DEEPHAVEN PLANNING COMMISSION

TUESDAy JANUARY 15, 2008

7:00 P.M.

Page 1

CALL TO ORDER: Chairman Dyb called the meeting to order at 7:00 p.m.

PRESENT: Chairman Dan Dyb, Commissioners Barbarajean Brandt, Jeff McKinney, Warren Nelson (7:02), Josh Sparber and Bob Werneiwski

ABSENT: Commissioner Walter Linder and Council Liaison Steve Adams

OTHERS PRESENT: Council Liaison Paul Skrede and Zoning Coordinator Gus Karpas

MINUTES OF December 18, 2007

Motion by Commissioner McKinney, second by Commissioner Dyb, to approve the minutes of December 18, 2007 as presented. Motion carried 3-0-2. Commissioners Sparber and Werneiwski abstained since they were not in attendance at the December 18^th meeting.

PUBLIC HEARINGS

SPECIAL EVENTS PERMIT – Lake Country Builders, 4715 Old Kent Road, (R-2, 40,000) request to include a remodeling project located at the subject property in the Remodeler’s Showcase being held the weekend of March 28-30.

Zoning Coordinator Karpas reviewed his staff report. He said the applicant would like to include a project in the Remodeler’s Showcase and that the city ordinance requires a special use permit for participation in Showcase Events such as the Parade of Homes or Remodeler’s Showcase. He said the requirements to qualify for approval are clear and require the applicant to submit information on hours of the event, how parking will be handled and the location of any proposed signage. In addition, the applicant must provide proof of insurance coverage, which includes the coverage of city employees.

Karpas said he recommended approval of the request, since the applicant has satisfied the requirements of the ordinance.

Renae Aldecocea of Lake Country Builders said she had nothing to add to th presentation.

Chairman Dyb opened the public hearing. Hearing no public comment, the public hearing was closed.

Commissioners were supportive of the request.

ACTION: Motion by Commissioner Werneiwski to recommend that the City Council approve the special use request to include 4715 Old Kent Road in the Remodeler’s Showcase to be held March 28-30 as presented. The applicant has complied with the ordinance regulations for participation. Commissioner Dyb seconded the motion. Motion carried 6-0.

SPECIAL EVENTS PERMIT – Aarbor Custom Homes, LLC, 18475 Highland Avenue, (R-3, 20,000) request to include a remodeling project located at the subject property in the Remodeler’s Showcase being held the weekend of March 28-30.

Zoning Coordinator Karpas reviewed his staff report. He said the applicant would like to include a project in the Remodeler’s Showcase and that the city ordinance requires a special use permit for participation in Showcase Events such as the Parade of Homes or Remodeler’s Showcase. He said the requirements to qualify for approval are clear and require the applicant to submit information on hours of the event, how parking will be handled and the location of any proposed signage. In addition, the applicant must provide proof of insurance coverage, which includes the coverage of city employees.

Karpas said he recommended approval for the request, since the applicant has satisfied the requirements of the ordinance.

Karpas said it was brought to his attention that the applicant’s certificate of insurance expires prior to the event and that he would recommend a condition be put on any motion to approve that the applicant submit updated insurance prior to participation in the event.

Lamont Stienman said he had nothing to add but could answer any questions the Commission may have.

Chairman Dyb opened the public hearing. Hearing no public comment, the public hearing was closed.

The Planning Commission supported the request with a condition that the applicant submit an updated certificate of insurance.

ACTION: Motion by Commissioner McKinney to recommend that the City Council approve the special use request to include 18475 Highland Avenue in the Remodeler’s Showcase to be held March 28-30 as presented. The applicant has complied with the ordinance regulations for participation. The motion is conditioned that the applicant submits an updated certificate of insurance. Commissioner Sparber seconded the motion. Motion carried 6-0.

