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City of Deephaven, Minnesota

 

"two square miles of tranquility"

 

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

PRESENT: Chairman Keith Kask, Commissioners Joan Budd, Dan Dyb, Ann Lawler, Jeff McKinney and Warren Nelson.

ABSENT: Commissioner TenClay

OTHERS PRESENT: Council Liaison Nancy Middleton, Zoning Coordinator Gus Karpas

Motion by Commissioner Kask, second by Commissioner Lawler, to approve the minutes of June 15, 2004 as submitted. Motion carried 6-0.

Chairman Kask said there was a change in the agenda order, moving the request by John Poage to the top.

VARIANCE – John Poage – 20230 Lakeview Avenue, (R-3, 20,000) request for a variance to encroach ten feet into the required side yard setback and a variance to encroach forty eight feet into the required side yard lake setback for a proposed single family home. A variance request to construct a home on a lot that does not meet the minimum required lot area.

Dr. Poage said he would like to table his variance request so he could explore other options for the property, including potentially donating it to the city for use as a park. He said he would like to work with some other neighbors to create a community park adjacent to Sandy Beach, which would fit into the neighborhood. He would like to see a garden-like park.

Chairman Kask thanked those residents in attendance at the meeting and explained that since the request was to be tabled, no public comment would be taken. He asked about time constraints for action of the original request. Zoning Coordinator Karpas explained the State Statutes and informed the Planning Commission that Dr. Poage has been sent a letter extending the city deadline for action on his request.

ACTION: Motion by Commissioner Kask to table the request for variances at 20320 Lakeview Avenue, at the applicant’s request, for a period not to exceed ninety days. Within the ninety-day period the applicant must modify his proposal, present the proposal as originally submitted or withdraw his request. Commissioner Dyb seconded the motion. The motion carried 6-0. Upon roll call vote Commissioners Budd, Dyb, Kask, Lawler, McKinney and Nelson voted aye. There were no nay votes.

Chairman Kask called for a recess at 7:13 p.m. The meeting was reconvened at 7:18 p.m.

ORDINANCE AMENDMENT – Floodplain – Amend the Zoning Ordinance to create an ordinance to regulate the floodplain.

Tom Lutgen, Minnesota DNR gave an overview of the ordinance. He explained the history of flood plain mapping and its relationship with the Federal Emergency Management Agency and the Nation Flood Insurance Program. He said that under the current system, citizens could obtain flood insurance without their community’s direct participation in the floodplain program. He said this would change beginning September 2^nd, when insurance cannot be obtained unless their community participates in the program. Mr. Lutgen explained that most of the affected area in the City of Deephaven is along the shoreline.

Commissioners discussed various insurance ramifications if the city were not to participate.

Zoning Coordinator Karpas explained that the regulation of the Floodplain is much like the Shoreland ordinance insofar as it uses a specific elevation as a benchmark. He said the floodplain elevation is 930.9 and that the proposed ordinance governs one foot above that elevation. In way of comparison, Karpas said the Shoreland regulations are more restrictive since they requires structure elevations three feet above the Ordinary High Water Level (OHWL), in this case 929.4 on Lake Minnetonka.

Karpas said that the majority of the ordinance is administration and process. He directed the Commission’s attention to Section 1360.09(3) which limits improvements of structures in the floodplain to a value equal to fifty percent of the assessed value over the life span of the structure. He said this is very restrictive and difficult to administer. He said the provision could be removed and that a similar provision limiting improvements to fifty percent of the value over the period of a year can be enforced instead.

Mr. Lutgen explained the rational of Section 1360.09(3) and said it could be removed since the State of Minnesota did not require it, but that the year provision must remain.

Chairman Kask opened the Public Hearing.

Jeannie Bowers, 21600 Fairview Street asked about what elevation between the Floodplain and Shoreland Ordinance would prevail in case of a conflict. Zoning Coordinator Karpas said the most restrictive would apply, in this case the Shoreland Ordinance. He explained that communities can be more restrictive than the State in the application of an ordinance, it just could not be more lenient. Mr. Lutgen agreed.

