HomeMy WebLinkAbout06/18/2012 Planning Commission Minutes � �
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MINUTES OF TI�
ORONO PLANNING COMIVIISSION MEETING
Monday,June 18,2012
6:30 o'clock p.m.
ROLL CALL
The Orono Planning Commission met on the above-mentioned date with the following members present:
Acting Chair Denise Leskinen, Commissioners Lizz Levang,John Thiesse,Kevin Landgraver,Bruce�
Lemke,and Denny Walsh. Representing Staff were Assistant CiTy Administrator for Long-Term
Strategic Planning Mike Gaffron,Planning Coordinator Melanie Curtis,Planning Consultant Ben Gozola,
and Recorder Jackie Young. City Council Member Aaron Printup was present. '
Acting Chair Leskinen called the meeting to order at 6:32 p.m., followed by the Pledge of Allegiance.
CONSENT AGENDA
Item No. 7 was added to the Consent Agenda.
Levang moved,Thiesse seconded,to approve the Consent Agenda as revised.
Acting Chair Leskinen opened the public hearing for Item No. 7 at 6:35 p.m.
There were no public comments regarding Item No. 7.
Acting Chair Leskinen closed the public hearing at 6:35 p.m.
VOTE: Ayes 6,Nays 0.
*1. APPROVAL OF PLANNING COMMISSION MEETING MINUTES OF MAY 21,2012
Levang moved,Thiesse seconded,to approve the Orono Planning Commission minutes of May 21,
2012,as submitted. VOTE: Ayes 6,Nays 0.
OLD BUSINESS �
2. #10-3491 CITY OF ORONO,ZONING CODE AMENDMENTS-HARDCOVER,6:37
P.M.-7:10 P.M.
Ben Gozola addressed the Planning Commission regarding the draft zoning code amendment regulating
hardcover. Gozola indicated the zoning code amendment before the Planning Commission tonight is a
culmination of significant efforts that have been put forth by the citizens of Orono,by the Planning
Commission, and the City Council to reassess how hardcover should be regulated throughout the City.
The reasons for the City undertaking this review were to help Orono regulate hardcover on the various
lots throughout the City in accordance with their Comprehensive Plan and to make it easier for
landowners who have been unable to adhere to a maximum of 18 percent hardcover on their lots.
Gozola indicated a survey of 30 communities, including Orono,that was completed by the MCWD at the
beginning of this process showed that most communities allow for at least 25 percent hardcover,with
many of them allowing more than 25 percent. Of all those communities that were surveyed,a majority of
them had passed between zero and three hardcover variances. Comparatively in that same survey,the
City of Orono estimated that approximately 160 variances may have been approved for hardcover issues.
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As a result of the survey, it is clear that the City of Orono has been approving far more hardcover
variances than are generally seen in the other surrounding communities. Gozola stated any time a City is
granting that number of variances, it speaks to a problem with the code requirement and not to the
variance process.
In recognition of all these variances that have been approved, along with the frequent requests over the
years by the homeowners asking for more flexibility with regards to hardcover,the City Council created a
task force to study the issue and to help draft some language for a new ordinance. The process began
with the Planning Commission and City Council compiling a list of goals for the draft ordinance. Those �
goals were subsequently presented to the task force that was established by the City Council. The task
force helped develop more specifics with each of the goals and assisted in the creation of an overall
framework for the performance based option that was initially proposed.
The performance based option was specifically crafted to address each and every one of the identified
goals but it was deemed to be a little ahead of its time by the Planning Commission and City Council.
' Basically the performance based option coordinated all of the City's hardcover regulations into one
overlay district,multiple terms referring to the same thing were revised and consolidated, gaps in the
current regulatory system were filled as appropriate,and the focus of hardcover regulation was moved
from meeting a straight hardcover regulation towards providing evidence that a proposed plan could meet
a water quality goal for the City.
Gozola indicated that all parties seemed to like what the performance based option had to offer but there
were some major concerns that were raised against moving forward with that option. The first concern
focused on the absence of the anticipated SMIDS calculator,which is the Stormwater Minimal Impact �
Design Standards that is still underway at the state level. Gozola stated the City had anticipated it would
be done by this point in time but work is still being completed on that method of calculation. The study,
once it is a completed,will provide a guide to all cities in Minnesota on the state-of-the-art technology in
stormwater management with a focus on better water quality and increased flexibility for regulatory
programs. The SMIDS calculator IS something that will help communities examine proposed BMPs
fairly from site to site and help lower overall costs for residents who are preparing plans to show that they
are meeting a certain water quality. Without that calculator,the City Council expressed a lot of concern
about potential costs for applicants and fairness in how different properties would be looked at. The final
issue with the performance based option was the identified need for an enforcement mechanism. If the
City is approving plans with specialized BMPs on a site-to-site basis, it becomes apparent that the City
will need to perioiiically inspect the properties to make sure that these BMPs are installed properly and
maintained properly over time. Gozola stated at this particular point the City was not interested in that
route.
Gozola stated the City Council then decided that a middle ground option would be more appropriate at
this time and Staff was asked to amend the performance based option and only focus on what was termed
the low hanging fruit issues. The first goal was cleaning up the terms so that only one term is used,which
is hardcover. The second goal was to clean up the definition of hardcover. Instead of saying that
everything that does not allow water into the ground would be deemed hardcover,the City Council
wanted to provide some flexibility. The final goals were to close the gaps in the regulations,to allow
each homeowner a credit for a patio or a deck,and elimination of the roof overhang penalty. Gozola
noted this option abolishes the various hardcover zones and creates a new overlay district.
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Gozola stated the new overlay district will be called the Stormwater Quality Overlay District. Gozola
noted the current code was amended in 11 different areas. The ordinance includes a map that specifically
identifies all parcels that are to be regulated. The map also identifies all of the parcels that are currently
regulated under the existing ordinance,which basically comprises essentially all of the properties that are
within 1,000 feet of the lakeshore or 300 feet of streams. That map demonstrates there are gaps in the
current system of parcels that are unregulated even though they are completely surrounded by regulated
parcels. The parcels shown in purple are the parcels that are proposed to be regulated under the new
ordinance. Gozola noted this is a slight increase in the total number of properties that would be regulated. ,
As it relates to the ordinance language itself, Section 78-1 of the zoning chapter includes various
defmitions such as building footprint,building coverage,hardcover, lot coverage,and permeable lining.
The definitions of building footprint and building coverage were simplified in the new ordinance. An
example of building footprint would be the footprint of one particular structure. Building coverage would
be the total of all structures. Lot coverage and the regulation of lot coverage was not a focus of this
ordinance review. The proposed definition was taken directly from the wording that is used in current
Sections 78, 825,and 78-1403. Adding this definition should not change how lot coverage has been
� regulated over the years.
The new ordinance proposes some amendments to the existing definition of hardcover. Currently the
existing definition says anything that does not allow water into the ground is considered hardcover. The
new definition will exclude certain things such as permeable landscape fabric,the first 100 square feet of
permeable patio or deck with pervious surface below,handicap ramps would be excluded provided there
is permeable surface below it, and retaining walls would no longer count as hardcover. Gozola noted that
the initial definition of permeable lining had 100 percent and that he would suggest that number be
removed from the draft ordinance. The hardcover definition has a minor change to the language to make
it an "and/or statement"rather than an "and statement" since the goal is to allow one or the other.
Section 2 of the ordinance is the first example of how the current hardcover regulations are being moved
from other sections of the code into the new overlay district. Section 78-626 (6) is proposing to remove ,
the hardcover regulations in that section in its entirety and place those regulations into the overlay district.
Subdivision 14 has a change from the use of the term hard surface materials to hardcover. Section 3 of
the ordinance also changes the term hard surface to hardcover.
As it relates to Section 4 of the new ordinance,that language cleans up existing Section 78-825. The first
change was that the language in its existing form does not contain any subsection headings. To be
consistent with the rest of the code, Gozola indicated he is proposing that that section be clarified as well
as eliminating the industrial district hardcover regulations since those will be moved to the new overlay
district.
As it relates to Sections 5,6, and 7,similar changes have also been made. Since a new hardcover •
definition has been established in the main section of the zoning code,the existing definition in 78-1211
will be eliminated by Section 5. Section 78-1288,which is the section that contains the majority of the .
