HomeMy WebLinkAboutre wetland landscaping activity O ._
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`4k',Egg04' 2750 Keiley Parkway P.O. Box 66
Orono, MN 55356 Crystal Bay, MN 55323-0066
October 18, 2004
David J. & Francine K. Delaney
3051 Farview Lane
Long Lake, MN 55356
RE: 3051 Farview Lane—Wetland Landscaping Activity
Dear Mr. & Mrs. Delaney:
On August 23, 2004 the City Council rescinded tlle Floodplain and Wetland Management
ordinances, adopted a new Floodplain ordinance, and enacted a moratorium on all work
within, and within 26' of, all wetlands within the meaning of that term given it in
Minnesota Statutes Section 103G.005, Subd. 19. Absent a formal delineation, I believe it
is likely that all the wetlands on your property are subject to the moratorium.
On or about August 25`�' a stop work order was posted at the above property as land
alteration work was apparently being conducted within a wetland and wetland buffer
without City or Minnehaha Creek Watershed District (MCWD) permits. It is my
understanding that Matt Bolterman from the City and Jesse Carlson from the MCWD
subsequently conducted a joint inspection of the site. The City understands that Mr.
Carlson concluded that the work was done within a Wetland Conservation Act (WCA)
protected wetland but comprised less than 400 square feet of impacted area and meets the
"deminimus" standards of the WCA, and therefore the work was not prohibited by WCA
Rules.
After discussions with City staff and review of City maps, our conclusion is that the
wetland area impacted by the land alteration work was not a City-protected wetland at the
time the work was done, although the larger wetland nearer the lake was City protected.
Through your attorney you are seeking City permission to finish the work that was done
to the wetland by seeding/sodding that area. We have concluded that the remaining wark
will be treated as restoration, and will allow the completion of the work upon issuance of
the land alteration permit for which your attorney has applied.
With regard to your expansion and enhancement of the gravel path which leads to the
lake, Orono Building Official Lyle Oman granted approval to place the gravel without a
plastic or fabric weed barrier underlayment with the understanding that this was a path
for foot traffic. Mr. Oman was unaware of the now apparent use of that path for golf cart
or other vehicular traffic. Such vehicular use by definition(Resolution No. 4006 attached)
makes the graveled area hardcover. Hardcover is prohibited within 75' of the lakeshore
Telephone(952)249-4600 • Fax(952)249-4616
www.ci.orono.mn.us
3051 Farview Lane
October 18,2004
Page 2
and within 26' of City-protected wetlands. I am advised by Matt Bolterman that the area
where the gcavel path was expanded is more than 75' from the lake, but potentially less
than 26' from wetlands. To our knowledge, initial construction of the gravel path to the
lake was never approved by the City. Although expansion of the existing gravel path
does not require permits, its expansion within 26' of a wetland and within 75' of the lake
is prohibited by City ordinances. City Ordinances do allow the creation of lake access
stairways within 75' of the lake on challenging lots where steep slopes are an issue, but
do not allow placement of hardcover driving surfaces.
In order to be in compliance with City Ordinances, you are advised to do the following:
l. Obtain a land alteration pern�it for the wetland work that was done and its
restoration, and complete the restoration. I note that an application was received
on September 7 with a sketch and cover letter noting a check is enclosed, but we
have no record of the check being submitted.
2. Remove any gravel area that has recently been expanded beyond the boundaries
of whatever original gravel was in place, within 75' of the lake and within 26' of
both wetlands.
Please be advised that any future expansion of the gravel pathway beyond its pre-existing
width, in areas within 26' of the wetland and within 75' of the lake, is prohibited and will
not be allowed without variance approval. The hardcover ordinance currently in effect is
shown below. A copy of the wetland inoratorium currently in effect, is attached
Sec. 78-1288. Hard cover limitatio�:s.
(a) No hnrd cover or impe�vious su�face shall be placed, located or consh•ucted within 75 feet of
the o��dinary higTi water level of c��zy lake or tributary, except fo�• stairways, lifts, landi�ags a�id
lockboxes as regulated elsewhere in this Code.
(b) Betx�een 75 feet and 250 feet of the OHWL, there shall be no greater tha�i 25 percent hard
cover. Between 250 feet ar:�f 500 feet of the OHWL the�•e shall be no greater than 30 percent
ha��dcove�•. Between 500 feet and 1,000 feet of t/ze OHWL there shall be no grenter than 35
percent hardcover.
(Ord. No. 101 2nd serics,�'1(10.56(16)(L)), 2-24-1992)
Please contact me at 952-249-4600 if you have any questions.
