DEEPHAVEN CITY COUNCIL
MONDAY, NOVEMBER 7, 2005
7:00 P.M.
Page 1
1. CALL TO ORDER: Mayor Anderson called the meeting to order at 7:00 p.m.
PRESENT: Mayor Tom Anderson, Councilmembers Kim Crockett, Keith Kask, Paul Skrede and John Wheaton
STAFF: City Administrator Dana Young and Zoning Coordinator Gus Karpas
ABSENT: Police Chief Virgil Gustafson
Motion by Councilmember Kask to approve the consent agenda, which consists of the minutes of October 17, 2005, verified accounts, the approval of the one-year probation of Officer Bridget Joyce and the approval of the resignation of Kent Carlson from the Planning Commission. He noted that there are payments to Councilmember Skrede of immediate out of pocket expenses to restore data lost due to the crash of the hard drive. Councilmember Skrede informed the Council that the majority of those expenses will be covered by the city’s insurance policy. Councilmember Crockett seconded. Motion carried 5-0.
3. MATTERS FROM THE FLOOR
Mayor Anderson opened the Matters from the Floor portion of the meeting.
Councilmember Skrede
discussed a fund raising event at the
Hearing no further comment, the Matters from the Floor portion of the meeting was closed.
4. PUBLIC HEARINGS
A.
Variance – John Adams and Andrea Nicholson,
John Adams presented the request. He said he was limited in the placement of the porch due to the terrain of the property, which has slopes on the front and rear portions of the property. He noted the house is not centered on the lot and that the only other option for placement would be on the opposite side of the house, off the garage.
Mr. Adams said he and his wife are unable to enjoy their property during the summer months due to the mosquitoes, which are prevalent on adjacent wetlands. He has spoken with his neighbors who are in support of the request.
Zoning Coordinator Karpas said he received a call from one of the neighbors who supported the request subject to limited lighting on the addition.
Councilmember Crockett gave the Planning Commission report. She said the Commission found a hardship in the terrain of the applicant’s property and the location of the existing home on the lot, which prohibits construction in compliance with the zoning ordinance. The approval was conditioned that the structure not exceed sixteen feet in height, as presented to the Planning Commission.
Mayor Anderson opened the public hearing. Hearing no comments, the public hearing was closed.
Councilmember Kask asked if the applicant considered redesigning the screened porch so that it would have an increased width to pull it further off the property line. Mr. Adams said it would then be pushed in front of a bay window off their dining room.
Councilmember Skrede suggested that the terminology on the condition that the screened porch not be enclosed be better defined since he views a screened porch as being enclosed. He suggested that a condition be placed that the screened porch remains screened and not enclosed with permanent walls and serve as a heated space.
Mayor Anderson noted that the area is heavily wooded with lots of space between neighbors. He feels this is an advantage since the porch would be virtually invisible from adjacent properties.
Motion by Councilmember Crockett to approve the variance
request to encroach fifteen feet into the required side yard setback for the
proposed screened porch, as presented, at
B.
Variance – John Ahern,
Paul
Ahern presented the request. He said the
purpose of the request is to provide a covered parking area for his elderly
parents. He said that even though they
spend a majority of the winter in
Mr. Ahern said the carport would be constructed over the existing driveway, limiting the amount of increased impervious surface. He noted the Planning Commission conditioned their recommendation to the Council that the overall percentage of impervious surface not exceed what currently exists on the property. He said that though his parents are willing to comply with this requirement, they would rather maintain the guest parking area on the property.
Councilmember Crockett gave the Planning Commission report. She said the Commission found a hardship in the need for covered parking area for the home. The approval was conditioned that the carport not be enclosed and that hardcover be kept at its existing level.
Councilmember Crockett asked about the appearance of the carport and whether it would accomplish the stated goals since it would be open on three sides. Mr. Ahern said the carport is not the perfect solution, but it would provide a measure of protection. He said that on most days only one car would be parked in the spot and two could be fit under the covering if necessary.