City's existing hardcover regulations, is proposed in Section 6 to be deleted in its entirety and replaced by
language stating that hardcover on lots within the shoreland district need to adhere to the new overlay �
district. Section 7 removes some existing language that allows for the transfer of hardcover between the
hardcover zones. That language will no longer be necessary since those zones will not exist under the
new ordinance.
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Section 8 will update terms to reference hardcover rather than impervious surface. Section 9 makes a
slight amendment to the definition of MLCCS by inserting the term hardcover rather than impervious �
surface. Section 10 inserts some reserve sections at the end of the existing City Code to set up the
location for the new overlay district and follows the same format as the existing code.
Section 11 is the main body of the overlay district and follows the existing format used in the rest of the
code. Section XIII,Division 1, is entitled In General,which outlines the purpose of the regulations and
adopts the official map. Under this section, if a parcel is identified in the overlay district, it needs to
adhere to the regulations of the new ordinance. Division 2 of the overlay district establishes the general
regulations that all parcels within the overlay district need to adhere to and contains the majority of the
regulations that have been moved from the existing sections.
Section 78-1680 maintains the exiting prohibition on hardcover within 75 feet of the ordinary high water
mark for lakes and streams. Sections 78-1681 and 78-1682 maintain the existing regulations on
driveways and shared driveways. Section 78-1683 re-establishes the existing regulations for standard
hardcover, such as proof of a garage,proof that there will be a sidewalk adjacent to the driveway up to the
front door,etc. It also adds a new subdivision that states if there is hardcover encroaching on your
neighbor's property,that hardcover will be counted against you,which is a clarification from the e�sting
language.
Gozola noted Section 78-1684 re-establishes existing hardcover exclusions such as public roads and trails
and follows up the new language in the last section with clarification that a property owner will not be
penalized for their neighbor's hardcover. Section 78-1685, entitled massing standards,re-establishes the
existing standards for massing in industrial and nonindustrial areas.
Division 3 contains the specific regulations based on the assigned protection tier for the underlying
zoning district. Gozola noted the existing code does not regulate all of these properties in the same way
and neither will the new ordinance. As is the case with the current regulations,the new regulations are
going to be more restrictive with properties that are near the lake and less restrictive on properties that are
located further from the water bodies.The proposed regulations under this proposed overlay district are
essentially the same as in the existing code. In the new ordinance,all properties are assigned a protection �
tier on the overlay map. If the property is primarily regulated by the second hardcover zone, it would be
Tier 2. These tiers correspond directly to the tiers listed in the first section of Division 3. Tier 1 would
regulate parcels based on 25 percent of the gross land area between the OHWL and a distance of 250
from the OHWL. Tier 2 is 30 percent based on the gross lot area,Tier 3 is regulating 35 percent based on
the gross lot area,Tier 4 is 50 percent, and Tier 5 is 85 percent. These percentages are exactly the same
as what is in the existing ordinance with the exception of Tier 1.
Under the City's current code,the land area from the OHWL to 75 feet from the OHWL is currently .
excluded from the area from which hardcover is calculated on a parcel. Under the new overlay district,
that area would now be factored into that calculation,which would allow for additional hardcover
throughout the community. This amendment is not going to represent a significant increase in actual
hardcover since the community has regularly granted variances up to and around 25 percent for a large
number of properties. Essentially with this change the City is acknowledging that they are likely to grant
variances up to 25 percent anyway so that will now be a permitted level. Gozola stated along with this
change, it is going to be very important for the Planning Commission and the City Council to change its
mindset with regard to how hardcover variances are granted. The City should move away from granting
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variances to a more strict approach that really analyzes whether an actual practical difficulty exists before
a hardcover variance is granted.
The final division of the new ordinance focuses on legally nonconforming hardcover and re-establishes
some existing language into the new overlay district.
Gozola stated the ordinance before the Planning Commission is a culmination of over a year's worth of
effort, multiple task force meetings, and multiple joint meetings between the Planning Commission and
the City Council. The proposed language was thoroughly debated and deemed by the City Council and
the Planning Commission to be the best way to proceed at this time. Should the City Council wish to
pursue the performance based option,the framework would allow that language to easily be moved
directly into the City's Code.
Walsh asked whether play sets, swing sets,and sand boxes would be regulated under the hardcover
definitions contained in Section 1 and Section 2.
Gozola stated those items have not been specifically called out in the definition. If the Planning
' Commission felt there needed to be more specificity on those items,they would have the option of adding
that language at this time.
Walsh commented it would be a good topic to discuss since there are a number of play sets in the City
and there should be some type of resolution to that item.
Gozola stated in his view a play set would not be considered hardcover similar to a retaining wall.
Gozola stated in his view the water would go down through the sand unless there is a liner installed.
Walsh stated he would like to look at simple solutions to address some of these potential issues.
Thiesse commented some play sets are relatively large.
Gaffron noted the City does have a property where the play set has gradually grown over the years and
that the question becomes when should a play set be considered hardcover.
Walsh commented he would like to see some type of language regulating those items to prevent any
issues.
Levang stated some sand boxes do have a bottom or a liner to them.
Gozola sYated that would be one way to differentiate them.
Gaffron stated the other issue for Staff is that they become a visual encroachment as they get larger and
that the City should consider regulating them as either a structural encroachment or a visual
encroachment. Gaffron commented that is probably beyond the scope of tonight's discussion regarding
hardcover but that it is part of the mix for regulating those types of structures.
Landgraver asked if the play sets and sand boxes should be considered as a separate item.
Gaffron stated in his view it should be a separate item and discussed at some point in the future.
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Walsh stated it would be reasonable for the Planning Commission to make a motion accepting the new
ordinance and then recommend that the City Council start addressing the issue of play sets and sand
boxes. �
Levang noted on Page 11 of the original version,under Section 78-1701, Tier 1 parcels,Point B,
hardcover beyond 250 feet from the OHWL is unregulated.
Gozola stated the reason Staff broke that up into two different subsets is that basically Tier I parcels will
be regulated from the OHWL to 250 feet and that there are a number of examples throughout the
community where there are 1,000 foot long lots. Staff wanted to somehow keep those lots on the same
level as the majority of the lakeshore lots in the community. By saying that the hardcover is going to be
regulated based on that 250 feet,the City hopefully is creating a more level playing field for all lots. By
making it unregulated beyond 250 feet,you build in an incentive to lakeshore properties to move the
house back or move the hardcover away from the goal,which was another goal of the City.
Levang asked what it means by unregulated.
Gozola stated beyond that 250 feet,there would be no hardcover calculation done.
Levang asked if they would be entitled to build as big of a structure as they want and have as much
hardcover as they want.
Gozola indicated as the language is currently written,that would be correct.
Walsh stated he remembers an earlier discussion where the City expressed a desire to go away from the
multiple zones but that this unregulated area presents somewhat of a dilemma.
Gozola noted at the presentation earlier this year they demonstrated that on the larger lots the allowable
hardcover numbers were so large that they could not imagine a situation where someone would approach
that overall hardcover number. Gozola indicated he does not have a concern that someone is going to
construct a residence that is so large it will cover the entire lot.
Thiesse commented that a maximum of 25 percent hardcover would be safer than no regulations at all.
Gozola indicated he would be fine with that restriction.
Gaffron pointed out on a lot 500 feet deep, if you get 25 percent on the first 250 feet,you can then use
that between the 75-250 foot zone. On the next 250 feet,you can get 100 percent hardcover,which is
concerning. Gaffron stated he has a feeling there will be someone out there that will want to do that and
that in his view there should be a different way to word the language without allowing that portion of the
property to be completely unregulated.
Levang noted at the last Planning Commission work session the majority of the Planning Commission
was not comfortable with that area being completely unregulated.
Gozola stated in light of that concern,he would suggest that under Sub B,rather than saying unregulated,
the Planning Commission should set a number that they are comfortable with.
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Walsh noted Tier 1 and Tier 2 properties get regulated 250-500 feet back and that he does not feel it
would be unrealistic to impose a hardcover limit on people who have land further back than that. Walsh
commented the City may be opening up Pandora's Box if they do not limit hardcover in that area.
�
Gozola stated that would be a logical approach and that he would recommend they use the 30 percent
mark as is proposed for Tier 2 properties.
Acting Chair Leskinen opened the public hearing at 7:08 p.m.
There were no public comments regarding this application.