VARIANCE – Dan Shanesy, 3608 Lowell Street, (R-3, 20,000) – The applicant is requesting to construct a garage addition onto an existing non-conforming footprint which would encroach into the required corner lot, exterior side yard setback. The requested variance is to encroach one foot, four inches into the required twenty-five foot corner lot, exterior side yard setback.

Zoning Coordinator Karpas reviewed his staff report. He said the request was to use the footprint of the existing home to construct the garage addition. The degree of encroachment would diminish as the addition extends from the existing home.

Karpas said he recommended approval of the request since the request was a reasonable use of the property and the placement of the existing home limits the development options.

Dan Shanesy spoke to the request. He said he originally planned to go closer towards the road, but found out after he got a survey, that he already encroached into the required setback. He said that even though he would be encroaching into the required setback, the proposed addition would be set back forty-two feet from the edge of the road.

Chairman Dyb opened the public hearing. Hearing no public comment, the public hearing was closed.

Commissioner McKinney was in favor of the request as presented.

Commissioner Sparber also supported the request and felt it would be unreasonable to ask the applicant to set the addition back further from the road than the existing home just to meet the setback.

Commissioner Nelson had no issues with the request. He felt it was a good design and maintains the existing encroachment.

Chairman Dyb was in favor of the request. He noted it was based on the lot size, the degree of encroachment and the fact the property was a corner lot.

Commissioner Brandt was in support of the request based on the placement of the existing home.

Commissioner Werneiwski felt the request was reasonable and had no issues with it.

ACTION: Motion by Commissioner Nelson to recommend that the City Council approve the variance request to encroach one foot, four inches into the required twenty-five foot corner lot, exterior side yard setback for the proposed garage addition, as presented at 3608 Lowell Street. A hardship exists in placement of the existing home, which hinders improvements on the property without the issuance of a variance. He noted the request is reasonable and does not negatively impact the character of the adjacent properties. Commissioner Dyb seconded the motion. Motion carried 6-0.

VARIANCE – Peter and Wendy Lee, 3275 Robinson’s Bay Road, (R-2, 40,000) – The applicants are requesting to construct a garage addition with living space above it which would encroach into the required south side yard setback and exceed the maximum permitted impervious surface area. The requested variances are to encroach five feet, one inch into the required twenty-five foot south side yard setback and to exceed the maximum permitted impervious surface area percentage of twenty-five percent by 8.4%.

Zoning Coordinator Karpas reviewed his staff report. He said the request was to construct the proposed garage addition using the existing south line of the existing non-conforming home. The proposed addition would not create an additional encroachment into the south side yard.

Karpas said he recommended approval of the request since the request was a reasonable use of the property and the placement of the home did not allow for expansion without the issuance of a variance. The proposed addition would not impact the adjacent properties and the project would be in keeping with the existing character of the neighborhood.

Jeff Murphy, Murphy Company, spoke to the request stating that he had nothing to add at this time to staff’s presentation.

Chairman Dyb opened the public hearing. Hearing no public comment, the public hearing was closed.

Commissioner Werneiwski asked about the lowest floor elevation. Zoning Coordinator Karpas said the ordinance requires a lowest floor elevation three feet above the Ordinary High Water Level. He said this property sets up on a hill and appears to have no issues with that regulation. Karpas said he has discussed this issue with Mr. Murphy and has asked that a survey with a spot elevation shown at the foundation be submitted with the building permit application if the request is approved.

Werneiwski supports the request and feels it is a reasonable expansion of the existing home.

Commissioner Brandt asked if there would be any negative impact on adjacent properties. Mr. Murphy said the neighboring homes are set a ways away from the subject property and the increase in roof height is minimal. Brandt said she supports the request.

Chairman Dyb discussed the reduction of hardcover through the removal of driveway area. Mr. Murphy said a total of 682 square feet of driveway area would be removed. Dyb said he was supportive of the request as presented. He feels the shape of the lot creates a developmental hardship in regards to setback and the nature of the lot and placement of the home requires a long narrow driveway making it difficult to comply with the impervious surface standards. He said the encroachment is minimal and there would be little or no impact on adjacent properties.