Sincerely �
,
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Michael P. Gaffron
Planning Director
encl.
cc: Matt Bolterman
Lyle Oman
Jesse Caxlson, MCWD
Mark Kaster, Dorsey&Whitney
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ORDINANCE NO. 17, 3RD SERIES
INTERIM ORDINANCE PURSUANT TO MINNESOTA STATUTES SECTION
462.355, SUBDIVISION 4, ESTABLISHING A MORATORIUM PROHIBITING
WETLAND ALTERATIONS AND PROHIBITING THE GRANTING OF
BUILDING OR LAND ALTERATION PERMITS OR PERMIT APPROVALS,
PRELIMINARY SUBDIVISION APPROVAL, ZONING (CUP/VARIANCE)
APPROVAL, REZONING, OR PUD APPROVAL, INVOLVING ALTERATIONS
OF WETLANDS AND AREAS WITHIN 26 FEET OF WETLANDS
THE CITY OF ORONO ORDAINS:
The Municipal Code of the City of Orono is amended by adding Ordinance No. 17, 3rd
Series.
SECTION 1. Statement of Policv. The City Council in order to update its
floodplain ordinances no later than September 2, 2004 to remain in compliance with the
requirements of the Federal Emergency Management Agency (FEMA) and the Minnesota
Department of Natural Resources, adopted Ordinance No. 16, Third Series on August 23,
2004. Said Ordinance deleted both the existing floodplain and wetland regulations which
were intertwined within the pre-existing ordinance, but only adopted new floodplain
regulations, leaving the City without wetland regulations in effect.
The City Council has reviewed a proposed new wetland ordinance to replace the prior
ordinance. However, the City Council has not yet had adequate opportunity to fully study
and consider the potential impacts of the proposed new wetland ordinance, and the
Council desires to further study and evaluate the proposed ordinance before its adoption.
The Council finds that in order to prevent any activities that would negatively alter or
impact wetlands while the proposed ordinance is being studied, it is desirable that the
Council establish a moratorium on all wetland alteration activities until a study has been
completed and a new wetland ordinance adopted.
Since enactment of an amendment to the code would undoubtedly modify previous
wetland regulations, the granting of building permits and land alteration permits,
preliminary approval of subdivision applications, zoning (CUP/Variance) applications,
rezoning applications, or PUDs, which involve wetland alterations would be contrary to
the purpose of the zoning enabling act, Minnesota Statutes Section 462.351, et seq. The
Council further finds that it would be unwise, improper and unjust to allow wetland
alteration activity to occur during this study.
SECTION 2. Moratorium Declaration. The City Council hereby declares a
moratorium on all activity involving alteration of wetlands. During the effective period
of the moratorium, land alteration activity on all real property within the City of Orono
which can be defined as "wetlands" within the meaning of that term given it in Minnesota
Statutes Section 103G.005, Subd. 19, and on all property within 26 feet of the boundary
of such wetlands, is prohibited.
121092142v1 786748
SECTION 3. Stuav. The City Council requires its staff to initiate a study
regarding the impacts of the proposed wetland ordinance to determine whether the
proposed ordinance fulfills the underlying purposes of the City's land use and zoning
provisions.
SECTION 4. Restrictions on the Granting of Building Permits, Land Alteration
Permits, Preliminary Subdivision A�proval, Zoning�CUP/VarianceL Approval
Rezonin�, or PUD approvals During the effective period of the moratorium, no building
permit, land alteration permit, preliminary subdivision approval, Zoning (CUP/Variance)
approval, Rezoning, or PUD approval, shall be given by the City staff or Council
involving alteration of wetlands and lands within 26 feet of wetlands.
SECTION 5. Duration. This Ordinance shall expire within six months of the
passage of this Ordinance by the City Council, without Council action, or it may be
repealed earlier if the Council determines that the requisite studies have been completed
and adopted and that appropriate evaluation and action, including any necessary revisions
of the zoning code, have been finalized. The duration of this Ordinance may be extended
by adoption of a subsequent Ordinance for a total of not to exceed the statutory limits in
Minn. Stat. 462.355, subdivision 4.
SECTION 6. Variances. The Council may grant a variance to this Ordinance if
the Council finds after careful review of all the facts that a proposal is not contrary to the
intent of the Comprehensive Community Management Plan, that it is compatible with the
zoning and official control amendments being considered by the City, that it does not
adversely impact the health, safety or welfare of the citizens and that it otherwise meets
the requirements of the Orono City Code and state law.