Acting Chair Leskinen closed the public hearing at 7:08 p.m.
Landgraver commented that a considerable amount of work has gone into this process and has resulted in
a good ordinance. Landgraver stated he would like to see this ordinance move forward to the City
Council with the one change discussed tonight.
Walsh moved,Levang seconded,to recommend approval of Application#10-3491,City of Orono,
Zoning Code Amendments-Hardcover,an Ordinance Amending Regulations Governing the
Regulation of Hardcover and Esta6lishing the Stormwater Quality Overlay District with the
exception that Section 78-1700,No. 1B,be revised to require a 30 percent maximum hardcover on
the unregulated area,and to recommend that the City Council take under advisement the play
. set/sand box issue at some point in the future. VOTE: Ayes 6,Nays 0.
NEW BUSINESS �
3. #12-3555 KATI�RINE FOX TRUST, 1095 FERNDALE ROAD WEST,VARIANCES
AND CONDITIONAL USE PERMIT,7:10 P.M.-7:24 P.M.
David Fox,Applicant,was present.
Gaffron stated the applicant is requesting approval of variances and a conditional use permit originally
granted via Resolution No. 5872 on October 29,2009,and renewed via Resolution No. 6038 on Apri125,
2011. The original approvals and extension have expired and the applicant is requesting that the identical
approvals be re-granted per the terms of the prior approvals.
The approvals granted in 2009 include:
1. A variance to allow construction of a new residence on a lot 1.27 acres in area and that has 176
feet in width at the OHWL and 174 feet in width at the 75-foot setback from the OHWL where
� 2.0 acres and 200 feet of width is normally required;
2. A variance to allow construction of a new residence with portions of the home ahead of the
average lakeshore setback,to be located 40.9 feet from the OHWL of Lake Minnetonka where
a 75-foot setback is normally required; .
3. Variances to allow 16.2 percent hardcover within the 0-75 foot setback from the lake where
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0 percent is allowed and 0 percent from the lagoon where 0 percent is allowed,and 18.2 percent
within the 75-250 foot zone where 25 percent is normally allowed;
4. A conditional use permit to allow grading and filling within the 0-75 foot zone and within the
100-year floodplain in order to mitigate for a building pad location outside of the 100-year
floodplain for the construction of the new home.
Gaffron indicated there is a floodplain that extends from the lagoon up into the property resulting in
approximately 75 percent of the property being within the floodplain. The 75-foot setback goes through
. the middle of the proposed house.The proposed house is further back from the lake than the existing
house. A conditional use permit is also required to fill within the floodplain and some type of mitigation
will need to be completed.
Gaffron stated the application went through a year's process to get it to the point where there was a
building site acceptable to the Watershed District and to the City. The applicant is not proposing any
changes to the prior approval. The renewal request occurred after the expiration date so it is considered a
new application.
Staff is recommending approval of the variances.
Acting Chair Leskinen opened the public hearing at 7:15 p.m.
Sarah Lebedoff, 1101 Ferndale Road West, stated she and her husband are very happy with the proposed
structure but that they are hoping at some point in time to have a sense of the landscaping since the homes
in that area are close together. Lebedoff indicated she would like some reassurance that a huge grove of
trees will not be planted since that would affect their view of the lake.
Acting Chair Leskinen closed the public hearing at 7:16 p.m.
Leskinen asked if a landscaping plan has been submitted.
Curtis stated to her knowledge Staff does not have one.
Gaffron stated a landscape plan would typically be submitted at the time of application for a building
permit. Gaffron stated the City does not have any specific landscaping requirements for a residential
home and that the Planning Commission could require submittal of a landscape plan if they wanted to
address some specific issue.
Landgraver noted there is a plan for the wetland area. Landgraver commented most likely this would be a
house that would maximize their view of the lake and from a common sense point of view one would
think that the owner would not put up any landscaping to block that view.
Gaffron noted the proposed house may not be the house that is actually built since this is a conceptual
house that they designed to help sell the lot.
Landgraver asked whether the house plan would be back before the Planning Commission and if that
would be the time to discuss landscaping.
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Gaffron indicated it would be.
David Fox,Applicant,noted his father is trustee of the property and is now in a senior living facility. The
house currently is unoccupied and they would like to tear down the existing structures on the property,
which would be safer for the community and help market the property. Fox indicated they do not want to
jeopardize any of the building rights that they have been granted by tearing down the house.
Walsh asked why they would not want to construct the house further back.
Gaffron stated the issue is that the northerly half of the house and the driveway areas require mitigation
for fill and floodplain.The further the house is pushed into the floodplain,the more mitigation that will be
required. Gaffron stated it would be considered a practical difficulty.
Walsh commented it is a win/win situation whenever you can push the house further back from the lake.
Fox stated they really did not have a position on the location of the house and attempted to design a house
that would best fit the building pad.
Leskinen noted this application has been before the Planning Commission and City Council a couple of
times previously and that she would not be opposed to renewing the variances for another year. Leskinen
noted the landscaping would need to be addressed at the time a definite plan is brought forward
Leskinen moved,Walsh seconded,to recommend approval of Application#12-3555,Katherine Fox
Trust, 1095 Ferndale Road West,Variances and Conditional Use Permit. VOTE: Ayes 6,Nays 0.
4. #12-3556 SMUCKLER ARCHITECTS,INC.,ON BEHALF OF MAJID FEH1tESTI, 1910
� SHORELINE DRIVE,VARIANCE,7:24 P.M.-8:44 P.M.
Majid Fehresti and Jack Smuckler,Applicants,were present.
Gaffron stated the applicant is requesting an average lakeshore setback variance to construct a residence
on this vacant property. Because the lot width at the shoreline is less than 100 feet,the lot technically
does not meet the standards established in Section 78-72(b)(2)for administrative approval of lot area and
width variances.
The lot area and width of this property are consistent with many other developed lots within the LR-lA
District as well as within the surrounding neighborhood. A substantial residence can be constructed on
the property without the need for setback or hardcover variances. The portion of driveway within the 0-
75 foot zone is allowed by code and is necessary to access the property.
The average lakeshore setback is established by a straight line connecting the most lakeward protrusions �
of the residence buildings on the immediately adjacent lakeshore lots. In this case,the average setback is
defined by the homes at 1900 Shoreline Drive and 1920 Shoreline Drive. The home at 1920 is located
approximately 460 feet from the shore of Lake Minnetonka due primarily to the shape of that lot,which
was granted a lot width variance in 1989. The residence at 1900 Shoreline Drive is located approximately
240 feet from the lakeshore.
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The defined average lakeshore setback line angles across the applicant's lot near its midpoint,rendering
the front half of the lot unbuildable unless a variance is granted. The back half of the lot is constrained by
a wetland classified in the Preserve category,requiring a 50-foot buffer and a 20-foot buffer setback.
This combination,plus the required 30-foot side setbacks,yields a trapezoidal building envelope
approximately 90 feet wide and averaging 100 feet deep. The proposed house would encroach
approximately 58 feet past the average setback line measured perpendicular to that line.
The request for an average setback variance is in part based on preservation of a wooded area within the
back half of the property. The front of the main portion of the house will be located in an open area
abutting the woods. The L-shape of the proposed house,plus the proposed pool,will still substantially
impact the woods. Placing the proposed house to meet the average setback would have a much greater
impact on the woods. Absent the average setback issue,the best house location to preserve the wooded
area would be to place it even more lakeward of the defined average setback line than proposed.
The applicant also notes that setting the house further back will increase the costs of connecting to sewer
as well as require additional driveway. These factors are inherent to the lot regardless of the size/shape of
any house located to meet the average setback.
The Planning Commission should consider whether the views of the lake enjoyed by neighboring
property owners will be impacted by the proposed residence.The applicant notes that the lake views from
1900 Shoreline will not be impacted by the proposed structures. Whether views of the lake enjoyed by
1920 Shoreline are impacted is a more difficult question. The applicant has provided a number of photos
of the property from various perspectives. One perspective that is not shown is from the windows at 1920
during winter leaf-off conditions. The applicant also notes that existing pine trees on the applicant's
property already block 1920's views year-round. The applicant has discussed the proposed house location
with the neighboring property owners but Staff has not had direct communications from the most affected
owner at 1920 Shoreline. A letter opposing the variance has been submitted from the owner at 1900
Shoreline.