Mayor Anderson said the term carport is misleading since the proposal is more of a canopy structure. Mr. Ahern said the proposal is substantive and a nice design.
Mayor Anderson opened the public hearing. Hearing no comments, the public hearing was closed.
Councilmember Wheaton discussed the future of the property and expressed concern that a future owner of the property would want an enclosed garage. Mr. Ahern said he believes the home would be torn down and replaced with a more sterile home with no character. He noted that the Planning Commission stipulated that the carport remain open on three sides.
Councilmember Wheaton asked whether the applicant intended to remove the tree in the front yard. Mr. Ahern believes the carport could be constructed without losing the tree.
Motion
by Councilmember Kask to approve the variance request to encroach five feet
into the required front yard setback and to exceed the maximum permitted
impervious surface by sixteen percent for the proposed carport, as presented,
at
C.
Variance – Jeff and Doreen Kuzara,
Jeff Kuzara presented the request. He said he didn’t intend to argue a hardship for a swimming pool. He said that a recent survey done as part of this project indicated that the lot area was less than he originally thought. He noted that he has done two major renovations on the property since it was originally purchased in 1993, both reducing the hardcover on the property.
He said that even with the pool, the overall hardcover on the property would be less than what existed when he purchased the property. Mr. Kuzara discussed the filter system for the pool, which eliminates the need to completely drain the swimming pool at the end of the season.
Councilmember Crockett asked how the hardcover had been reduced. Mr. Kuzara explained that a detached garage and long driveway were removed from the property.
Councilmember Wheaton asked about the cover for the pool, when not in use, and whether it allowed water to filter through it. Mr. Kuzara said he believed water was allowed to pass through the cover.
Councilmember Crockett gave the Planning Commission report. She said the Commission did not find a hardship or practical difficulty in the request but felt that the proposed pool complied with the required setbacks and would not have an affect on drainage and that it should be approved. The approval was conditioned that the overall calculation of impervious surface on the property not exceed thirty percent.
Mayor Anderson opened the public hearing. Hearing no comments, the public hearing was closed.
Councilmember Wheaton discussed the ordinance requirements and noted that pools are counted as hardcover. He questioned whether the ordinance needed to be changed or if an exception could be made in this case. Mr. Kuzara commented that he did research on the issue and that only Orono gave a reduced impervious surface percentage for swimming pools.
Councilmember Kask questioned whether a hardship could be argued for a swimming pool. He asked were it would stop since the proposed use is an accessory recreational use. Would the Council then make exceptions for items such as sports courts? He noted that even though the proposed increase in impervious surface is minimal, the ordinance still limits the percentage to twenty-five percent and includes swimming pools. He said he is uncomfortable granting a variance for a swimming pool.
Councilmember Crockett questioned whether the city needed to research other communities’ ordinances to see how they address swimming pools and review potential drainage issues.
Mayor Anderson noted that not all cities are as restrictive as Deephaven when it comes to hardcover. He said a lot of ordinances relating to shoreland management were adopted at a time when the lake had pollution problems. He said that Deephaven has been more aggressive than most communities in regulating properties within the Shoreland District.
Councilmember Wheaton agreed with Mayor Anderson in principle but is concerned about consistency and setting precedence. He commented on the hardship standards and questioned if they needed to be changed, at least when applied to accessory uses such as this. He feels that would be a bad precedence and that hardship needs to be shown for accessory structures.
Councilmember Kask said requests are clearer when they relate to setbacks, since setbacks act as a security blanket for adjacent properties. He said he was on the Planning Commission when the hardcover standards were adopted and admitted there was no real reason why twenty-five percent was chosen.
Councilmember Crockett commented that the Council has approved variances for hardcover in the past when the percentage remained unchanged. She said that amount of hardcover on this property would still be less than what existed when the applicant purchased it.
