HomeMy WebLinkAboutre lakeshore improvement � �.
December 28, 1998
Mr. Robert Floyd
960 Ferndale Road West
Wayzata, Minnesota 55391
Dear Mr. Floyd:
We are in receipt of your December 21 letter, and wish to provide you with the City's perspective
on your lakeshore improvement activities. On June 24, 1998 we met on West Ferndale to discuss
fill that had been deposited on the lakeshore in the area where you have docks. I explained that any
filling within the City of Orono requires a grading or land alteration permit. I further explained that
since this fill was near the lake and probably in a flood plain area that, further permits from the DNR
or the Minnehaha Creek Watershed District might be required.
As a result of this discussion the City did issue an after-the-fact permit which only covered the small
quantity of fill you had already placed on the shore near your dock. I stressed that any further work
would require additional permits, and would require that better erosion control methods (such as
landscaping or riprap) be incorporated into the design before those permits would be approved.
On Monday,November 30, 1998 I found large trucks at this site dumping fill into Lake Minnetonka
well below the Ordinary High Water Level and several feet out into the lake. A permit had neither
been applied for nor issued for this activity. While I understand some of what you are trying to
accomplish, proceeding without the proper permits was extremely careless and clearly illegal. In
subsequent discussions on site with Jim Hafner of the MCWD and yourself, we agreed on the
following:
1. All filling into the lake and the adjoining flood plain would stop immediately.
2. You would immediately begin discussions with the MCWD and the DNR and submit
an application to them by the first of the year.
3. After receiving permission from those agencies you must then come to the Orono
City Council for final approval in the form of a conditional use permit.
Robert Floyd
t �
December 28, 1998
Page 2
To encourage your prompt attention to this matter, the City will not issue a citation for these
violations as long as you abide by these three conditions. However, I must warn you that the
proximity of the shoreline to the actual traveled roadway and the apparently unresolved question of
property ownership in this area, raises a question as to whether we are in a position to recommend
the issuance of permits for work which may be within the City road right-of-way. We will expect
you to provide proof of ownership of the areas you are filling, for review and acceptance by the City
Attorney.
Should you have any questions or wish any help in putting together your permit application, contact
either Mike Gaffron at the City of Orono or myself. You might also wish to consult with Greg
Gappa, Director of Public Services, as we concur that the shoulder and driving surface of West
Ferndale Road could also be compromised by the erosion of the bank if some action is not taken.
Thank you in advance for your cooperation. I hope we can come up with a solution to this problem
which will be long-term while having minimum negative impact on Lake Minnetonka.
Sincerely,
Bruce Vang
Field Inspector
B V/ch
cc: Greg Gappa, Director of Public Services
Mike Gaffron, Senior Planning Coordinator
. . __. , �L�C� (�C.. Ff' d'i✓�l/f(,(� ��,� -
Jan. 25, 1999 .��
Mr. Bruce Vang .- � ,� 1���
Field Inspector '
City of Orono � ��� '��•�'"�
27�0 Kelley Parkway
Orono, Mn. 55356
Dear Mr. Van�,
I have just returned from vacation time spent out of town and am in
receipt of your Dec. 28, 1998 letter regarding your response to my Dec. 21,
1998 request for an e�tension of land alteration permit number 01040�
issued on June 23, 1998.
I have to say I am disappoiiited by ti'our reponse. My request was for a
simple el�tension of the O 10�0� permit wliich had alread_y been granted to
me specifically to complete work on shoreline property o�vned by my family.
I provided the required written request to your office before the expiration
date of permit 010404 as is required by your procedural rules. In that
request, I provided an explanation of what we are doing, what we �vish to
accomplish, and why we have been tinable to complete the work within the
initial time period the permit provided. I eYplained our reasons for doing the
�vork on Nov. 30, 1998 which would ha��e been well before the eYpiration
date of permit 010404. I also explaitied that we have been denied the ability
to complete the ���ork before the expiration date.