It should be noted that the home on the property at 1950 Heritage Drive sits to the rear of the house at
1900 Shoreline Drive but could technically also be considered as a"residence building on the
immediately adjacent lakeshore lot," because 1950 Heritage also extends to the shoreline just east of 1900
Shoreline. Whether the owner of 1950 Heritage has any concerns is unknown.
The Planning Commission should consider the following factors:
1. Are there existing views of the lake from the neighboring residence structure at 1920 Shoreline
Drive? If so,what impacts does the applicants'proposed house location have on those existing
views?
2. Are there existing views of the lake from the neighboring residence that would be"seasonal only"
due to the types of vegetation present? Over which property are those views, 1910 or 1920? If
that vegetation was to be removed or changed for whatever reason,how would such removal or
change impact those views? The City does not regulate the tree removal or preservation except
within the 0-75 foot setback zone,which in this case is mostly encumbered by the county road
and its right-of-way. The woods to the rear of the property enjoys no special protection other
than the 50-foot buffer abutting the wetland is required to be maintained as-is.
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3. Are there potential negative impacts to the surrounding neighborhood other than regarding lake
views if the variance is granted? Are there other negative impacts to the neighborhood if the
variance is not granted?
4. Does the Commission find it necessary or appropriate to impose conditions in order to minimize
or mitigate the impacts created by the granting of an average setback variance? For instance,
revising the house location or design to reduce the impacts? Or requiring permanent removal of
specific vegetation elements on the applicant's property to replace any lost views due to house
location?
5. Does the Planning Commission find that the property owner proposes to use the property in a �
reasonable manner which is not permitted by an official control?
6. Does the Planning Commission find that the variances, if granted,will not alter the essential
character of the neighborhood?
Staff recommends approval of the lot area and width variances. The Planning Commission must
determine whether there are existing or potential views enjoyed by the neighbors that would be negatively
impacted by granting of the variance. If there are no negative impacts,a recommendation for approval
would be appropriate. If there are negative impacts,the Planning Commission should consider whether
, they can be minimized or resolved by relocating or redesigning the proposed house or mitigated by some
other actions or conditions.
Thiesse asked if the property owner behind the 1900 building has a say in the average lakeshore setback.
Gaffron stated in his view that property owner should have a say because it is a lakeshore lot with a
unique configuration.
Landgraver asked where the 75-foot setback is.
Gaffron indicated it is almost congruent with the north line of the county road.
Walsh stated the house next door that is sitting in the back has a very small amount of lakeshore frontage
and that the only location to construct a house on this lot would be in the same location as the existing
house.
Levang asked where the building envelope is.
Gaffron illustrated the building envelope and the proposed location of the house on the overhead.
Gaffron stated if the house is pushed further back,there would still be the issue of the average lakeshore
setback as well as an additional area of woodland that would be impacted.
Lemke stated the garage wing appears to be out of proportion to the house.
Gaffron stated the proposed house has been proposed by the applicant and that it is up to the applicant to
change that. Gaffron indicated the Planning Commission can suggest alternatives if they so choose.
Levang asked how tall the garage is and whether there is a second story to the garage.
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Gaffron stated to his knowledge he has not seen a depiction of the garage.
Levang commented it appears to have some possible room at the top of the garage for an upper level.
Landgraver asked where the majority of the wooded area starts. �
Gaffron indicated it is approximately by the pool. As proposed,the bulk of the house would be located at
the edge of the woods. As the house is moved further back,more of the woods would be impacted.
Levang asked if Staff has a concern about noise from the pool.
Gaffron stated the City does not have a specific ordinance for single-family residential areas to deal with
noise from pools or noise from vehicles. There are limits on when construction can occur and decibel
limits,but generally there are no special requirements on this lot that would not apply to any other
property in the City. Gaffron stated it would be highly unusual for the City to impose a special restriction
on noise level.
Levang asked where vehicles would park during construction.
Gaffron stated Staff recently reviewed an application where the road was 20 feet wide and had no parking
on either side without impacting traffic. In this situation there is approximately 300 or 400 feet of
potential driveway that could be parked on and that Staff does not feel it will be an issue.
Jack Smuckler stated the garage would be one story with possible attic space above it. The lot has a
number of pine trees on it so in the winter and summer it is screened. Smuckler indicated their main
objective is to save as much of the wooded area as possible.
Levang asked why he believes there is no view from 1920.
Smuckler stated there would be garage and one window in the garage. Smuckler stated they cannot see
the lake through the pine trees. Smuckler indicated he has talked to the property owner of 1920 and that
they pushed the house back far enough so she can still have a view across the property of the lake.
Smuckler indicated that property owner can see past the proposed house and garage to the right-hand
corner of the property and that they have pushed it back approximately 45 feet from the 250 line.
Lemke asked if the house was pushed back another 30 feet,how many trees would be impacted.
Smuckler indicated you would probably lose the majority of the trees.
Thiesse asked if the trees would be lost because of the new grading contour on the west side of the pool.
Smuckler indicated he is not sure how that would impact the trees.
Acting Chair Leskinen opened the public hearing at 7:47 p.m.
Greg Coward, 1950 Heritage Drive, stated his properiy is the property that was referenced earlier and that
they share a couple 100 feet of common boundary. Coward indicated if you look at the page in the packet
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that shows the main level,the lower level,and the upper level of the house,there seems to be a doorway
and some kind of wall structure above the garage that then is not depicted in full on the drawing.
Smuckler indicated it is attic space.
Coward stated at the time the contiguous property owners received notice of the hearing,they took the
time to review the plans. Over the last couple of days,we have found that the contiguous property
owners have a common view about this particular project and that he has been asked to read a summary
statement of the neighbors'view of the project. Coward apologized for not submitting it prior to tonight.
"Dear Members of the Planning Commission: We are writing to inform the Planning Commission that
the four property owners who reside on land contiguous to the subject property, as well as property
owners in the adjacent neighborhood area, urge the Commission to deny the request for variances. We
submit the following points for your consideration:
One,we individual and collectively oppose the granting of any setback variance for 1910. This includes
both the lakeshore sight line setback and the wetland setback.
Two,further,we consider both of these setback zoning rules to not be technical but two of the more
important rules on the books. They influence more than others perhaps the protection of neighbors'
enjoyment of their respective properties,property values, and the preservation of ecologically important
land.
Three,Mr.Fehresti,the applicant, should have been fully aware of these existing rules when he purchased
the property. It is not now the City's or the neighbor's role as a matter of courtesy or obligation to void
the conflict between the rules and the development plan by granting a setback variance. This property
had been on the market for many years. Mr.Fehresti bought the land in foreclosure. Instead of
purchasing the property with a contingency relating to the City granting certain variances,he simply
closed on the sale. Therefore, at the time of purchase,he assumed the risk that these rules might affect his
plans. The request now for a variance is a request of the city to waive their rules because those rules do
not conform with his plans. Mr.Dougherty,who lives at 1900 Shoreline Drive, stated he spoke to Mr.
Fehresti before the purchase and specifically pointed out the existence of the lakeshore setback rule.
In regards to the Heritage Drive marsh and wetland area at the rear of this property, it is fed by a natural
spring,which comes off of the 1920 property,and the stream from which crosses the applicant's property
in a well-defined stream bed and feeds the marsh bed that is principally owned by the Daytons and the
Cowards." Regarding the 1860 Shoreline Drive situation,the water from the Heritage Drive marsh goes
under Heritage Drive,goes to the Fox Hill pond and wetland area,and from there goes to the Tanninger
Lake and wetland area and then finally Lake Minnetonka.
Gaffron indicated it may actually go west of Brown Road but that it eventually goes to Tanninger.
Coward stated a third concern is the McMansion that is being proposed. "The lot is significantly
substandard as to both buildable area and width. In addition to large square footage,the plan includes a
large garage which we believe is intended for storage of a car collection and/or boats,so it is an oversized
garage. The development plan is not in keeping with the character or the use of the existing
neighborhood."
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� In referring to the overhead,there is long driveway that goes along the property line of the Doughertys,
which is 150 feet or so. Coward stated it is his assumption that it is five feet off the property line which
leaves no way to mitigate sight lines since there is no room for a buffer. If the Doughtertys or the
Cowards would like to have a buffer, it would be up to them to plant on their property in an attempt to
mitigate whatever they do not like.