Councilmember Skrede said that if the applicant approached the Council for an addition, he would feel differently. He’s concerned about incremental increases over time on properties.
Councilmember Wheaton agrees the request is reasonable, but said the code limits the amount of impervious surface on a property. He thinks this is a precedent setting request where recreational uses would be seen as being allowed to exceed impervious surface standards.
Motion by Councilmember Kask to deny the variance request
to exceed the maximum permitted impervious surface by five percent for the
proposed swimming pool, as presented, at
Councilmember Wheaton noted that in situations like this where there is some gray area, he tends to tip towards the homeowner and their desire to improve and use their property.
Motion
by Councilmember Crockett to approve the variance request to exceed the maximum
permitted impervious surface by five percent for the proposed swimming pool, as
presented, at
D.
Variance/Accessory Structure Size Permit –
Robert Bosclair,
The applicant is also requesting to relocate his driveway so that it would cross a one hundred foot city owned park.
Councilmember Skrede noted there had been an ordinance change in 2002 and not updated in the code book which allows for an increase in accessory structure height up to fifteen feet, meaning the applicant was not in need of a variance for the proposed height of his accessory structure.
Bob Bosclair, presented the request. He would like to replace the existing detached garage because it is beginning to deteriorate and is not suitable for storage. He said the existing home does not have a basement. Part of the proposed structure will serve as a storm shelter.
Councilmember Crockett gave the Planning Commission report. She said the Commission recommended approval to exceed the maximum accessory structure area, but recommended denial to exceed the maximum accessory structure height because the applicant did not demonstrate an undue hardship and design alternatives were available that would allow the applicant to comply with the city code. In addition, the Planning Commission recommended denial for the relocation of the driveway across the city parkland. They determined that the applicant did not demonstrate an undue hardship, which outweighs the benefits the property provides to the community.
Zoning Coordinator Karpas explained that the request to exceed the maximum permitted accessory structure size is a special use request and not a variance so a hardship did not need to be demonstrated by the applicant.
Mayor Anderson asked about the need for the proposed driveway. Mr. Bosclair said there was a medical emergency on the property and the ambulance had difficulty accessing the property. He’s concerned that larger emergency vehicles won’t be able to access the property in the future.
Councilmember Wheaton said he noted the concerned raised by the public at the Planning Commission and comments made by the Park Committee at their last meeting. He said he has seen great opposition, yet no indication from the Fire Chief that there are issues accessing the property.
Mayor Anderson opened the public hearing. Zoning Coordinator Karpas indicated he received a call from Dyke Williams to reiterate his opposition to the project. Councilmember Crockett noted there were a number of citizens at the Planning Commission meeting voicing their opposition to the driveway.
Hearing no further comments, the public hearing was closed.
Councilmember Skrede commented that past plans for the Main Beach included tennis courts in the area of the proposed driveway and that they were never placed their due to water filling that area at different times of the year.
Skrede said that in most cases, the police department would be the first responders to an emergency at the property and that they have the authority to permit emergency vehicles to cross the park land to access the property. He noted that crossing the park would require the applicant to purchase an easement. He said he is supportive of the proposed structure but believes there are other alternatives for the proposed driveway.
Mayor Anderson asked how many stalls were currently attached to the home. Mr. Bosclair said there are two stalls on the house and two on the existing detached garage and that there would be a total of five with the new structure. Mayor Anderson commented that there are few properties with five garage stalls in the city. Mr. Bosclair pointed out that two of the five stalls would be used primarily for storage and that the other three would be for the family vehicles.
Councilmember Crockett verified there is no enclosed storage in the principle structure. Lori Bosclair said there is approximately one hundred square feet tucked under a stairway. Mr. Bosclair noted that most of the area over one thousand square feet was for the proposed storm shelter.