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

Commissioner McKinney asked about Zone X which encompassed most of the city. Mr. Lutgen said that area is not regulated by the ordinance since it is not in the floodplain.

Commissioner Lawler said she supports the ordinance with the removal of Section 1360.09(3).

Commissioner Dyb asked a number of questions but was most concerned about the delineation of the flood fringe since an elevation is not provided. Mr. Lutgen explained that the flood fringe is typically that area between the OHWL and the floodplain elevation.

Commissioner Budd asked about the variance process. Karpas explained that the process would be the same as any other variance request except that the Department of Natural Resources would comment on the merits of the request.

Commissioner Nelson said he liked the fifty percent provision in Section 1360.09(3). He feels that those properties in the floodplain should be phased out. Karpas reiterated that administration and record keeping would be difficult.

Chairman Kask summarized his thoughts on the ordinance and commented that residents would not be able to obtain flood insurance without the adoption of the ordinance. He supports the ordinance and believes the Section 1360.09(3) should be removed.

ACTION: Motion by Commissioner Nelson to recommend that the City Council adopts the proposed floodplain ordinance as submitted without the removal of Section 1360.06(3). Commissioner Dyb seconded the motion. Chairman Kask asked Commissioner Nelson to consider an amendment to his motion asking the Council to review and consider the impact of Section 1360.09(3). Commissioners Nelson and Dyb amended the motion. The motion carried 6-0. Upon roll call vote Commissioners Budd, Dyb, Kask, Lawler, McKinney and Nelson voted aye. There were no nay votes.

VARIANCE– Arthur Johnsen – 3655 Parkway, (R-3, 20,000) request for a variance to exceed the maximum permitted impervious surface by three percent to construct a new addition.

Arthur Johnsen presented the request. He said the proposed addition is modest but a variance was necessary due to the need for a long driveway. He said the driveway has been reduced in the past but that it couldn’t be further reduced and provide adequate access.

Chairman Kask opened the Public Hearing. Hearing no public comment, the Public Hearing was closed.

Commissioners McKinney and Lawler supported the request.

Commission Dyb commented that the placement of the home and configuration of the lot created a hardship and that he supported the request.

Commissioners Budd and Nelson were supportive of the request, though Nelson had some concerns about drainage off the property.

Chairman Kask said he supported the request and noted the applicant’s past efforts to reduce hardcover on the property.

ACTION: Motion by Commissioner Dyb to recommend that the City Council approve the variance request to exceed the maximum permitted impervious surface by three percent to construct the proposed addition. A hardship exists in relationship of the house and garage on the property, which requires an excessive driveway. The motion is conditioned that drainage be reviewed and approved by the City Engineer. Commissioner Lawler seconded the motion. The motion carried 6-0. Upon roll call vote Commissioners Budd, Dyb, Kask, Lawler, McKinney and Nelson voted aye. There were no nay votes.

VARIANCE– Louis Colson – 3880 Virginia Avenue, (R-3, 20,000) request for a variance to encroach ten feet into the required corner lot, side yard setback to construct a new single family home.

Louis Colson presented the request. He said the proposed structure would reduce the hardcover currently on the property.

Chairman Kask opened the Public Hearing. Zoning Coordinator Karpas directed attention to a letter from Howard Bennis, 18650 Minnetonka Boulevard, who opposes the request.

John Pearson, 3850 Virginia Avenue, feels the proposed house is too large for the neighborhood and that the existing structure is functional.

Cindy Barland, 3875 Monaltrie Avenue, is strongly opposed to the request and is concerned about increased run-off in the neighborhood. She feels the applicant has not demonstrated a hardship and doesn’t intend to live at the property.

Dean Barland, 3875 Monaltrie Avenue, said the whole request is about money and that he would feel differently about the request if the applicant proposed to live in the structure.

Jerry Laughlin, 3865 Monaltrie Avenue, commented that the city has stormwater run-off issues in the neighborhood. He said it is difficult to claim a hardship when the intent is to remove the existing structure from the lot. He feels there are design alternatives available which would not require a variance.