Coward indicated the letter has been signed by all four contiguous property owners as well as Steve and
Cindy Larson and Steve and Jenni Charrier. Coward noted he signed for the Charriers since Steve is out
of town and his wife had other commitments.The letter has also been signed by Steve and Pamela Burns.
Coward indicated he did take some pictures of the stream and the vegetation.
Levang asked if the picture was taken on the Klinger property.
Coward indicated he believes he was.
Levang asked if it is surrounded by rock on several sides and a well-defined stream bed.
Coward illustrated the location where the water comes out of the ground and pointed out that there are
boulders in the stream to prevent it from washing out. Coward indicated he is not sure of his exact
location when he took the picture.
Gaffron asked if he could trace the route of the stream on the survey.
Coward pointed out the location of the Klinger house and indicated the stream is located towards the back
of the Klinger house. Coward stated he is not sure if the stream starts on this side of the wetland line that
is shown on the survey,but that it goes in this general direction as shown on the survey.
Gaffron noted that area is protected.
Coward indicated they were not sure what was protected or not and that they were not sure what authority
the Planning Commission had. Coward stated disturbing this area would probably not be recommended.
Coward commented this lot is small and that the applicant is pushing the building envelope.
. Mike Dougherty, 1900 Shoreline Drive, stated he was interested in purchasing this property and
recreating it as one lot as it originally was. Dougherty indicated he went to the city and did his homework
and found out that with all these setbacks, it would present some challenges and force one to build back in
the woods. Dougherty stated shortly after that he learned that the property was sold and that there seems
to be a lot of desire to obtain some variances given the size of the proposed building.
Dougherty stated the setbacks are more than just protecting the lakeview and that it goes to privacy and
having someone's house at the rear of their property. Dougherty asked if removing the trees is a money
issue. Dougherty also asked if there are curb cuts depicted on the survey and what the requirements are
for the location of a driveway.
Gaffron stated the driveway has to be located five feet off of the property line and that Hennepin County
would need to approve a location for the new driveway. Gaffron indicated there is approximately 100
feet in that stretch for a driveway.
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Dougherty commented in his view the house would be better located in the woods.
Smuckler indicated he has been building homes for 30 years and has not seen a property with so many
challenges. Smuckler noted he did meet with Krista Klinger and that their main intent for the variance
was to protect the view from 1920. Smuckler displayed a picture of the view from 1920 and noted that
there is a very small view through the pine trees.
Lemke asked where the house would start.
Smuckler indicated approximately where the basketball court is.
Walsh noted the trees do not appear to be pine trees in the back.
Smuckler stated it is heavy woods in that area.
Krista Klinger, 1920 Shoreline Drive, stated she is concerned and disappointed with what she is hearing
as it relates to the setback and the impact on her lakeviews. Klinger stated she would be looking directly
at the back of the house. Klinger indicated her office,a bedroom, entry room and living room windows
are located on that side of the house. Klinger indicated she did submit some additional pictures to Ms.
Levang to show the foliage in all seasons. �
Klinger indicated she also has a concern related to her property value. Klinger stated there is an allure of ,
living on Shoreline Drive and that her property has a very unique setting. Klinger indicated the pictures
capture the view from every property up to County Road 19 and that no other property.has been blocked
with a view like this. Klinger stated she understands the homes traditionally along Shoreline Drive face
the lake but that she would be forced to look at the back of a house,which would have a negative impact
on the value of her properly.
. Klinger stated she also has some additional concerns about the driveway. One concern is not knowing the
exact location of the driveway. The other concern is that every time it rains or in the wintertime,there is
pooling water in that area. Klinger stated she is not sure what the plans are to mitigate that. Some of the
pictures taken this afternoon depict some of the rainfall from last night and the resulting pooling of the
water. Klinger noted it does get pretty soggy in that area.
Klinger expressed concerns about the noise from the pool and the basketball court, especially since it is a
very quiet neighborhood. Klinger indicated her home would be looking almost directly at the pool.
. Klinger stated she also is not sure if the wetland and spring have any impact on this application and that it
seems like a large footprint for a skinny lot.
Landgraver asked if she constructed her home. .
Klinger indicated they purchased the home in 2008 and that they would not have purchased the home had
they known the lot was dividable. Klinger stated when they looked at the property in August of 2008,the
lot was still under the same sales tax and same ID number and so they had no idea it was in foreclosure.
After the property was purchased,they still did.not know it was buildable.
Dr.Majid Fehresti,applicant, indicated he did speak with the neighbors regarding his proposal and that
the property was not in foreclosure at the time he purchased it. When the offer was made to purchase the
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house,he was given one week's time to do research on the property. Fehresti stated the first time he met
Mike Dougherty he said,do you know this land is not buildable. Fehresti stated he did speak with
someone at the City, asked if the land is buildable,and was told it was.
Fehresti stated no parts of his plan affect the neighboring properties. Fehresti asked whether he has the
right to construct a house further back without an average lakeshore setback variance.
Gaffron indicated that property,except for the fact that it is 95 feet in width at the shoreline,would be
buildable under the current statutes. There is a building envelope on the property that is bounded by the �
30-foot side setbacks,the average lakeshore setback line, and the 20-foot setback line,which results in a
10,000 square foot building area. Gaffron stated he does not think there is any way the City could deny
buildability of the lot as long as the setbacks are met. Gaffron indicated he is not an attorney,but that he
believes the City would not have the ability to deny buildability to that property. Gaffron stated 20 years
ago,when there was no sewer in the neighborhood,there were huge issues and the City would have
required that these two properties be combined or held in common ownership. Gaffron indicated in his
view the applicant does have the right to construct on the property and the City can grant a lot area and lot
width variance.
Fehresti noted there are a number of big houses on Lake Minnetonka and that their proposed house is less
than the average home on the lake. Fehresti stated 6,000 square feet is not a big project and that if he
pushes the house further back, it will affect the view of that house more. Fehresti stated he is willing to
cut down some of the trees to provide a better view of the lake for his neighbors.
Acting Chair Leskinen closed the public hearing at 8:18 p.m.
Levang asked Planner Gaffron to clarify the buildability of the property.
Gaffron stated there is clearly a buildable envelope on the property and that it is defined by the yellow
boundary depicted on the overhead. Gaffron noted a house in that area would comply with all of the
setbacks. There is approximately 9,000 square feet available within that trapezoid area where you could
construct a house. Section 78-72 (b)(2)says, "In R districts of greater than one acre and served by public
sanitary swer. A lot of record in any R district in the city in excess of one acre which does not meet the
requirements of this chapter as to area or width only may be utilized for single-family detached dwelling
purposes by administrative approval if the planning director finds that the following conditions are met:
(a) It is at least one acre in size, and the average width of the lot is at least 100 feet; (b) it is served by
public sanitary sewer; and(c) it otherwise meets the requirements of this chapter or other applicable Code
provisions." Gaffron indicated because it does not meet some of the other requirements of this chapter,
such as the 200-foot standard, it cannot be approved administratively.
Gaffron stated in his opinion the City would not win in court if the applicant challenged the buildability
of the lot. Gaffron stated the lot is in excess of one acre,has a connection to sewer available, and is able
to meet the City's hardcover regulations. As a result,it would be considered a buildable lot by state
statute. .
Levang stated the issue in this case is the average setback variance.
Landgraver stated the question is if the lake view is impacted for the property at 1920 Shoreline and
whether there is any way to mitigate that.
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Monday,June 18,2012 '
6:30 o'clock p.m.
Leskinen noted if you bring the house back further from the average lakeshore setback,there would be a
greater impact to the lakeviews and possibly an encroachment into the wetlands.
Gaffron indicated given the design of the house, it would encroach into the wetland and the setback
buffer.
Landgraver noted if the Planning Commission tabled the application and the applicant redesigned his
plans to fit within the building envelope,they would not need to come back before the Planning
Commission.
Gaffron stated if the house is redesigned to fit within the building envelope,an argument could be made
that they meet the statute and lot area and width variances would not be needed.
Leskinen asked what would be preferable in terms of the average lakeshore setback. Leskinen noted the
further you push the house back,the greater the impact it would have on the woods and the wetlands.
Thiesse asked if there is a number that is reasonable to the neighbor to the west that they could push the
house back.