Councilmember Kask said he is not supportive of exceeding the maximum square footage. He said there are other configurations possible to lessen the size while accomplishing the needs of the applicants. He feels the storage space and shelter can be done within the requirements of the ordinance.
Councilmember Skrede said there are other homes in the city with five or more garage stalls. He said there is a berm on the street side of the property, which lessens the impact of the size of the garage. He feels the request is an attractive alternative for the property to meet the needs of the applicants.
Councilmember Crockett asked if other design alternative were considered to comply with the ordinance. Michael Kloti, the applicant’s architect, said the plan follows the shape of the driveway and is the most aesthetically pleasing.
Mayor Anderson agreed the applicant could achieve their goal without exceeding the maximum square footage. He feels there may be some wasted space in the structure.
Councilmember Wheaton supports the larger structure since there is no hardship standard needed, but feels there are design alternatives available to the applicant.
Motion
by Councilmember Skrede to approve the special use request to construct an
accessory structure that would exceed the maximum permitted accessory structure
area by one hundred ninety-seven square feet.
There is a demonstrated need for a storm shelter and additional storage
for the property. Councilmember Crockett
seconded. Motion carried 3-2. Upon roll call vote on the motion to approve
Councilmembers Anderson, Crockett and Skrede vote aye. Councilmembers Kask and
Motion by Councilmember Crockett to deny the request to relocate the property’s driveway to the north, crossing one hundred foot of city parkland. There are design alternatives to soften the curves on the existing driveway and the police, as first responders, have the authority to grant access across park land if necessary. Councilmember Kask seconded. Motion carried 5-0.
E.
Resolution 13-37, An Ordinance Regulating
City Administrator Dana Young briefed the Council on the ordinance and noted the Planning Commission asked the Council to reconsider limiting the location to city owned property and asked that language regarding escrow be removed.
Councilmember Skrede said the reason to limit the location to city property is two-fold. It keeps individual residents from competing with each other to locate the monopole on their property and it would create a revenue stream, which benefits the entire city. He agrees that the escrow language should be removed and reserved for the specific lease agreement. He also felt Section 1311.09, regulating dish antennas should be removed.
Councilmember Kask said he would keep the language limiting dish antennas because there is no guarantee that they won’t come back into favor in the future. He agrees with Councilmember Skrede that limiting location to city owned property benefits the entire city and allows for greater control.
Councilmember Wheaton said he understood the Planning Commission’s point and would be supportive of allowing alternate sites with a variance. City Administrator Young said there is no provision in the ordinance, which allows for a variance at this time and the ordinance would require an amendment if the issue came up in the future. Councilmembers agreed no to include a variance procedure at this time.
Mayor Anderson discussed Section 1311.02(d) and the concept of collocation. He said not only should it be encouraged, but that language should be added permitting the city to receive a portion of the lease payment paid to the owner of the tower.
Councilmember Skrede said it is the right of the city to seek compensation from collocator’s, but it’s a question of whether that language is in the ordinance or the lease agreement.
Councilmember Crockett asked if the existing language states the city’s intent to seek a portion of a collocator’s lease payment. The Council discussed language to be included to clarify the city’s attempt to recoup a portion of all lease payments.
Councilmember Skrede said it’s important to encourage collocation rather than allowing for multiple towers in the city. He feels the language should be such as to require proof that collocation would not work prior to a request for a new tower.
Councilmember Crockett gave the Planning Commission report. She said the Commission recommended the Council approve Resolution 13-37 regulating wireless communications towers. They felt the ordinance is necessary to be in compliance with the Federal Communications Act. The Commission further recommended that consideration be given on removal of the escrow language in Section 1311.06(2) and that the ordinance have a provision, which does not wholly exempt non-city owned properties from consideration.
Mayor Anderson opened the public hearing. Hearing no further public comment, the public hearing was closed.
City Administrator Young said the ordinance currently has language going into detail on collocation. Councilmember Crockett said the language should require collocation.