As you are well aware, on Nov. 30, 1998 you amved almost immediately
after we began work that morning and after a lengthy discussion with you
and Mr. James Hafner, of the MCWD, whom you had telephoned and
requested to join us, you and Mr. Hafner insisted that we stop work
immediately at that time and determine whether any� additional permits
would be required by the Minnesota Department of Natural Resuurces or the
Minnehaha Creek Watershed District. I felt that fiirther discussion at that
time was not appropriate as I had already had a number of�i-orkmen
patiently waiting at ri��o work sites and large equipment sitting idle at both
sites for, as I recall, nearly an hour while discussing the situation with you
and Mr. Hafner and a���aitin� Mr. Hafner's arrival at our lakeshore site. As
you will recall, there ���as some variance of opinion as to what each of us,
including you and Mr. Hafner, felt could and should be done immediately
�.ti�ithout the need for any additional permit. Both you and Mr. Hafner also
stated you felt input from the MDNR �vould be helpfiil in deterniining what
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could and could not be done and what permits may be reqliired. You and
Mr. Hafner accompanied my father and myself in tourinQ the entire «�ork
site both north and south of the pavement and a large distance east and west
along our property. During this time, we discussed each and every hole,
burrow, depression, cave in, and other spot, we were interested in working
on, as well as the entire shoreline north and south of the roadway. We also
discussed our plans for working on the shoreline of our pond north of the
road�vay. As there �vas some dif�erence of opinion on what you and Mr.
Hafner ���ould each consider acceptable work under the cunent City of
Orono land alteration permit number O l 0�0�, I asked the rivo of you to
point out, hole by hole, what ���e could immediatel}� complete work on and
which may need to wait for further clarification or possible additional
permits to fill. You and Mr. Hafner then agreed to do so and did not grant
permission on any hole where the rivo of you either did not agree, felt input
was needed from the MDNR, or had anti� resen�ations about, as well as any
that either of you definitel}� felt would not be permitted to be filled. I
e�plained to both of y-oti at tlie time that I disagreed with some of the criteria
and reasoning being used but that we were requesting and needed a detailed
eYplaination of���hat you would each allow us to do that day. It was also
agreed that we would not be required to remove fill already in place and
would not be penalized or fined. As we were willing to stop work
immediately when you requested and ���ere cooperating in determining ��-hat
additional immediate work was appropriate that day. As �vell as our
cooperation in seeking additional information regarding permit requirements
if any. The conditions �ve were requested to fulfill in exchange were as
follows.
1. All filling into the water, lakebed, floodplain, and any other site would
stop immediately �vith the exception of the soil already on site being used to
fill specific holes as agreed to by you and Mr. Hafner and for work along the
pond shore north of the roadway. (At my direction, once the two of yoti had
agreed on tliese specific areas, ��rork using the remaining soil on site was
immediately begun �vhile in the presence and clear vision of both you and
Mr. Hafner, as agreed, and neither of you objected to our filling these).
2. We would immediately use the silt fence, already on site arid on hand
during the work, to pro��ide erosion control and pre�-ent rtinot�of the soil fill
already in place near the lake. Specifically, �ve were to install silt fence to
contain all fill placed that day�, south of the road«�ay, on the outer lal:e side,
�vhere it was in contact ���ith the water.
3. We would begin discussions with the MCWD and MDNR and submit an
application to them by Jan. 1, 1999.
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I detinitel}- do not agree that a conditioiial use pertiiit froiii the City of
Orono �vas a condition of this arrangement as you state as number three in
your Dec. 28, 1998 letter. You and I did discuss the existing fence south of
the road�vay and whether you and the city would require us to reposition
lumber removed to provide access for the equipment used in the work on
Nov. 30, 1998. I was clearly told by you that that would not be necessary as
you were familiar with the fence and its original existance and condition
frotn your earlier ��isit to the site in June of 1998.We also discussed my
desire to do maintenance and improvemetit work on the fence and �i�hether
any additional permit ���ould be required. You informed me that maintenance
work does not require a permit but that some changes or a new fence may
require a conditional use permit from the Orono City Council because of the
fence's location close to the lake. The written inspectiotl notice that you
provided to me on Nov. 30. 1998 lists the conditions in writing under the
comments section and does not include any mention of any conditional use
pennit. The third condition was the use of silt fencing south of the road, not
any conditional use permit.