Commissioner Nelson didn’t have any issues with the request.

Commissioner Sparber agreed there would be minimal impact on adjacent properties and supports the request.

Commissioner McKinney supports the request as submitted.

ACTION: Motion by Commissioner McKinney to recommend that the City Council approve the variance request to encroach five feet, one inch into the required twenty-five foot south side yard setback and to exceed the maximum permitted impervious surface area by 8.4%, for the proposed garage addition, as presented at 3275 Robinson’s Bay Road. A hardship exists in the placement of the existing home and the dimensions of the existing lot preventing compliance with the ordinance requirements. The proposal is not out of character with the surrounding area and the proposed addition would follow the building line of the existing non-conforming structure. It was noted that the amount of overall impervious surface on the lot is being reduced. Commissioner Dyb seconded the motion. Motion carried 6-0.

ADMINISTRATIVE PLAT/VARIANCE – Richard Denman, 4285 Circle Drive, (R-2, 40,000) A preliminary plat request to subdivide an existing property into two lots. The proposed lots would comply with the minimum lot area requirements for the R-2 District. The requested variances are for thirty-seven feet of the required seventy-five foot road frontage requirement for each lot.

Zoning Coordinator Karpas presented the request and reviewed his staff report. He said the request is for a two-lot subdivision that would create two vacant lots in the City of Deephaven once the existing home is removed. Access to the lots would be provided by private drives to each lot.

Karpas said he recommended approval for the administrative plat and variance request. He felt the configuration of the property and its location on a cul-de-sac creates a practical difficulty in platting the property. The applicant proposes individual driveways for each property and has demonstrated an ability to develop the properties within the zoning and slope requirements.

Karpas submitted into the official record a letter from the City Engineer verifying the slope information on the property.

Richard Denman, Charles Cudd Company, spoke to the request. He said it’s rare to find opportunities like the one this property represents. He said his intent is to subdivide the property into two building sites, one that he intends on building his personal home on and another that would be sold. He said the requested variance is not out of character with the neighborhood and that two additional properties do not currently comply with the road frontage requirements.

He believes the development of two smaller homes would benefit the neighborhood more than one larger structure. He said he has met with the neighbors and understands their concerns but still believes the properties could be developed in a manner that enhances the neighborhood.

Chairman Dyb opened the public hearing.

Melissa White, 4245 Circle Drive, said the neighbors have met to discuss this issue and have developed a handout for the Commission outlining their concerns with the request. She said there are key points that must be addressed when approving a variance request. She believes the request falls short of these points in that not only has an undue hardship not been demonstrated, there does not appear to be one. She believes the proposed development would be fundamentally inconsistent with the existing neighborhood.

In terms of undue hardship, she said the ordinance requires proof that the hardship results from the strict compliance of the ordinance. She does not believe this has been demonstrated and that the request seeks a significant variance greater than fifty percent of the required lot frontage. She said the applicant has not been deprived the reasonable use of the land and that denying the variance would not deprive the applicant from the substantial use and enjoyment of the property. In approving the variance, the City must find that the request would not be injurious to other properties in the neighborhood.

She does not believe the applicant would be denied the reasonable use of the property if the variance is denied. Reasonable uses still exist for the property whether it be resale of the property as is, the remodeling of the existing home or the demolition and construction of a new home on the property. She said the desire to generate return on a proposed investment does not rise to the level of a hardship.

Ms. White said there would be a negative effect on the remaining properties in the neighborhood in that assessed values may be increased with the development of the proposed lots, while market rate may not increase. The neighborhood is concerned about safety in relationship to the proposed driveways and noted that there are already a number of driveways in a very narrow space at the end of the cul-de-sac and the proposal would add another one.

She said there would be a distinct change in the lot and feel of the neighborhood with the development with more homes, closer together.

She said the current ordinance requires a specific road frontage, but does not outline exceptions for properties located on cul-de-sacs, and reiterated that the requested variance would represent a road frontage half of what is required under the city ordinances.