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

Commissioner McKinney sees no reason to grant a variance on a vacant parcel and believes a home can be designed to fit the lot.

Commissioner Lawler does not see a hardship and feels the applicant should show his building pad on the survey.

Commissioner Dyb said the proposed structure looks nice, but that it is not in character with the other homes in the neighborhood. He feels there is ample space to build a home that meets the required setbacks.

Commissioner Budd questioned the fact that the property is a corner lot and was missed during the title search prior to purchase of the property.

Commissioner Nelson feels the structure should meet the required setbacks.

Chairman Kask does not support the request; he feels it should meet the required setback since the applicant is starting with a clean slate. He agrees that the undeveloped right-of-way is an unusual condition but said a hardship cannot be demonstrated if the existing structure is removed.

ACTION: Motion by Commissioner Kask to recommend that the City Council deny the variance request to encroach ten feet into the required corner lot, side yard setback to construct the proposed single family structure. The applicant has not demonstrated an undue hardship and design alternatives exist which would remove the need for a variance. Commissioner McKinney seconded the motion. The motion carried 6-0. Upon roll call vote Commissioners Budd, Dyb, Kask, Lawler, McKinney and Nelson voted aye. There were no nay votes.

VARIANCE– Mark Klesk – 19900 Cottagewood Road, (R-2, 40,000) request for variances to encroach fifteen feet into the required front yard setback, a request to encroach ten feet into the required side yard setback, a request to encroach forty-two feet into the require side (lake) yard setback and a request to encroach thirty-four feet into the required lake yard setback to construct a new single family home.

The applicant is requesting variances to encroach ten feet into the required side yard setback and to encroach sixty feet into the required lake yard setback to construct a new swimming pool.

Paul Vogstrom, Vogue Homes, presented the request. He said the existing structure has issues with water run-off with a down sloping driveway and the tuck under garage. He said the homeowner looked at different remodeling options and decided the best plan was to remove the existing structure and start over. He said a structure could not be placed on the property, which meets the setbacks, and the design tried to match existing conditions on adjacent properties. He said a variance would be needed for the impervious surface and that even though the lot appears large, there are a great deal of wetlands on the property.

Chairman Kask opened the Public Hearing. Hearing no public comment, the Public Hearing was closed.

Commissioner McKinney said he is not totally sold on the request as presented though he understands there will be variances required regardless of what is constructed on the site.

Commissioner Lawler said she does not support the request for the swimming pool. She commented that the building pad on the lot is small. She feels the request comes down to the interpretation of what is reasonable as far as construction on the lot.

Chairman Kask commented that there was a previous request on the property by the former homeowner. He said that one consistent issue on the property is the fact that the lake wraps around the western portion requiring an increased side yard setback.

Commissioner Dyb agreed the west setback presents an issue for development on the property. He does not support the pool request and does not support a request, which requires variances of all required yards for the proposed home.

Commissioner Budd commented that the building pad is difficult for development. She does not support the variance request for the swimming pool.

Commissioner Nelson agrees there is an issue with the west setback and does not support the request for the swimming pool. He commented that the proposed structure would encroach further into the required front yard setback than the existing structure.

Chairman Kask commented he would support a reduced setback on the west portion of the property as long as the required setback is met along the east property line but wouldn’t support a request to encroach further into the front yard setback. He said he does not support the request as presented.

Mark Klesk, 19860 Cottagewood Road, said his intention was to match the continuity of the adjacent structures. He said pushing the structure further from the road would require a greater variance of the lake setback, which he thought would be unreasonable to the city.

Chairman Kask feels there are design alternatives, which would lessen the amount of variances needed to develop the property.

Mr. Vogstrom commented that the whole neighborhood is out of compliance and that the proposed home was not oversized.

Commissioners Budd and Nelson agreed that design alternatives exist. Commissioner Dyb feels the house is too large for the lot. Commissioner McKinney commented that there isn’t a question about whether variances were needed on the lot, but rather, how far is the city willing to go in granting variances.