It was also understood by me that even�one present on Nov. 30, 1998
agreed that a problem ob��iously was occurring to our shoreline and that it
�vas reasonable to seek a remedy involving some type of future additional
��-ork to be determined with additional examination of the situation and
investigation of what other permits may be required. I did not understand
an�•one to purport that damage had not occurred to the shoreline or that our
desire to take action ���as inappropriate. What was in disagreement was how
to go aboiit it and what was permissable Linder our cunent permit. I was
clearly told that we �vould be allowed to utilize the soil already waiting in the
trucks currentiv at the site but only in filling in the holes specifically agreed
on by both you and Mr. Hafner. I specifically asked if we could also
continue v��ork on the shoreline of our pond, north of the roadway, which
Mr. Hafner did not object to, apparently as he considered it a private pond
�i�hich was not a concern of the MCWD. You objected to any further work
any�where beyond the soil already on site and the specific holes already
agreed on. You stated that only soil already on site could be used for any
further �vork along the pond shore. I did not feel this limit �vas appropriate
but agreed to do so in the spirit of cooperation. We filled the specific holes,
we were told �vere acceptable, and some holes along the pond utilizin� only
the soil alreadv at the site.
That very same day we contacted the MDNR and arranged to have Ms.
Ceil Strauss from the MDNR visit the site and discuss the situation with us
the following day. My fatlier and I met with Ms. Strauss Dec. l, 1998 on site
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and discussed «�hat we «-ished to accomplisli and various possible niethods
to accomplish this as �vell as the permittin; process in �eneral. All three of
us walked north and south of the roadwati� and east and tivest along the site.
1�1s. Strauss told us the degree of�vvrk she tii�ould find accepta.ble with a
shoreline stabilization permit from the MDNR and MCWD. She also
explained that work beyond that would require a different type of permit
called a shoreline restoration permit. We �vere told to initiate the permit
process �vith an application to the MCWD and �vhat type of permit may be
reqtiired could be more accurateh� determicied wllen the details of�vhat �.ve
decided on and choose to pursue �vere clearly detlned.
I did submit a lenghty and detailed permit request to the MCWD before
Jan. 1, 1999 and understand that that �vill in tttrn be shared with the MDNR
by the MCWD and a seperate application to the MDNR �vas not necessary.
We have fiiltilled all the requirements yoti requested on No��. 30, 1998
and �vill contintie tu seek anti� additioiial permits required bv the MCWD and
MDNR for the ���ork �ve w-ish to do at this time.
As to the e�-tention of time I requested on land alteration permit number
O 10�0� from the city of Orono, I provided a �vritten request for an eYtention
«-ithin the required tinie and see no reasoti that yoti should be reluctant to
grant it, as it is no di�erent than �vliat you already granted on June 23, 1998.
Wlien I met �.i-ith vou in June of 1998 at otir lakeshore, I very clearly
e�plained the additional �vork �ve ��-ished to do to repair holes, depressions,
and ca��e ins both north and solith of the roadwav and e�-tendinQ east and
�ti�est. You and I �valked the shoreline south of the road��-ay and I pointed out
a ntimber of holes, burrows, etc. and elplained our desire to use this pennit
(010404) to complete the additional �vork. You and I also walked north of
the roadway and I sho�ved you similar holes along our pond north of the
roadway. My ��-ritten application for permit number 010404 also states my
intention of filling these holes throughout my propertv clearlv.