She said the city has a number of considerations to keep in mind when reviewing a variance request. She said the stable development of the community/neighborhood, assessing whether a proposal is in harmony with the adjacent area and the essential character of the neighborhood all must be considered. She does not believe the applicant has satisfied these considerations and the staff report does not address them.

She thanked the Commission for their time and stated that she is opposed to this request because it does not meet the criteria for the granting of the variance and that it would have a negative impact on the existing neighborhood.

Mike Chappelle, 4282 Circle Drive, distributed pictures showing the existing conditions in the neighborhood. He said he and his wife moved to this neighborhood because they fell in love with the feel of it with its natural wooded area and wetlands. He said the neighborhood is unique within the community in that it is heavily wooded with old tree growth. He said the neighborhood is private and quiet with low turnover. The majority of the homes were constructed between 1942 and1964 and are located on lots ranging in size from one and half to almost two and a half acres. Homes range in size from 2,500 to 4,000 square feet and are situated as to not impede sight lines. He believes these are the reasons most of the current homeowners purchased their homes in this neighborhood.

He said the properties in the neighborhood well exceed, in the range of fifty to one hundred and thirty percent over, the ordinance requirements in terms of lot area and the proposed subdivision would create lots half the size of those in existence.

He said there would be negative setback impacts with the proposal. He said the average setback between existing homes is approximately one hundred and nineteen feet. The proposal would decrease those setbacks to around fifty feet on the lots created on at least one of the existing lots directly adjacent to the subject property. He noted there are no properties located in the neighborhood, which could be subdivided without a variance.

He said approval of the request would be detrimental to the neighborhood by creating an additional driveway in a limited space, it would increase traffic, increase noise and light pollution, could have a negative impact on the aquifer, would cause a loss of mature trees and would impact the natural habitat.

He asks that the Planning Commission recommend denial for the request. Mr. Chappelle submitted a letter on behalf of Nelson and Helen Rodgers, 4262 Circle Drive, who were unable to attend the meeting, opposing the request.

Zoning Coordinator Karpas indicated that he also received an email from Mark and Patti Bauer, 4252 Heathcote Road, opposed to the request.

Jim Friedlander, 4167 Heathcote Road, said he doesn’t live on Circle Drive, but drives by the neighborhood on a daily basis. He believes the request would have a negative impact on the character of the neighborhood. He feels that a distance of fifty feet between homes is not enough given the nature of the neighborhood. He’s concerned about the city making a decision on the creation of new lots without a clear understanding about what type of homes would be constructed on them. He said there is a potential that larger homes, not fitting within the existing neighborhood, could be constructed on the lots.

Tim Roesler, 4059 Heathcote Road, said he is also concerned about the character of the neighborhood and the issue of creating odd shaped lots. He said the neighborhood is over sixty years old and those living there have an expectation that it would remain relatively the same. He said the burden of proof falls on those seeking to change the character and he doesn’t believe they’ve made a strong case.

Judy Mott, Real Estate agent representing the Ottenweller’s, current owners of the property, said the Ottenwellers believe the neighborhood could be improved with the proposed change. She said the existing home and detached garage are in a state of disrepair and the proposal would create two nice homes. She said something will happen to the property and, based on the value of the property, something will. She said change is good and noted the current request would create two smaller homes scaled to the neighborhood, rather than one large home out of character with the others in the neighborhood.

Amy Chappelle, 4282 Circle Drive, said it has been represented to the neighbors that the homes would be between 4,000 and 4,500 square feet. Even following that guideline, setbacks would be decreased and a number of mature trees would be lost. She said the current ordinance permits a maximum footprint in the R-2 District of 6,000 square feet, which she believes would be better for the neighborhood since it would still be less than the combined footprints intended for the proposed lots. She believes the proposal would change the look of the neighborhood.