SECTION 7. Se arp abilit� Every section, provision, or part of this Ordinance is
declared separable from every other section, provision or part; and if any section,
provision, or part thereof or action taken hereunder shall be held invalid, it shall not affect
any other section, provision, or part.
SECTION 8. Publication. This Ordinance shall be published in THE PIONEER
and THE LAKER and shall be effective immediately.
Adopted by the City Council of the City of Orono on this 23rd day of August,
2004, by a vote of 4 ayes and 0 nays.
ATTEST:
Linda S. Vee, City Clerk Barbara Peterson, Mayor
121092142v1 786748
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A RESOLUTTON
ESTABLISHING POLICY
REGARDING THE HARDCOVER STATUS
OF PLASTIC AND FABRIC LA.I�TDSCAPING MATERIALS
AND DEFIl�TING THE DISTII\TCTION BETWEEN
STRUCTURA.L AND NON-STRUCTURAL HARDCOVER
VVH:EREAS,the City of Orono since 1975 has regulated the use and placenlent of hardcover
on land within 1000 feet of lake sliore.lines; and
VYHEIZEAS, City Ordinances define hardcover as "Any structure, black�top, or other
nZaterial wluch interferes to any degree wit11 the direct absorption of rainfall into tlze ground"; and
��VHEREAS, the City Ordinances placing limitations on the use of hardcover divide the
1000-foot re�ulatory zone into four tiered "hardcover zones" which are conuiloi�ly referred to as
"the 0-75' zone", "the 75-2�0' zone", "the 250-500' zone", and "tlle �00-1000' zone"; and said zones
are respectively allowed 0% hardcover, 25% hardcover, 30%hardcover, a�1d �5% hardcover; and
V4�HEREAS,.the City Council has long considered that plastic sheeting and weed control
fabrics (llereinafter refened to as 'plastic or fabric') shall be considered as hardcover for the purpose
of administering the hardcover ordinances, regardless of the extent to which such materials are
actually perineable; and
V�H.EREAS,the City has never issued perniits for plac.ement of plastic or fabric on private
or public property, and all such nlaterial where it currently e�ists in excess of the allowed hardcover
pereentages on any given properiy, is conside.red as non-confomlin�; and
�'VHEREAS, the City is continuously faced with requests for variances to the hardcover
ordinances wherein applicants are required to provide calculations identifyuzg the various types aiid
square footages of hardcover witlun a property; and . .
WHEREAS, hardcover variance requests are coinrnonly reviewed by the City with the
underlying intent that the percentage of hardcover be reduced from the pre-existing condition; and
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VVHEREAS, property o��,�ners conunonl}� request hardcover variances for �uhich their
proposal includes a reduction in the overall hardcover, but typically by an increase in the amount
of'structural hardcover' witll concurrent removals of'noii-structural hardcover'; and
WHEREAS, the City has not previously fomlally defined by ordinance or resolution the
distinction betZ�een 'structural' and 'non-structural' hardcover, but lzas conlmonly considered such
a distinction«-hen revie�ving hardcover variance requests; and
VVHEREAS, the City Council finds that it ��lould be beneficial to fonnally define the
distinction bet��reen structural and non-structural hardcover; and
«IEREAS, the City Council fu�ds that it is inappropriate to coiLsider the removal of non-
co�Zfonl�inQ plastic or fabric as a �ood-faith hardcover reduction ��hen considerinj hardcover
variance requests; and
��VHEREAS,the City Council finds that to the extent practicable,all non-confornluzg plastic
or fabric should be removed from properties for wluch a hardcover variance is requested, to reduce
the potential for 'tradinc' non-confornlin� non-structural lzardcover to gain structural hardcover.
NOW, THEREFORE BE IT RESOLVED by the City Council of the City of Orono,
Mizuzesota:
1. Structural Hardcover shall be defined as tllose items of hardcover���luch require a
building permit,which extend above the ground surface or into the ground, or urhich
are constructed rather t11an placed.
2. Non-structural Hardcover shall be defined as those items of hardcover wluch do not
require a building pennit, which exist on the grotuzd surface but do not extend
substantially above or below b ade, or��hich are placed on the ground surface rather
than constructed.
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3. The follo«Jin� items are considered as hardc.over:
Structural Hardcover Non-Structural Hardcover
Buildings Roads and shoulders
Tennis courts Drive�vays(Concrete, asphalt,gravel, dirt)
Pools, incl. water surface Sidewalks,ramps, etc.