Klinger stated she would like the setbacks met and that her concern is with the overall footprint. Klinger
asked if there is any possibility that the house could be scaled down to fit within that building envelope.
• Klinger asked if a longer home could be built to lessen the impact on the views.
Walsh noted if the applicants keep the house within the building envelope,they would not need to come
back to the Planning Commission for approval. Walsh stated in his view it is the sight line that is the �
most important for the Klinger property.
Klinger indicated her major concern is with her sight lines and that in her view her other concerns with
the water and noise could be addressed.
Levang asked how Mr. Coward would feel if the house was pushed further back.
Coward indicated this is the second time they have had an issue with a house being proposed on Shoreline
Drive. The first situation was at 1860 Shoreline Drive where they originally proposed a house that was
19,000 square feet. The size of that house has now been reduced down to 12,000 square feet.
Coward stated he assumed from the beginning it was a buildable lot and that it comes down to what can
be built. Coward stated no matter how you look at it, it is a big house that easily out-scales the majority
of the homes in the neighborhood. As the house is proposed,all along the property line is driveway. The
only way to mitigate that view is to plant trees on the neighboring properties. In addition,the vegetation
will be removed during the construction process. Coward stated they will have to look at a long driveway
and building.
Walsh asked whether Mr. Coward can live with the house if the structure is pushed further back.
Coward stated ideally the Doughertys would have purchased the land, but from his point of view,the
house is better off being forward. Coward stated in his view the six-car garage could be made smaller,
which would help.
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Landgraver stated there are concerns about the view for the house to the west and that there are a number
of trees closer to Shoreline Drive. Landgraver asked what the intent is with the trees. Landgraver stated
conceivably if some of those trees were removed, it might improve the view for 1920.
Leskinen noted the owner of the property has already indicated he would be willing to remove some of
the trees to improve the neighbors' views.
Klinger stated it is her understanding that some of the trees cannot be removed due to regulations.
Gaffron noted only the trees within 75 feet of the shoreline are protected. Gaffron pointed out the 75-foot
line on the overhead.
. Doughterty pointed there are also trees along the shoreline and that the issue is more than the lake views.
Fehresti stated the trees on the lake are low and not as tall as the other trees.
Landgraver asked what the intention is with the trees more towards the street.
Smuckler stated Dr.Fehresti would like to remove some of those trees,which would also help open the
views far the 1920 property.
Coward stated he finds it objectionable that the trade-off is, if you have a problem with your view,to cut
down some of the trees. From the lake,the view will be of a cleared shoreline.
Mark Jenson, 1520 Minnie Avenue, indicated he is not able to stay for the rest of the meeting and that he
is here on Item No. 6. Jenson stated he is in favor of the application.
Thiesse noted the house at 1920 required a variance to be constructed and that is the house that is
dictating where this house gets built. Thiesse pointed out that the average lakeshore setback line is being
determined from the adjacent corner of the house,which is the one closest to the lake, so the line is
. somewhat skewed.
Thiesse stated he also is not sure who defines the view and what constitutes a view. Thiesse noted the
majority of the view consists of trees and that he is not sure if it is the role of the Planning Commission to
define the view. The neighbors are against the project and that is one indication that the variances might
be excessive. Thiesse stated if the applicant does stay within the parameters of the building envelope,he
can construct 9,000 square feet of house on two levels,which in his view will be detrimental to the people
to the west. Thiesse noted the Planning Commission really has no control over the swimming pool and
the noise that will be created.
Walsh commented the role of the Planning Commission is to enforce the rules. The applicant purchased
the property knowing there were homes next door and that the applicant has a nice size building envelope.
Walsh stated in his view any water issues in the back can be mitigated. The neighbors are strongly
opposed to the variances and that it is a house that will cause some sight issues.
Levang stated the Planning Commission should protect the people first and that the trees should come
second. The other large house in the neighborhood is located on the corner. The other homes in the
neighborhood are reasonably sized.
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Landgraver stated the other practical difficulty is the adjacent house being located so far back.
Levang noted that is an existing house and the Planning Commission cannot do anything about it.
Thiesse commented that house is an anomaly and that it could not be located anywhere else on the
property.
Klinger asked how many times the average setback line has come up on Shoreline Drive and how many
variances have been approved.
Gaffron stated the City has approximately 1,000 properties on the lake in Orono. Gaffron stated he is not
sure if there has been an average lakeshore setback variance granted of this magnitude and that he would
have to research it.
Landgraver asked if the application should be tabled to allow the applicant the opportunity to design a
house that would fit within the building envelope.
Leskinen asked if the applicant would be interested in that option. Leskinen stated the alternative would
be to have the Planning Commission vote on the application and that it appears likely the application
would be denied at this point. If the application is denied,the applicant can still go forward to the City
Council.
Walsh stated if the application is denied by the City Council, they would need to
Fehresti requested his application be tabled.
Levang moved,Leskinen seconded,to table Application #12-3556, Smuckler Architects,Inc.,on
behalf of Majid Fehresti, 1910 Shoreline Drive. VOTE: Ayes 6,Nays 0.
5. #12-3557 RUSSELL SCHUMER,955 TONKAWA ROAD,AFTER-THE-FACT
VARIANCES, 8:45 P.M.- 9:13 P.M.
Russell Schumer, Applicant, and Rick Carls, Attorney-at-Law,were present.
Gaffron stated the applicant is requesting an after-the-fact hardcover variance for construction of a water
feature and landscaping constituting excess hardcover within the 75-250 foot setback zone. The applicant
hired a landscape contractor to do landscaping work in the lakeshore yard. The contractor applied for a
permit in May of 2007 for installation of lakeshore stairways as well as land alterations, including a pond
and landscape beds as depicted in Exhibit K-1. The permit for the stairways was approved. The land
alterations were specifically not approved.
In September of 2007, it was found that the landscape work had been installed without a permit being
approved. The applicant has concurrently applied for and obtained a variance for a pergola, which has
not been constructed. Staff had been working with the applicant to have the hardcover be made compliant
as part of the pergola construction. By January of 2009, Staff informed the applicant that the hardcover
must be removed. Correspondence between the City and property owner regarding the violation
continued throughout 2010 and 2011, culminating in issuance of a permit in December of 2011 for the
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land alterations needed to remove the violations, which were to be removed by June 1, 2012. The
applicant then chose to apply for a variance in lieu of commencing the removals.
The applicant is requesting that the hardcover in violation be allowed to remain, citing costs of removal,
lack of ability to retain a contractor to do the removal, etc. The applicant has also submitted a memo from
a consulting engineer suggesting that the permeable fabric underlayment with clean rock above should
enhance the infiltration process.
The City Engineer has not had a chance to weigh in on the applicant's engineering submittal which was
received Wednesday. However,the Hardcover Task Force discussions regarding the use of permeable
fabrics has resulted in a draft ordinance that would revise the City's long-held position that such fabrics
will be considered as hardcover. The pertinent section of the proposed ordinance reads as follows:
"Hardcover shall not include the following: landscaping with permeable lining,the first 100 square feet
of pervious paver patios or walkways, the first 100 square feet of decks with a pervious surface below,
handicapped ramps with a pervious surface below, and retaining walls."
The proposed ordinance also includes this definition of permeable fabric: "Permeable lining(landscaping
fabric) means a 100 percent porous material used for weed prevention that allows storm water to permeate
into the ground."
If the proposed ordinance is ultimately adopted,the applicant's hardcover numbers may be reduced
significantly.
The Planning Commission should consider the following issues:
1. Does the Planning Commission find any factors that support approval of the requested hardcover
variance? This is an unusually large lakeshore property and construction of the residence and
necessary supportive hardcover(driveways, sidewalks, etc) did not require a hardcover variance.
Would the Planning Commission have approved the requested hardcover variance.
Staff believes the applicant's stated practical difficulties do not support approval of a variance for excess
hardcover under the current ordinances, especially given the long history of attempts by the City to gain
compliance.
Staff would further note that the removal plan for which the City issued a permit in December of 2011
would, if implemented, reduce the 75-250 foot zone from 39.35 percent down to 26.16 percent.
Leskinen asked in the event this variance request is denied and the hardcover is ordered to be removed,
whether, once the new hardcover ordinance is adopted, the owner would be able to come back in and
reinstall the hardcover again.
Walsh asked if they are willing to table it until the new hardcover ordinance is adopted.