On June 23, 1998 I also showed vou a number of holes and cave ins that
we had already iilled o��er man}- years. What we were doing was nothing
different than ��-hat we had done on many occasions during our twenty years
of living here. We routinely �ill in the worst holes and repair dartiage as part
of our regular niaintenance of our propertv. This past work has never caused
anti• problem, of any ri�pe, for anyone. On tlie contrary', it is easy to see that
this past work has halted damage to trees, our shoreline, our lawns, the road
shotilder �vhere people walk, and the pavement. There are spots, still clearly
��isible, where the pavement had started to crumble and fall awav due to
bunows undermining the road and the road collapsing into the hole. Our
work halted this and stabilized and supported the pavement. Without our
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past «�orl:, the road«�ay area ���ould be unsate and «ould ha��e required ���orl:
by the City to maintain the safety uf the roadway. There are a number of
trees and plants �vhich only survived because we had done past work to
repair damage to the soil surrounding their roots. We have seeded these sites
and encouraged plant grow�th to provide an attractive, usable, stabilized
surface as well. Of course it takes a reasonable amount of time to attain this
growth after each repair. We intend to seed the work site you visited on June
23, 1998 so it �vill have grass to match the surrounding mow�ed lawn. We
have no desire to have bare earth creating mtid arotind our docks, lawns, and
shoreline. VVe also wish to minimize erosion each time a repair is done to
prevent having to repeat the time, labor, and expense of the work all over
again. Sho��ing you our past repairs was intended to communicate this
clearl_y, as well as demonstrate that our work was not harming anything.
Many of the earlier repaired sites are no�v indistinguishable from the
surrounding land. No one has ever had ariy difficulty ���ith our repair �r�ork in
the past aild tllere is �io reason atiyone should lia��e a probleiil witli it no��-.
My father also spoke �vith you eYplaining several probleins in the area of
our docks, shoreline. pond area, and lawn. These included the following.
1 . Deep bunows into the land of our dock area.
2. Deep buno���s in the lakeside, undermining Ferndale Road and tlie
shoulder of the roadwav.
3. Underiiiiiiitlg and eYposure of tree roots causiiig instability of tlie trees
bet�veen Ferndale Road and the lake.
�l. Ex-tensive burrov�-s in the la��n and pond area between our house and
Ferndale Road.
He went on to further point out damage that had already occurred
because of these burrows and associated processes. The loss of a large
cottonwood tree near our docks during a storm some years ago, �vhich we
feel is largely due to loss of soil siinounding the tree base. The tree's root
ball detached and tipped up, out of the surrounding weakened shoreline.
This resulted in the tree cutting ot�po��-er and telephone sei-�-ice to the entire
area and the fallen tree blocking Ferndale Road. Lucltil}� no one was injured
in this incident, although it resulted in the damaged live electrical wires
laying across and also completely blocking the roadway at the time. This
same cottonwood's remainin� stump and roots have continued to lose soil
and are a perfect e�ample of what we are repairing. He also disctissed the
similar loss of a smaller tree fiirther east and also south of the roadway more
recently, which again blocked the road, as the root ball detached and tipped
upward, out of the weakened lakefront soil and sunounding burrows. Again
we were lucky, and no one was injured. This tree had to be se��erely topped
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in urder to tip tlie root ball bacl: into place aiid clear the road«ay. He also
sho�ved ��ou a titimber ��t�e�istinU trees alona our shoreline bet��-een the lake
and the pa��ement which are now leaning badly toward the pavement, due to
similarly ��eakened surrounding soil at the roots, and which are very likely
to uproot and fall across the roadway in future strong winds unless further
work is done. Explairiing that the only way to save them now will probably
be to top them severely and strenghten the roots with additional soil. He
stressed tlie importance of preservin� these trees not only for their aesthetic
valtie but also for their ability to stabilize the soil between the lake and the
road and in turn maintaiii and protect the stability of Ferndale Road.
Both my father and i felt you were in agreement with us during your site
visit June 23, 1998 on the need to correct these problems with further work.
V�Ie all discused the difficulty in ho�v to choose the most effective method to
tise and some possible choices such as shoreline rip rap, soil fill stabilized
iising silt fencing and the planting of�•egetation, and sea �valls. You agreed
«-ith us that tlie repair of the most se�-ere holes should be done soon. You
su�gested that ���e could communicate with the MDNR to Qet additional
information and suggestions regarding possible methods to solve these
problems and effective soil stabilizatiotl metliods. We understood this to be a
helpfiil suggestion, not a requirement.