Councilmember Kask asked if a one hundred foot height would be suitable for the needed signal strength. Mayor Anderson said it has been represented to the Council that one hundred foot would be acceptable. Councilmember Skrede noted that the one hundred foot height is an arbitrary benchmark that may change based on site conditions.
Liz Von Zomeren, site acquisition specialist working for Nextel Communication, clarified that in most cases, based on the range needed, that one hundred foot would be sufficient. She noted that the bottom of the antenna array would need to be above the adjacent trees. She said the height on Site Twelve would need to be higher due to vegetation than would a site on the City Hall campus.
Councilmember Skrede commented that the needed range is only about five miles. Ms. Van Zomeren said that Nextel only needs to fill the gap between substations.
Councilmember Skrede said that Site Twelve initially peaked the city’s interest based on comments by Ms. Von Zomeren that funds may be available to develop the site into a usable park. Ms. Von Zomeren said that the available funds vary based on regional managers and in this case she is on her third manager since this process began.
She said that it’s Nextel’s expectation that no more than one hundred and fifty thousand should go into a site, including grade work and installation of the tower. She said that Site Twelve poses a problem because of the large distribution lines along the road.
Councilmember Crockett asked if a variance provision needed to be added in the event a tower would need to exceed one hundred feet. Administrator Young said he would add the necessary language.
Councilmember Crockett asked what the objections were to regulating satellite dishes. Councilmember Skrede said it was too much governmental regulation. Councilmember Kask suggested that the regulation language be kept to regulate large dishes and not the smaller ones.
Mayor Anderson commented that three square feet is not a large area. Administrator Young said it is not uncommon to address dish antennas in the same ordinance regulating wireless communication towers. He said the language could be removed and re-inserted later if necessary. Mayor Anderson suggested removing Section 1311.09 regulating satellite dishes.
Councilmember Crockett asked if the language was strong enough to require removal of abandoned towers. Ms. Von Zomeren said specific language on tower removal is included in the lease agreement. Administrator Young said the usual process would be to remove the tower and assess the property owner, which is difficult on city property.
Councilmember Skrede said he has been referred a name for legal counsel who can help the city through these issues when the lease is being drawn up. Mr. Skrede gave a recap of the changes to the ordinance.
Administrator Young said the changes would be made for the second reading at the November 21st meeting.
5. UNFINISHED BUSINESS
A. Present Ordinance No. 5-29, Amending Public Nuisances
Councilmember Skrede said he was in support of the proposed amendments to subdivision (a) and (b) of Section 535.01 and subdivision (c) of Section 535.04. He said he would like to amend subdivision (cc) of Section 535.04 to include the use of emergency generators during power outages and similar emergencies.
Commissioner Wheaton asked if a time limit should be imposed on the hours a generator could be run. Skrede said there are people in the community who have a need, such as keeping medicine cold, to run their generators around the clock.
Councilmember Crockett feels there should be a time limit placed on the hours of operation for generators. She said that when the power is out in her neighborhood, all you can hear are a couple of generators. She feels this imposes on others who don’t have generators and need their windows open to keep cool.
The Council discussed the noise issue with generator and similar uses and the rights of others in the neighborhood to expect quiet. Mayor Anderson supported a regulation limiting the use of generators between the hours of midnight and five a.m. Councilmember Skrede disagreed and noted that a number of people have sump pumps that need to be operational. He said he wouldn’t be so concerned if the city had a power company more receptive to the needs of the community.
Mayor Anderson polled the Council on their opinion of regulating the time a generator could be operated. A majority of the Council agreed that no restriction should be placed on the operation of generators.
Councilmember Skrede said subdivision (dd) of Section 535.04 should be deleted with the understanding that a similar provision will be included in a Stormwater Management ordinance that will be adopted by the city. Councilmember Kask supports removing the provision as long as it is included in the Stormwater Management Ordinance.