Gaffron stated if action is taken tonight by the Planning Commission, it would go before the City Council
in July. The new hardcover ordinance will also be before the City Council in July. If the application is
tabled a month, it could be delayed long enough to allow the new ordinance to take effect.
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Levang stated the issue is that the property owner had been notified of the problem and never rectified it.
If the application is tabled,then there is no accountability for what was done.
Gaffron stated if the Planning Commission is looking for accountability, it is likely the City Attorney
would tell us that given the potential for the ordinance to be changed, it would be difficult to pursue this.
Curtis noted the application before the Planning Commission is under the existing codes,and if the
Planning Commission wishes to wait and act under the new ordinance,that would be the Planning
Commission's choice.
Levang noted there is a sheet that specifies the ground cover and asked whether that has been verified.
Gaffron indicated the City does not know for sure whether that fabric was used and how much of it was
used.
Rick Carlson,Attorney-at-Law, stated he is here tonight representing Mr. Schumer and that he has
known Mr. Schumer since 1975. Carlson stated Mr. Schumer is stuck between a rock and a hard place.
What happened in this case is laid out in the hardship letter. The last page of Mr. Schumer's hardship
letters contains an explanation of what happened here. Basically Mr. Schumer was taken advantage of by
who he thought was a reputable contractor. He was told by the contractor that everything he was doing
was in compliance and Mr. Schumer did not find out about it until after the fact.
Carlson stated when this situation was recently brought to his attention,he tried to unravel what
happened. Mr. Schumer did not know about the work being in violation until after the work was done.
Once he became aware of the noncompliant work,he then attempted to track down the contractor but both
the contractor and the landscaper are no longer in business.
Carlson indicated before they could take any action against the contractor,their first step was to
determine whether the work was performed without a permit. Carlson indicated that is his assumption
since the staff at Orono has told us there is no permit. Following notification from the City,after a period
of time Mr. Schumer started dealing with City personnel and got an engineer involved. Mr. Schumer
retained a second landscaper to come up with a plan to try and bring it into conformance. As they got into
the project,they heard rumors about the hardcover changes that are being contemplated by the City. Mr.
. Schumer once again is between a rock and a hard place since it is difficult to spend thousands of dollars
rectifying something that may in a few months be made legal.
Carlson indicated it was not like Mr. Schumer intentionally did any of this. While the impression may be
that of a deliberate delay on the part of the applicant,that is not what actually happened. Mr. Schumer
wanted to be compliant and have a nice back yard at the time the work was being done and was under the
impression that the work was allowed. When he found out it wasn't,he did not act as quickly as the City
wanted him to but he was not trying to skirt the system. Carlson commented sometimes people get taken
advantage of in life and that there is no reason to suspect that this was an intentional act on his part.
Carlson stated perhaps the best solution to this is to table this until after the City Council has had an
opportunity to either approve or deny the new hardcover ordinance.
Russell Schumer,Applicant, stated he was unsure what to do once he found out about the lack of a
permit,which is part of the reason for the delay. Schumer indicated he attempted to contact the
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MINUTES OF THE
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Monday,June 18,2012
6:30 o'clock p.m.
� landscaper but found out the landscaper went out of business. The second landscaper that was hired was
working with the City on another application so he was asked to help out in this situation and work with
the City. Schumer indicated the second landscaper has designed a plan that he really does not like, and
that if there is a way to delay this and become compliant in the future,that would be great. Schumer
stated he would like an end to this situation and not have it dragged out much further.
Acting Chair Leskinen opened the public hearing at 9:05 p.m.
There were no public comments regarding this application.
Acting Chair Leskinen closed the public hearing at 9:05 p.m.
Landgraver commented it seems logical to table this application for a couple of months.
Thiesse stated the City's main goal is protection of the lake and that if there is a way this work can
become compliant,the Planning Commission should take that approach. Thiesse commented there are
extenuating circumstances sometimes but that five years is a long time for very little action to be taken by
the property owner.
Schumer stated he did not know the work was not compliant until he went to take out the permit for the
. pergola.
Landgraver asked what the mechanism would be if the City Council does not act on the hardcover
ordinance in the next month.
Gaffron noted the City has 120 days from June 6`�',which gives them until October 6`�'. If, by the end of
that time,the Council has not taken action to adopt the new ordinance or if the ordinance they adopt does
not accomplish what is expected,this application will need to come back before the Planning
Commission. .
Thiesse stated in his view action on this application should be taken before October.
Curtis noted it is a violation application and that it is a unique situation with a new hardcover ordinance
pending. Curtis indicated this is a unique situation given the fact that there is a new hardcover ordinance
being discussed.
Levang asked if the Planning Commission has to give them 120 days.
Gaffron stated in his view the Planning Commission does not have to give the applicant the full 120 days
and that typically what happens with extensions is that Staff needs to do additional work or additional
documentation needs to be. The Planning Commission could take action tonight and let the City Council
decide how they want to deal with it.
Walsh stated if there are issues within the 0-75 foot zone,those should be dealt with right away.
Carlson stated he appreciates the comments of the Planning Commission. When we looked at the
environmental issue,Mr. Schumer did retain an engineer to review the situation and prepare a report.
Carlson stated he would like more time to provide some detailed information if that becomes necessary.
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MINUTES OF THE
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Monday,June 18,2012
6:30 o'clock p.m.
Mr. Schumer was told the City was in the process of changing the law and that tabling the application
makes the most sense.
Levang indicated she is not in favor of tabling the application and that the Planning Commission vote on .
the application tonight. Levang stated the City Council could then either approve or deny the application.
Thiesse stated if they table the application, it will come back before the Planning Commission.
Walsh noted the new hardcover ordinance will be before the City Council on July 9`�'.
Thiesse stated if the City adopts the new ordinance,Mr. Schumer will almost be in compliance. Thiesse
indicated he would prefer just to table it and review it under the new ordinance.
Landgraver moved,Thiesse seconded,to table Application#12-3557,Russell Schumer,955 ,
Tonkawa Road. VOTE: Aye 5,Nays 1,Levang Opposed.
6. #12-3558 MARK DUENOW, 1525 MINNIE AVENUE,AFTER-THE-FACT VARIANCE,
9:13 P.M.-9:23 P.M.
Mark Duenow,Applicant,was present.
Gaffron stated the applicant is requesting an after-the-fact side setback variance for construction of an .
enclosed porch located seven feet from the side lot line where a 10-foot side setback is required. The
applicant recently constructed an enclosed porch above a pre-existing deck that was located seven feet
from the side lot line, in line with the house also at that setback. The required side setback for a structure
such as this in the LR-1C District is 10 feet. The pre-existing deck was at the main floor level and would
have been allowed as close as two feet from the side lot line per Code Section 78-1405(3). Enclosure of
the conforming deck to make it into a porch requires that the porch meet the 10-foot setback.
The pre-existing deck was built in 2001 by the prior owner. At that time there was some question about
whether it met the 10-foot setback requirement and it was later determined to be low enough to be
considered as a nonencroachment. The current owner recently built walls and a rood to enclose a portion
' of the deck, including that portion less than 10 feet from the side lot line. That enclosure must meet the
10-foot setback. �
The applicant was offered the options of removing the enclosed porch entirely or submitting plans for a
permit to modify the structure to meet code. The applicant has chosen neither option but has requested a�
variance to keep the structure.
The applicant notes that the porch continues in line with the side wall of the existing hose and will not
encroach any nearer the lot line than the existing house. �Had he applied for a building permit prior to
construction,he would have been advised of this nonconformity and could have reviewed his plans
accordingly or applied for a variance prior to construction.
Addition of a screen porch to this very small house is not an unreasonable request. The fact that the
existing house is closer to the side lot line than the Code allows is a practical difficulty. The e�cisting jog
along the back wall of the house would act to limit the width of a conforming screen porch extension to
approximately seven�eet. Further,the applicant is correct in noting that the existing roofline of the house
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MINUTES OF THE
� ORONO PLANNING COMMISSION MEETING
Monday,June 18,2012
� 6:30 o'clock p.m.
would make it difficult or impossible to mainta.in reasonable headroom in an enclosed porch if it had to be
moved further north.