Conner White, 4245 Circle Drive, read a letter to the Commission stating that the proposal would destroy the woods in the neighborhood and that it is in the best interest of the city to maintain the existing wildlife habitat. He said the traffic would be increased in the neighborhood, which would affect the neighborhood children playing in the cul-de-sac. He said the request would be out of character with the rest of the neighborhood.

Hearing no further public comment, the public hearing was closed.

Chairman Dyb noted that the City of Deephaven is filled with odd shaped lots, whose creation was fueled by the desire to live here. He said the current regulations on road frontage were created to deter the creation of flag lots and doesn’t believe it was intended to limit the development of lots located on cul-de-sacs.

Commissioner Nelson thanked the neighborhood for their presentation. He addressed the concern regarding increased traffic stating that he didn’t believe the creation of an additional lot would not noticeably impact traffic in the neighborhood. He commented that the layout of the road naturally limited speed. Nelson said he’s a little concerned that there is a potential to construct homes larger that what have been represented to the neighborhood and Commission.

Nelson said he agreed with the neighbors that a clear undue hardship has not be demonstrated by the applicant, but the existence of a dead end road shouldn’t be used to impede progress. He doesn’t want to see the loss of additional trees, and agreed there would be an impact in developing the lots. He said he could go either way on this request at this point and would like to hear other Commissioner comments.

Commissioner Werneiwski said he could also go either way on the request. He doesn’t believe the applicant has demonstrated an undue hardship and asked staff about the concept of practical difficulty. Zoning Coordinator Karpas said there might be cases where a clear hardship is not demonstrated, rather a practical difficulty, usually having to do with existing property conditions preventing compliance with the ordinance. He said his recommendation was based on the fact that the property could comply with all the dimensional requirements of the ordinance, but that a unique circumstance exists with the cul-de-sac preventing compliance with the lot frontage provisions. He felt this was a practical difficulty.

Commissioner Brandt said she would like to know more about when the road was designed and if, at the time of its development, the intent was that it service only the number of lots that currently exist. She questioned whether the creation of additional lots would impact the road. She noted the request was for the lot width and that the other dimensional requirements could be met, which is a bigger concern for her.

Commissioner Sparber discussed the proposed homes as they were represented to the Commission. He said the concerns about tree loss would not be lessened if only one developable lot remained and developed to the maximum extent allowed by the ordinance. He asked how the encroachment by the driveway located on the property directly east affected the planned driveways by the applicant. Mr. Denman said there would be no impact. Mr. Denman also commented that the proposed structure setbacks are not that different or bizarre from what currently exist in the city.

Sparber conceded that the size and placement of the homes on the proposed lots could have a negative impact on the adjacent properties and would be in favor of placing size restrictions as a condition of the plat.

Commissioner McKinney said he was not in favor of restricting the structure size. He said the city has approved similar requests for properties located on cul-de-sac and in his opinion, they should not be penalized. He noted the proposed lots comply with the dimensional requirements of the ordinance. He’s in favor of the request as presented.

Chairman Dyb questioned whether the required road frontage would be the same for cul-de-sacs if the ordinance was being drafted today, or if there would be some consideration in terms of a reduced road frontage for those lots.

Commissioner Werneiwski said the city is full of odd shaped lots that have been carved out to maximize the use of property. He said part of him feels the request is reasonable, but the other part likes the idea of some larger lots in the city. He believes if the development were done today the radius of the cul-de-sac would be larger creating larger lot frontages.

Commissioner McKinney reminded the Commission that the ordinance permits one acre lots in the R-2 District and that the proposed lots exceed that area.

Commissioners discussed the proposal in terms of character of the neighborhood, with no clear agreement on whether there would be a negative impact.