ACTION: Motion by Commissioner Nelson to recommend that the City Council deny the variance request to encroach fifteen feet into the required front yard setback, the request to encroach ten feet into the required side yard setback, the request to encroach forty-two feet into the required lake-side, side yard setback and the request to encroach thirty-four feet into the required lake yard setback to construct the proposed single family structure. The applicant has not demonstrated an undue hardship and that design alternatives exist which would lessen the severity of variances. Commissioner Lawler seconded the motion. The motion carried 6-0. Upon roll call vote Commissioners Budd, Dyb, Kask, Lawler, McKinney and Nelson voted aye. There were no nay votes.

ACTION: Motion by Commissioner Nelson to recommend that the City Council deny the variance request to encroach ten feet into the required corner lot, side yard setback to construct the proposed single family structure. The applicant has not demonstrated an undue hardship and the property can be put to a reasonable use without the issuance of the variance. Commissioner Dyb seconded the motion. The motion carried 6-0. Upon roll call vote Commissioners Budd, Dyb, Kask, Lawler, McKinney and Nelson voted aye. There were no nay votes.

SUBDIVISION/VARIANCE – Thomas Miller – 19780 Cottagewood Road, (R-2, 40,000) request to subdivide an existing lot into two lots. A variance request of the required lot area to create lots that do not meet the minimum required lot area. A variance request to encroach fifty feet into the required lake yard setback.

John Lang, Messerli & Kramer, presented the request. Mr. Lang said the request was to subdivide the existing property into two buildable lots and variance to create a building pad on the new vacant lot. He said the existing condition of the lot creates a hardship since approximately seventy-five percent of the lot area is classified as wetlands. He said it makes sense to grant the subdivision and variance because the proposed lots match the existing character and conditions in the neighborhood. He said the proposed lots and building pad would not have a negative affect on the adjoining properties.

Mr. Lang said that staff’s contention that the area below the Ordinary High Water Level (OHWL) cannot be counted in the calculation of lot area and hardcover is incorrect. He stated that the city ordinance does not convey that interpretation and in fact references the city wetland map, which shows the wetlands extending beyond the OHWL. Mr. Lang distributed transparency overlays showing the wetland area on the subject lot.

Mr. Lang said the variance request for reduced side and lake yard setbacks would not negatively affect adjoining view and commented that the property could not be put to a reasonable use without the granting of the subdivision and variances.

Chairman Kask opened the Public Hearing. Hearing no public comment, the Public Hearing was closed.

Commissioner McKinney said he was not in favor of granting a subdivision when one of the proposed lots is known to need variances.

Commissioner Lawler agreed.

Commissioner Dyb commented that a similar request was before the city in 1992 and asked if the applicant had reviewed that application. Mr. Lang said he had not. Commissioner Dyb said that he had heard there was a foundation in that area of the property, proposed for development, and that it was sinking. He asked if any soil borings had been done to verify the buildability of the lots. Mr. Lang said the applicant would be willing to do borings but wouldn’t want to bear the expense without an approval.

Zoning Coordinator Karpas discussed his interpretation of the ordinance and directed the Commissioners attention to the letters submitted by the City Attorney and the Department of Natural Resources indicating that the property below the OHWL is owned by the State and cannot be used in the calculation of lot area.

Commissioner Nelson commented that creating a lot which requires variances is asking for problems.

Mr. Lang said that the applicant’s lot area calculations are accurate and that the city ordinance does not define wetland area as only that area above the OHWL.

Chairman Kask said that the previous request was exhaustively reviewed and in the end the decision was based on the fact the property did not meet the requirements of the ordinance. He said it is his understanding that property below the water and the water itself are property of the State and not owned by the property owner. He said the Cottagewood Road area is unique in that the properties are platted into the lake, which is a situation that doesn’t exist elsewhere in the community. He said he was inclined to deny the request because the proposed lots do not meet the minimum dimensional requirements of the ordinance.

Chairman Kask said he is reluctant to reverse a decision by a previous Council when there has been no material change on the property. He feels the property underwent intense scrutiny and the right decision was made at that time.