My w'ritten application and the permit itself liave no limiting conditions
only allowing for �vork already done oti Jurie 2�3, 1998 as you seem to claim
in yotir Dec. 28, 1998 response. It is totally illogical that if it was a�reed
upon and intended only to allow the �vor� already completed on June 23,
1998 that it ���ould not have been clearly written as such and clearly state
those supposed limitations, would have an e�piration date of Dec. 23, 1998,
or that it would have been granted for and specifically altered by the city to
provide zero to five hundred cubic yards of fill allowed under this permit,
instead of the form's preprinted one to one hundred cubic yard quantity. The
volume of fill put in place prior to the permit was much, much less than one
htindred cubic yards and you certainl}' saw this ���hen yoti posted your stop
work order at the site on June 23, 1998, prior to issuing permit number
01040�. The work being done on Nov. 30, 1998 was as provided by the
permit. It was land alteration of the correct site using a quantity of soil well
below the maYimum cubic yard limits of the permit. The work being done
was the filling of holes and low spots on our property and along our
shoreline exactly as I requested on the permit application and as granted in
permit 010404.
You did clearly state during our June meeting on site that �ve would need
to control erosion as much as possible and that the work we planned to do
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;,��tild also reqtiire additioilal permits from tlle MDNR and MCV4'D atld that
it �r��as our responsibility to determine if additional permits were required. For
a great number of reasons I did not and still do not belie�-e any pennits
should be required by anyone for us to do the work being done on June 23,
1998 or on No��. 30, 1998. Filling in an animal hole is a simple and
reasonable thing for a property owner to do as routine maintenance. Our
activities are not hurting the lake, floodplain, wildlife, neighbors, public,
roadway, or anyone else. We have exercised great concern and consideration
for the animals living in these holes and surrounding wildlife and plants as
�ti-ell. Well beyond w-hat is required b}� any laws or codes. We did not rush
into this or carelesslv undertake any action. We thought long alid hard over
the best way to accomplish this and I really resent your statement in your
Dec. 28, 1998 response that our actions were " extremely careless and
clearly illegal." Our actions were not and it is very uncalled for and
counterproductive to make such a charge. As I have explained, �ve waited
iiiany� months after Qaiiiin� the permit to complete this �i-ork for a nlinlber of
��ery good reasons. We have been very patient, deliberate, careful, and
cooperative about this whole endeavor in spite of numerous other factors
that I �i�ill spare you the details of covering here. .
Your Dec. 28, 1998 response claims the we were " dumpin� fill into Lake
Minnetonka" and " se��eral feet out into the lake". I strongly disagree with
this. I sho��ed ��oti on site on No��. 30, 1998 that we had carefiill�� limited tlie
till to areas that clearlv had long had large and e�-tensive tree stumps and
root svstems in place. And at no time filled any area that �.vas not clearly and
`�isiblv a llole in solid ground or damaged land showing obvious evidence of
ha�•ing been dry soil capable of stipporting land based plant grow�th over an
eYtended period of time.
V�e are not dealinQ with cypress or mangrove trees or anything similar
which is capable of growillg in standing water. The trees and bushes in the
filled and planned work area sprouted and grew to maturity, or at least a
��ery significant age, over a long period of time as demonstrated by the size,
growth pattern, and position of the stumps and roots which are numerous
and clearly visible. I do not believe lake bed or standing water are capable of
grow�ing tliese land based plants for an extended period of time. I also do not
believe that these plants would germinate and begin growth successfully
under standing water as would have to have been the case if this was truely
lake bed as you are apparently purporting in your response. You would not
see ruots growing out into thin air as would have to be the case if these
plants and roots were not fonnerly covered by soil. Without sunounding
solid soil these large stumps would have had insufficient support to hold up
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a proportiociate tree canop�� and ��itlistand ���ind and stornis to reach tlieir
current size and thickness. For anyune to claim that the specific areas we
tilled «�ere not at one time solid, dry soil is unreasonable and incorrect.