Decks, re�ardless of spacing Any surface intended to be driven on
Roofs of any sort, incl. some roof overhangs Landscape beds lined v��ith plastic sheeting
Play structure p]atfom�s Landscape beds lined with weed-prevention faUric
Temporary buildings Tops of rock or timber retaining���alls
Any vehic]e,material, or equipment which Patios, steppin�stones
prevents direct absorbtion of rainfall into the Porous pavements (various)
ground and���l�ich is stored for an extended
period of time
4. All plastic or fabric located in tl�e 0-7�'hardcover zones witlun tlie City is considered
as non-conforniing ui�less specific approval for saine is granted by the City Council
at some date after the adoption of tlus ordinance.
5. All plastic or fabric in hardcover zones other than the 0-75' zone is considered as
non-conforn�in���hen the combined structural and non-structural hardcover in said
zones exceeds the allowed hardcover percentages for said zones.
6. For any project that has been the subject of a hardcover variance approval, no
building pernlit u�ill be issued until all non-confornling plastic or fabric has been
removed from the property. Hardcover calculations presented at the time of
variance application s11a11 reflect all hardcover remaining on the property after the
non-conformin� plastic or fabric 11as been removed.
Adopted by the City Council of the City of Orono this 24th day of November, 1997.
ATTEST:
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orothy M, H 1' , City Clerk Gabri 1 Jabbouz,Mayo
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§78-1110 ORONO CITY CODE
the adoption of this article. The provisions of this is incompatible with the policies expressed in this
article, including the designation of floodplain article and the preservation of those conservation
and wetlands conservation areas, shall be in areas in their natural state.
addition to all other provisions of this chapter. (Code 1984, § 10.55(8))
Whenever conflicts occur between other provi-
sions of this chapter and provisions of this article, Sec. 78-1113. Floodway district (FW).
the most restrictive provision shall prevail.
(Code 1984, § 10.55(6)) The following uses have a low flood damage
potential and do not obstruct flood flows. These
Sec. 78-1111. Regulatory flood protection el- uses shall be permitted within the floodway dis-
evation. trict to the extent that they are not prohibited by
any other provision of this Code and provided all
The regulatory flood protection elevation shall permits or authorizations are received as may be
be an elevation no lower than one foot above the required by other provisions of this Code or reg-
elevation of the regional flood plus any increases ulation of other governmental agencies having
in flood elevation caused by encroachments on the jurisdiction,including without limitation,the Min-
floodplain. nesota Department of Natural Resources, the
Minnehaha Creek Watershed District, and the
(1) The regulatory flood protection elevation Lake Minnetonka Conservation District. In addi-
within the floodway and flood fringe dis- tion, no use shall adversely affect the capacity of
tricts shall be established by adding 1.0 the channels or floodways or any tributary to the
foot to the base flood water surface eleva- main stream or of any drainage ditch, or any
tions within floodway listed in the floodway other drainage facility or system; and no use shall
data table contained in the flood insur- adversely affect the quality or quantity of ground-
ance study. Regulatory flood protection water runoff or the quality of the natural environ-
elevations between cross sections shall be ment.
interpolated.
(1) Permitted uses,when in conformance with
(2) The regulatory flood protection elevation this chapter, are:
for Lake Minnetonka shall be 932.5 MSL.
a. Agricultural uses, such as pasture,
(3) The regulatory flood protection elevation grazing and wild crop harvesting.
within the general floodplain district shall
be calculated by a qualified registered b. Fish and wildlife sanctuaries.
professional engineer in accordance with c. Recreational uses, such as fishing
procedures set forth in this article. accesses, unpaved hiking, biking,
(Code 1984, § 10.55(7)) horseback or nature trails, and pic-
nic areas.
`�i Sec. 78-1112. Development restricted;prohi- d. Residential uses, such as lawns and
��� bition. gardens, provided no filling, grading
or hard cover is involved.
Except as specifically permitted, no filling,
grading, dredging, excavation,hard cover, tempo- e. Seasonally installed residential boat
rary or permanent structures,obstructions,septic docks for single-family dwellings.
systems, well or other construction shall be al-
lowed within the floodplain and wetlands conser- £ Natural stone riprap shoreline pro-
vation area; nor on any lands within 26 feet of tection.
such area; nor on any land within 75 feet of the g. Sand beach blankets meeting the
ordinary highwater elevation of any lake shore- requirements of the department of
line, nor on land abutting, adjoining or affecting natural resources regulation
the area if such activity upon those adjacent areas 6MCAR,15021B.
CD78:172