Commissioner Nelson feels if the property owner does not own the area in the lake, it should not be granted a variance.

Chairman Kask commented that the proposed lot creates a non-conformity that is dependent on variances. He feels it is bad policy to question the actions of the past Council.

Commissioner Dyb said he is not comfortable granting a variance for a piece of property when the buildability of the property is unknown.

Chairman Kask explained that even with a recommendation to deny, the applicant could present the request to the City Council.

ACTION: Motion by Commissioner Kask to recommend the City Council deny the request of Thomas Miller for a two-lot subdivision, a variance of the required lot area and the variance of the required lake and side yard setbacks for Parcel B. The proposed lots do not meet the dimensional requirements of the ordinance and the property, in its current configuration, is being placed to a reasonable use. The circumstances causing the need for the variance are caused by the homeowner. The proposed subdivision uses area below the Ordinary High Water Level in its lot area calculations which is not the intent of the city ordinance. It is noted that a similar request was researched and subsequently denied in 1992 and there has been no material change in the property since that request. Commissioner Dyb seconded the motion. The motion carried 6-0. Upon role call vote Commissioners Budd, Dyb, Kask, Lawler, McKinney and Nelson voted aye. There were no nay votes.

Chairman Kask called for a recess at 9:40 p.m. The meeting was reconvened at 9:45 p.m.

ORDINANCE AMENDMENT – Slopes – Recommendation to the City Council on an ordinance to regulate development in slope and steep slope areas within the city.

Zoning Coordinator Karpas explained the main points of the proposed ordinance. He said development of slopes between eighteen and thirty percent will require an alteration permit approved by the City Council. He said development of slopes over thirty percent is prohibited.

Commissioner Dyb asked if there were a clarification between natural slope and manmade features.

Chairman Kask said the intent of the ordinance is to preserve natural features. He feels that as property becomes more valuable, pressure will be put on the city to develop properties whose development area is questionable. The slope ordinance permits the city to control development.

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

ACTION: Motion by Commissioner Kask to recommend that the City Council approve the proposed slope ordinance. The motion was conditioned that a clarification be made between natural and manmade slopes. Commissioner Dyb seconded the motion. The motion carried 6-0. Upon roll call vote Commissioners Budd, Dyb, Kask, Lawler, McKinney and Nelson voted aye. There were no nay votes.

ORDINANCE AMENDMENT – Showcase – Recommendation to the City Council on an ordinance to regulate the Parade of Homes and similar showcase events.

Zoning Coordinator Karpas described the proposed ordinance. He said the intent was to limit access to showcase homes and to attach conditions to such events.

Commissioners discussed the amount of time that should be permitted for touring and fees which would be necessary for additional police services and parking enforcement. Commissioners discussed the regulation and enforcement of signage.

Chairman Kask opened the public hearing.

Patty Schlesinger, 20560 Linden Road, thanked the Commission for their thought and effort put into the discussion. She does not believe that showcase events should be permitted since they are business ventures that make money for developers. She feels these types of events negatively impact neighborhoods and lead to a loss of privacy to those in the areas containing one of the showcase structures. She said that construction on these structures take place sometimes six days a week to meet deadlines.

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

Chairman Kask said he would support an outright ban on showcase events. Commissioners discussed the effects on neighborhoods and agreed that they did not support such events and would like to see an outright ban on them.

ACTION: Motion by Commissioner Kask to recommend that the City Council direct city staff to draft language prohibiting showcase events in the city. The Commission feels the increase in traffic in affected neighborhoods is detrimental and leads to a loss of privacy and enjoyment of property. Commissioner McKinney seconded the motion. The motion carried 6-0. Upon roll call vote Commissioners Budd, Dyb, Kask, Lawler, McKinney and Nelson voted aye. There were no nay votes.

Motion by Kask to adjourn the meeting. Commissioner McKinney seconded. The motion carried 6-0. The meeting adjourned at 10:25 p.m.

Respectfully submitted,

Gus Karpas

Zoning Coordinator