Therefore the question is, where does the land stop and the lakebed begin.
Apparently we do not agree on this point.
The City, MCWD, and MDNR do not require every property owner to get
a permit or permission every time an animal digs a hole in their land and
they �vish to fill it in to repair the damage. That is not the purpose, intent, or
Qoal of these regulations and codes. Regardless of ho�v many cubic yards of
till it tal:es to accomplish the task, these are not intended to prevent property
owners from repairing such damage. The fact that we are dealing ��-ith many
large holes does not change this basic fact. Ai�er enough time, digging, and
erosion, even the most solid of ground �vill be damaged as lias occurred here.
We are not asking to do anything ��ild or unreasonable here. To attempt to
use these codes to prevent us from tilling in tliese holes and repairing this
ob��ious dama�,�e is clearly� a gross niisuse of the codes and contrary to their
intended purpose. It is siinply not reasonable to pre��ent propei-ty o�vners
from repairing dama�e to their land.
I ha�-e no intention of standing guard twenty four hours a day, every day�,
forever. to attempt to prevent animals from digging in my land. That is
certainl`� t�nreasonable arid abstird for anvone to expect, just so tllese codes
can be enforced to some eYtreme degree as �i�ritten w�ithout anv common
sense, reason, or fairness used in their enforcemetit. I also have no intention
of attemptin� to kill any or all of these animals for the pointless misuse of
these codes in applications clearly outside of tlieir intent.
To claim that once an animal digs a hole it becomes some untouchable
tloodplain or lakebed is also unreasonable and illogical. The intent, purpose
and goal of these laws and codes protecting lakebeds arid floodplains is
clearl}' not to prevent propert}� owners from filling in animal burrows and
holes in their shoreline. They were enacted to protect true lakebed and
�loodplain. Not to purport any animal liole reqtiires the same protection. If it
isn't floodplain or lakebed before the animal dug the hole, it is not lakebed or
floodplain aiter it digs it. It is simply a hole which the property o�vner clearly
has a right to repair. Any complaints that the animals are contaminating the
lake b}' digging and shouldn't be allowed to dig any fiirther are ridiculous
and not the intent of any code or la��•. If this type of digging was going to
ruin Lake Minnetonka, it would have been ruined long before any humans
arrived to notice and would ha��e reached a condition beyond repair long
ago!
The work we are doing will in no way impede or endanger the City's,
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public's, or utilities' abilin� to utilizc, the road easem�nt as intended. On the
contrary, it will benetit e��ervone by repair:ng the damage to our property
and make the road use safer and easier for all. No one will gain anything by
preventing us from repairing this land. Lake Minnetonka and the
environment �vill not gain anything by preventing us from repairing this
land. Nothing «�as being harmed when the original amount of soil �vas
present and no one ��-ill be harmed in any way �vhen we restore it to its
original condition.
Nothing ���e are doing or planning to do �vill infringe on or interfere �vith
the use of the road«�ay easement in any way�. There is no cotiflict here with
its utilization.
Regarding ��our comments, in your Dec. 28, 1998 response, about
property ownership in this area, no one to m�� kno�vledge has made any
claim what so ever that we are doing anything to land that ��-e do not
riQhtfiillti• and clearlv ow-n. I request that any such assertions, if an` have
been made, be brouQht to my attention ii7imediatel��, all parties in�-olved be
clearly identified. and any and all such information and details be provided
to me in �vritten fonn to be dealt with appropriately. Otller���ise, I see no
problem or con�lict that would prevent extending permit 01040� or any
others that �ve may request. You had no difficulty issuing it on Jtine, 23,
1998.
We ha�e tlad over si� inonths since the perniit was issued aloile, and ha��e
not done any�thinQ the least bit unreasonable or incorrect. This is a very
simple and reasonable request that should be easily granted �vithout the need
for any additional complication. I hope you �vill reconsider and grant my
request for the eYtention of permit number 010404 and will not have any
further problems with our acti�-ities. Thank }�ou for your time and assistance.
Sincerely,
Robert T. Floy�
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