ACTION: Motion by Commissioner McKinney to recommend that the City Council approve the administrative plat and variance requests to subdivide an existing property located at 4285 Circle Drive into two lots, as presented, with the following conditions; 1) that the applicant pay all applicable city fees including a sewer lateral for one lot, the park dedication fee as determined by the City Council and all professional fees incurred in the review of the plat including all City Attorney and City Engineer fees. The applicant has demonstrated a practical difficulty in that the property is located on the end of a cul-de-sac and design alternatives are not available to develop the property within the ordinance requirements. It was noted that the proposed lots comply with all the remaining dimensional requirements of the ordinance. Commissioner Brandt seconded the motion. Upon roll call vote on a motion to approve, Commissioners Brandt, McKinney and Sparber voted aye. Commissioners Dyb, Nelson and Werneiwski voted nay. The motion to approve failed constituting a denial under Minnesota State Statutes.

Chairman Dyb called a recess of the Commission at 8:30 to allow those in attendance for this request time to vacate. He reconvened the meeting at 8:40.

ORDINANCE AMENDMENT – Amendment of Section 1310.03 of the Zoning Ordinance regulating the maximum permitted building coverage area on a lot by adding a provision requiring a public hearing in front of the Council to exceed the maximum permitted building coverage area.

Karpas discussed the proposed ordinance amendment. He said the Planning Commission discussed this amendment at their December meeting. At that time, the proposal was to add a Special Use provision, which the Commission had some concerns with. The proposed amendment would require a public hearing before the Council for requests to exceed the maximum coverage area.

Karpas recommends approval of the ordinance amendment.

Chairman Dyb opened the public hearing. Hearing no public comment, the public hearing was closed.

The Commission had no comments or changes for the proposed ordinance.

ACTION: Motion by Commissioner McKinney to recommend that the City Council adopt Ordinance 13-45, establishing a public hearing requirement for requests to exceed the maximum permitted building coverage area. Commissioner Dyb seconded the motion. Motion carried 6-0.

ORDINANCE AMENDMENT – Amendment of Sections 1310.10 and 1345 of the Zoning Ordinance defining and regulating outdoor play structures.

Karpas discussed the proposed ordinance amendment. He said the current ordinance does specifically regulate outdoor play structures. The proposed amendment would establish setback requirements.

Karpas recommends approval of the ordinance amendment.

Chairman Dyb opened the public hearing. Hearing no public comment, the public hearing was closed.

The Commission discussed the addition of height and area restrictions on play structures. Karpas said the ordinance could be amended to add a height restriction. He said the concept of area measurement would be more difficult since it would have to be determined how it would be measured.

Commissioner Brandt commented that a provision could be added stating that once a play structure exceeded a certain area, it would be deemed an accessory structure and regulated as such.

Commission Sparber commented that these regulations could negatively impact smaller lots.

The Commission agreed that a height restriction of twelve feet to the peak of the roof would be reasonable. The Commission could not agree on the establishment and measurement of play structure area.

Zoning Coordinator Karpas suggested a change in the definition adding the term “by children”. The Planning Commission agreed.

ACTION: Motion by Commissioner Werneiwski to recommend that the City Council adopt Ordinance 13-46, establishing setback regulations for outdoor play structures, with the addition of the twelve foot height requirement and the amendment of the proposed definition limiting the use of a play structures to children. Commissioner Dyb seconded the motion. Motion carried 4-2. Commissioners Brandt and Sparber voted against the motion to approve.

Commissioner Brandt felt an area regulation needed to be established, while Commissioner Sparber was concerned about a negative impact on smaller lots.

LIAISON REPORT

Council Liaison Skrede said the Council discussed a number of issues as their last meeting, voting unanimously to approve the variance request by the Vogts, the special use request by Grace Lutheran Church and the Special Events permit for Marquis builders.

He said the Council held a lengthy discussion on the request by the Rappaports for their play structure located in the required lake yard setback. The Council eventually voted 4-1 to approve the request with a number of conditions.

ADJOURNMENT

Motion by Chairman Sparber to adjourn the meeting. Commissioner Dyb seconded. The motion carried 6-0. The meeting adjourned at 9:10 p.m.

Respectfully submitted,

Gus Karpas

Zoning Coordinator