stacks, parapet walls extending not more than two feet above the height of the building, cooling towers, elevators, and penthouses. Gaffron stated the City recently approved a conditional use permit for excess height for chimneys for a property on Brackett's Point but denied excess height for some screening above the art center. Gaffron noted the code does not provide a definition of a cupola. Peterson inquired what the height is from the base to the very peak of the residence. Gaffron stated the height on the lakeside is 49.0 feet Render stated he had his proposed residence compared with the neighboring house, with the builder doing an analysis and determining that the peak of his house is within a foot and a half of the height of the neighbor's chimney. The City Council reviewed scaled versions of building plans for the two adjacent properties and the proposed residence. Gaffron noted the peak for the proposed house is approximately 12 feet higher than the Applicant's existing house and is approximately two to three feet higher than the chimney. • PAGE 10 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, September 13, 2004 7:00 o'clock p.m. • (James Render, Appeal of Administrative Decision, Continued) Render stated his builder, who also constructed the neighbor's residence, informed him that there is a foot and a half difference between the peak of his proposed house and the neighbor's chimney. Sansevere stated in his view what would be fair would be to look at the historical grade. Sansevere stated the City Council cannot apply the architect's interpretation of the code, but that he would be willing to entertain looking at the historical grade since that one is the one that was in existence the longest. Render indicated that grade was there for approximately 55 years. McMillan stated if the City went with the 940' and used Staff's interpretation of the ordinance, the defined height of the building would still exceed the maximum by two feet. McMillan commented she would rather consider a conditional use permit. Sansevere stated it is up to the Applicant to decide how to reduce the height of the building but that he personally would not be in favor of a conditional use permit at this time. Peterson indicated she is in agreement with Sansevere. White commented in his view the common sense approach is the most compelling, which would give this lot a similar elevation to the two adjacent properties. White indicated he would possibly be in • favor of a conditional use permit because the majority of the proposed residence is 12 feet lower than the adjacent residence. White recommended the City's policy be incorporated into the ordinance. is Sansevere inquired on what basis the city would grant a conditional use permit. Sansevere stated he does not see the justification for it. White stated in his opinion there is ambiguity in the ordinance. McMillan commented in her opinion it is an architectural feature of the house. Peterson agreed that the peak of the house is an architectural feature, but inquired whether it could be reduced by two feet. Render stated he is not an architect and is not sure how that could be accomplished. Sansevere stated in his opinion it would be inconsistent to grant a conditional use permit. Sansevere indicated he would be willing to use the 940' with staff's interpretation, but noted the Applicant would still need to reduce the height of the residence somewhat. Peterson noted the City has always concurred with the policy that is being applied in this case. White indicated he would be willing to consider a conditional use permit. Peterson indicated she would not be in favor of a conditional use permit. PAGE 11 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, September 13, 2004 7:00 o'clock p.m. (James Render, Appeal of Administrative Decision, Continued) • McMillan stated she is a little sympathetic to the Applicant since this policy is not contained within the code book. McMillan commented that she understands Staff has applied this policy very consistently in the past, but that the code needs to be tightened up, especially relating to issues on architectural features. McMillan recommended that rooflines not be used in the future to create an architectural feature, but noted that is not currently contained in the City's ordinance. McMillan stated she would be willing to entertain a conditional use permit on that basis. White commented he does not recall another instance similar to this, and inquired what impact that would have on other applicants that the City has denied. McMillan stated in her view an architectural feature is not livable space. Peterson stated the architect should have contacted the City for clarification. Sansevere inquired whether Staff would interpret the ordinance the same way they do now without the policy or whether they apply the policy to interpret the ordinance. Gaffron commented he would contact the City to find out what the highest gable would be, noting there are at least five possible different interpretations that could be reached with the design of this house. Render stated in his view, using even the strictest interpretation of the code, they are still under the . City's height restriction. Gaffron indicated he is not in agreement with that view, and that if you look at the rear side of the house, the average