The addition does not appear to limit the light,air and open space enjoyed by the adjacent property. The
house to the immediate south is approximately 50 feet from the applicant's side lot line. The applicant's �
request results in minimal negative impact to adjacent properties. Staff finds the location of the existing
home and the size of the property creates a unique circumstance not created by the applican�ts and that
granting the applicant's request is in harmony with the purpose and intent of the ordinance and will not
alter the essential character of the neighborhood. .
7
The proposal will result in structural coverage totaling 919 square feet,which is significantly less than the
1,500 square foot of structural coverage that would be allowed on this small lot. The proposal constitutes
an increase in hardcover resulting in the property being just under the 30 percent limit for the 250-500
foot zone in which the property is located.
Gaffron stated a recommendation for approval should be subject to the applicant obtaining an after-the-
fact building permit for the porch as well as the deck extension, subject to making any changes necessary
to bring the existing construction inYo code compliance as may be directed by the building official.
Levang asked if the deck is okay.
Gaffron indicated it is legal from a hardcover standpoint and it does meet the setback requirements.
Walsh asked if it meets building codes.
Gaffron stated that would need to be verified by the building inspector.
Duenow stated last year he had a screen tent in the middle of the yard and that did not work very well.
Walsh asked why it was constructed without a permit.
Duenow stated he was initially going to put up an awning and then decided to go with a roof.
Acting Chair Leskinen opened the public hearing at 9:21 p.m.
There were no public comments regarding this application.
Acting Chair Leskinen closed the public hearing at 9:21 p.m.
Landgraver noted the house next door is vacant. .
Duenow stated the house to the south is vacant and has been for sale for a number of years. Duenow
noted his other neighbor is constructing a new house.
Levang stated the impact on the neighbor was her main concern.
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MINUTES OF THE
ORONO PLANNING COMMISSION MEETING
Monday,June 18,2012
6:30 o'clock p.m.
Walsh commented that no one is happy when someone goes and builds a structure without the proper
permits. Walsh noted the applicant would have been able to construct what he did had he obtained a
permit.
Levang moved,Walsh seconded,to recommend approval of Application#12-3558,Mark Duenow,
1525 Minnie Avenue,granting of an after-the-fact side setback variance,subject to approval by the
building inspector. VOTE: Ayes 6,Nays 0.
*7. #12-3559 KENT&JUDITH HODDER,2640 NORTH SHORE DRIVE,VARIANCE
Levang moved,Thiesse seconded,to recommend approval of Application#12-3559,Kent and
Judith Hodder,2640 North Shore Drive,granting of a variance to allow the construction of an
oversized accessory structure to be located nearer the front or street lot line than the p,rincipal
residence structure. VOTE: Ayes 6,Nays 0. ,
8. #12-3560 STONEWOOD,LLC,ON BEHALF OF MATT AND NEENA KISSNER,3205
GRAHAM HILL ROAD,AFTER-THE-FACT CONDITIONAL USE PERMIT,9:23 P.M.-9:40
P.M.
Sven Gustafson,Developer,was present.
Gaffron stated the applicant is requesting an after-the-fact conditional use permit to authorize land
alteration activities to elevate and alter the existing natural grade for construction of a new residence on
this vacant lot. In early 2011,construction on a house was begun on the adjacent Lot 2. The excess fill
from that site was pushed on to vacant Lot 1. The developer was anticipating that fill would eventually be
needed for Lot 1 to make it more buildable for a walkout situation. The fill was done without City
approvals and was essentially completed by the time the City discovered it. The developer indicated he
would make the appropriate applications for approval of this new fill,which did not occur before the lot
was sold for development in December of 2011.
Lot 1 is now being proposed for a new home. When the plans came in a month ago, Staff determined that
the house as proposed as three stories by definition where only 2-1/2 stories are allowed,based on both
the original pre-existing topography and the post-fill topography. The applicants have subsequently
lowered the house deeper into the ground and are asking for an after-the-fact CUP for the 2011 fill so that
they can establish the 2011 fill as existing grade for defining building height. Added as much as six feet
of fill in some places.
The question is how the fill has affected the neighborhood. With regard to this application,as it relates to
Section 78-966, conditional use permit review,Items 2, 6, 7, 8, 9 and 13 are generally applicable. The
applicants are generally in compliance with Items 2, 6, 7,and 8. A key element of the code is the �
requirement that"structures shall not e artificially raised above the pre-existing surrounding topography.
. This code language was established many years ago to avoid situations where grading is done that would
result in homes with contrived basements that are at or above the pre-existing grade. The city has,
however, commonly allowed the esta.blishment of new existing grades at the time of subdivision where
topographic conditions dictate that building pads be approved and created at the time of subdivision
infrastructure development.
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MINUTES OF THE
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Monday,June 18,2012
� 6:30 o'clock p.m.
As it relates to Item 9,this standard requires that the fill and its resulting use for a new residence must not
substantially impair the use and enjoyment of the property in the area or have a materially adverse impact
on the property values in the area when compared to the impairment or impact of generally permitted
uses.The proposed use of the property for construction of a residence will not be changed as a result of
the proposed fill, so there should be no change in the use and enjoyment of adjacent properties.
Item 13 req�tires that the fill be designed to take into account the natural, scenic,and historic features of
the area and to minimize environmental impact. The fill and proposed grading on this lot will have
minimal, if any, environmental impacts. The grading proposed is deemed by the applicant to be the
minimum necessary to provide an ideal building pad for the proposed home.
The City's consulting engineer has indicated that a storm water pollution prevention plan will be required,
that any retaining walls higher than four feet will require engineered plans, and that a MCWD erosion
control permit will be required prior to a building permit being issued.
Sven Gustafson, Stonewood, stated he is representing the current homeowner of the property. The current
homeowner of the property did not have anything to do with moving the fill and that his firm has been
� hired by them to construct a new home on the site. Gustafson indicated they did not become aware of the
issue until they applied for a building permit and that they are trying to figure out a solution to the
problem.
Acting Chair Leskinen opened the public hearing at 9:33 p.m.
George Stickney,Developer, stated he was the owner of the property and the contractor. At the time the
house next door was being built, it was being built by a different builder. The builder said he had some
extra dirt and that the site should have been graded at the time. Stickney stated he told the developer to
talk to Staff and that he paid for the two elevation changes from Gronberg. Stickney indicated he found
out that he was in the wrong two weeks ago and that it is not the new owner's fault. Stickney stated the
lot should have been graded like that since day one and that he apologizes to the City for the oversight.
Acting Chair Leskinen closed the public hearing at 9:35 p.m.
Thiesse asked what the fill consists of.
Stickney indicated it is largely clay.
Thiesse noted the garage will still have to have footings that go down to natural, good clay.
Gustafson indicated he is aware of that.
,
Leskinen indicated she did visit the site and that the fill does appear to fit in.
� Landgraver moved,Thiesse seconded,to recommend approval of Application#12-3560,
Stonewood,LLC,on behalf of Matt and Neena Kissner,3205 Graham Hill Road,granting of an
after-the-fact conditional use permit. VOTE: Ayes 6,Nays 0.
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� MINUTES OF THE
, ORONO PLANNING COMIVIISSION MEETING
Monday,June 18,2012
6:30 o'clock p.m.
PLANNING COMMISSION COD�IlV�NTS
9. REPORT OF PLANNING COMMISSION REPRESENTATIVES ATTENDING CITY
COUNCIL MEETINGS ON MAY 29,2012,AND JiJNE 11,2012
� Leskinen noted there was one planning application on the City Council agenda for May 29`�',the Jim
White application,which was approved by the Council•on the Consent Agenda.
Gaffron stated at the June l lth Council meeting,Judd Dayton's application was approved on Consent
Agenda. The zoning text amendment regarding dock rental was discussed. Gaffron distributed a
document containing the proposed final language. Gaffron noted the ordinance will be before the City
Council at their next meeting.
Gaffron stated the Stavig application was also granted as the applicant had originally requested after a
fairly length discussion by the City Council. The 1505 Long Lake Boulevard application was also
approved.
10. OTHER ISSUES FOR DISCUSSION
Curtis asked if the Planning Commission would like to schedule a work session in July.
It was the consensus of the Planning Commission to schedule a work session in July.
ADJOURNMENT �
� Leskinen moved,Walsh seconded,to adjourn the Orono Planning Commission meeting at 9:50 p.m.
• VOTE: Ayes 6,Nays 0.
( '
.
• Denise Leskinen,Acting Chair
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