elevation is 972.9'. Moorse commented he would like to clarify the initial meeting at which the 939' elevation was originally discussed. Moorse noted the meeting involved Lyle Oman, the City's building official, rather than Mike Gaffron. Moorse inquired how the common sense grade compares to the existing grade. Gaffron said in his view existing grade is what exists at the site today, and noted that the City's code reads that "Topographic changes which elevate the adjoining ground level above the existing terrain shall not be considered in determining building height." Gaffron noted the grade on this lot has changed several times, and inquired at what point in time Staff should define grade. Gaffron stated in his opinion the ordinance would need to be worded more clearly if the Council wants to consider a proposed grade or a historical grade. Sansevere pointed out the existing grade is a result of the construction on the lot next door, but that he would be willing to give the Applicant the benefit of the doubt and use the historical grade in determining the height of the structure. Sansevere inquired whether Staff would prefer the historical grade or a conditional use permit in this instance. Gaffron indicated he would be comfortable with the 940' if the Council found that the grade on this lot has changed over the years due to the movement and placement of soils on this lot. Gaffron • PAGE 12 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, September 13, 2004 7:00 o'clock p.m. (James Render, Appeal of Administrative Decision, Continued) stated in his opinion that would not set a precedent. Gaffron stated the City's survey reflects a grade of 940' in 1992. Render stated he would be comfortable using the historical grade. Gaffron explained that the defined height of the structure would be 32.9' using the historical grade, but that there would still have to be some design changes in order to meet the maximum height allowed. White inquired whether the Applicant would be willing to change the design slightly to make this section of the house look more unique and separate. Gaffron indicated the Applicant has submitted plans showing different peak designs. Render stated in one of the plans they created a metal band around the peak to make that area seem more like a cupola. Gaffron pointed out a cupola would require a conditional use permit. Gaffron stated if the peak is lowered to the point where the average from the windows to the peak yields a 30' number, then it would be reasonable to grant a conditional use permit for a cupola. Gaffron stated in his view it • presently is not a cupola. Barrett stated in his view Gaffron's proposal would create no precedent, but that if the City granted a conditional use permit for a cupola on this residence, they would need to grant a conditional use permit for other applicants that meet the same set of conditions. • Gaffron stated a hardship would not need to be shown with a conditional use permit. Jurgens suggested the Applicant consider cutting off a band through the peak, leave the area somewhat like it is but square off the peak and add some windows around it. Jurgens stated in his mind it would create a peak, be a projection of the roofline, and create an architectural feature that could be considered a cupola. Gaffron concurred in that instance it would be considered a cupola as long as it is not an extension of the roofline. Garrett stated the applicant would need to submit an application for a conditional use permit to allow the cupola and appear before the Planning Commission. Garrett stated the appeal could be tabled to allow the Applicant time to redesign that section of the house. Peterson inquired whether a motion approving the 940' elevation is necessary. Garrett indicated the issue before the Council tonight is whether a building permit should be issued, and if the Council determines, based upon the present design, that the building permit should be denied, then a motion denying the appeal would be appropriate. PAGE 13 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, September 13, 2004 7:00 o'clock p.m. (James Render, Appeal of Administrative Decision, Continued) Render stated he would like to have approval of the 940'. White moved, Sansevere seconded, to deny the appeal of administrative decision by James Render, 1335 Tonkawa Road, relating to measurement of building height. VOTE: Ayes 4, Nays 0. Sansevere moved, Peterson seconded, that the sense of the council was that the grade elevation could be set at 940' for the lot located at 1335 Tonkawa Road. White pointed out the Council is accepting the 940' elevation for this proposed residence only. Barrett suggested staff draft a resolution of denial. VOTE: Ayes 4, Nays 0. 5. #04 -3010 THEODORE CAPRA, 3534 IVY PLACE — VARIANCES White moved, Sansevere seconded, to table Application #04 -3010, Theodore Capra, 3534 Ivy Place, at the request of the Applicant. VOTE: Ayes 4, Nays 0. (Recess taken from 9:00 — 9:07 p.m.) *6. #04 -3044 JENNIFER SIMON, 3925 CHERRY AVENUE — VARIANCES — DENIAL • RESOLUTION NO. 5224 Sansevere moved, White seconded, to adopt RESOLUTION NO. 5224, a Resolution Denying a Variance to allow a rear yard setback of 20 feet when 30 feet is normally required for the property located at 3925 Cherry Avenue. VOTE: Ayes 4, Nays 0. *7. #04 -3046 ROBERT AND BRENDA MACDONALD, 2480 Old Beach Road — CUP/VARIANCE — RESOLUTION NO. 5225 and RESOLUTION NO. 5226 Sansevere moved, White seconded, to adopt RESOLUTION NO. 5225 and RESOLUTION NO. 5226, Resolutions granting an after- the -fact side yard setback variance to permit the detached garage to remain 8.4 feet from the side lot line when 10 feet is normally required for the property located at 2480 Old Beach Road. VOTE: Ayes 4, Nays 0. MAYOR/COUNCIL REPORT Sansevere stated he would like to discuss at a work session the decision made last year by the Council concerning the half -a -day time off that Staff gets if they need to attend three evening meetings in a month. Sansevere stated he would like the time off to be based on the need to attend evening meetings period. Sansevere suggested rather than requiring attendance at three meetings in • PAGE 14 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, September 13, 2004 7:00 o'clock p.m. is(Mayor /Council Report) one month before any time off is given, the policy should be one -half day off for each two or three evening meetings attended. Peterson indicated she recently attended Orono's first ever Citizens Police Academy, which is an eight week program that was developed by the Orono Police Department. Peterson commended the Police Department for their efforts in developing this program. PUBLIC SERVICE DIRECTOR'S REPORT *8. PURCHASE OF BRUSH CHIPPER Sansevere moved, White seconded, to approve the purchase of a Public Works replacement brush chipper from Vermeer Sales & Service, Burnsville, Minnesota, at a total cost of $20,460, to be funded from the year 2004 Improvement and Equipment Outlay Fund Budget. VOTE: Ayes 4, Nays 0. *9. REQUEST FOR FINAL PAYMENT — STUBBS BAY PROJECT Sansevere moved, White seconded, to approve Request for Final Payment, Stubbs Bay/ Watertown Road Erosion Project, to Minnesota Native Landscapes, Inc., in the amount of • $3,168.35. VOTE: Ayes 4, Nays 0. RECOGNITION 2. JEANNE MABUSTH — RESOLUTION • Peterson moved, White seconded, to table the Resolution of Appreciation to Jeanne Mabusth. VOTE: Ayes 4, Nays 0. CITY ADMINISTRATOR'S REPORT 10. ADOPT PRELIMINARY 2005 TAX LEVY AND BUDGET — RESOLUTION NO. 5227 AND NO. 5228 Moorse stated the Council is required to certify the City's preliminary tax levy to the County by September 15. Moorse indicated once the preliminary tax levy is certified, that levy is reflected in the truth -in- taxation statements sent out by the county. Moorse noted the truth -in- taxation hearing has been scheduled for December 6, with the final levy adoption hearing being scheduled for December 13. Moorse stated based on the proposed budget and tax levy, and the substantial increase in the City's tax capacity, the City's share of the property tax bill for Orono property owners will only increase by PAGE 15 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, September 13, 2004 7:00 o'clock p.m. (Adopt Preliminary 2005 Tax Levy and Budget, Continued) • 1.1 percent. Moorse stated a significant portion of the tax base increase is due to new construction and redevelopment occurring within the City. White moved, Peterson seconded, to adopt RESOLUTION NO. 5227 and RESOLUTION NO. 5228, Resolutions approving the preliminary tax levy to fund the 2005 budget. VOTE: Ayes 4, Nays 0. White moved, McMillan seconded, to adopt RESOLUTION NO. 5227 and RESOLUTION NO. 5228, Resolutions approving the preliminary 2005 budget. VOTE: Ayes 4, Nays 0. *11. SELECTION OF DATES FOR TRUTH IN TAXATION HEARINGS Sansevere moved, White seconded, to schedule the Truth in Taxation Hearing for 5:30 p.m., Monday, December 6, and the continuation or subsequent hearing for 7:00 p.m., Monday, December 13, with both hearings to be held in the Council Chambers. VOTE: Ayes 4, Nays 0. *12. DONATION ACCEPTANCE — ORONO POLICE DEPARTMENT Sansevere moved, White seconded, to approve the donation of a Shearing Universal Microchip Reader by Dr. Patricia Waples of the Excelsior Animal Hospital for use by the • Orono Police Department and thanking her for the generous donation in the interest of pets and their owners. VOTE: Ayes 4, Nays 0. Sansevere thanked Dr. Waples for her generous donation. CITY ATTORNEY'S REPORT None LICENSES * 13. KENNEL 1. James Bull 1330 Cherry Place PAGE 16 • • MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, September 13, 2004 7:00 o'clock p.m. (Licenses, Continued) *14. SPECIAL EVENT — HOPE CHEST FOR BREAST CANCER & LAWFUL GAMBLING — RESOLUTION 1. Hope Chest for Breast Cancer Private Party 3850 South Shoreline Drive September 30, 2004 6:00 p.m. — 9:00 p.m. *15. SPECIAL EVENT —LONG LAKE FIRE DEPARTMENT —STEAK FRY 1. Long Lake Fire Department Fundraiser: Steak Fry with Live Music 340 Willow Drive, Orono, MN 55356 Saturday, September 25, 2004 5:30 p.m. - Midnight *16. TEMPORARY LIQUOR LICENSE — ORONO LIONS 1. Orono Lions • Long Lake Fire Department — Fundraiser: Steak Fry with live music Saturday, September 25, 2004 Long Lake Fire Department 340 Willow Drive Sansevere moved, White seconded, to approve all licenses. VOTE: Ayes 4, Nays 0. *17. BILLS Sansevere moved, White seconded, to approve payment of the All Funds Account. VOTE: Ayes 4, Nays 0. ADJOURNMENT Peterson moved, White seconded, to adjourn the Orono City Council meeting of September 13, 2004 at 9:20 p.m. ATTEST: Linda S. Vee, City Clerk Barbara Peterson, Mayor • PAGE 17