Councilmember Crockett commented that one issue she has with that provision is that it does not take into account properties which have never had ground coverage and questioned how the two hundred and forty day regulation is going to be enforced.
Mayor Anderson said he didn’t think a specific number of vehicles should be included in subdivision (bb) of Section 535.04. He feels the number should be dictated by the ability to park vehicles on paved areas intended for parking. He does not support allowing residents to park vehicles in their yard.
Councilmember Wheaton said, though he agreed, he recalled that those in attendance of the Town Hall meeting wanted less regulation by government on their private property.
Councilmember
Crockett commented that subdivision (aa) of Section 535.04, regulating the
parking of RV’s and semi trailers was drafted to preserve the residential
character of the community. She said
larger RV’s become structure like in their appearance to adjacent
properties. Mayor
Councilmember Skrede said he looked to regulate the unnecessary accumulation of cars when the amendment process started. He said some of the proposed changes would only apply to two or three properties. He believes it is irresponsible to draft law with such limited scope.
Councilmember Crockett said Mr. Skrede’s views would change if his neighbor were one of the violators. Mr. Skrede said his neighbor was one of the violators and that the property has started to come into compliance with the proposed ordinance without the ordinance being in place. He feels the city is over regulating. He questioned the necessity of the ordinance amendments.
Councilmember Wheaton said it would be nice to hear from those who support the proposed changes. He said most of the feedback he’s received is from people who don’t want some of the more restrictive changes. He doesn’t believe the city should be regulating eyesores. He feels the job of the Council is to protect the public’s safety.
Councilmember Skrede said there’s a difference between a casual complaint and a legitimate neighborhood issue. He doesn’t want the Council to make a knee jerk reaction based on casual complaints.
Councilmember Crockett said she’s received numerous complaints and that she’s disappointed in the showing of those residents who support the changes. She feels it is the city’s obligation to define what is and is not an issue. It shouldn’t be left up to the neighbors to fend for themselves since there is only so much they can do without the city.
Councilmember Wheaton questioned government’s role in solving neighborhood problems. Ms. Crockett said that if government doesn’t do it and define minimum standards, the neighbors are left to address the issues. She feels some of the violating properties negatively affect the values of adjacent properties.
Mayor Anderson said he does not want to infringe on people’s use of their property as long as it is done orderly. He noted that a couple of issues have risen when the city has not had the authority to address them. He said changes in the ordinance are not necessarily based on individual problems, rather it’s granting the city the authority to address issues when they do become a problem.
Councilmember Wheaton asked why problems couldn’t be addressed as they are brought to the city’s attention. Mayor Anderson gave an example of a problem property, which has been an issue for a number of years. He said, until recently, the city could not remedy the issues because we didn’t have the authority. He does believe, however, that the city could adopt ordinances which are too restrictive.
Councilmember Crockett reminded the Council that review of the nuisance ordinance was not based on complaints, rather a goal set by the Council a number of years ago. She noted that two changes have been made thus far which have allowed the city to address a number of potential violations.
Councilmember Wheaton said there are always loopholes. Ms. Crockett said that’s why she specifically wants to regulate semi trailers because she does not want to see them or any other commercial type vehicle in the community.
Councilmember Skrede believes the city has addressed what it needed to in the nuisance ordinance and should now move on to other sections of the city code.
Mayor Anderson said he is not supportive of any of the proposed definitions for (aa). He feels the Council should act on what it already agrees with and seek public input on items such as RV’s and boats. He feels it’s important to include people who actually own RV’s and boats in the discussion on how to regulate them.
Councilmember Crockett agrees that she doesn’t like the specific language for the proposed regulations contained in (aa), but feels strongly that the Council should regulate semi trailers, commercial vehicles and school buses. She noted that other communities such as North Branch regulate such storage so it’s not unreasonable for a city like Deephaven to do so.
Councilmember Skrede disagrees and is willing to support the issues already agreed on by the Council.
Motion by Councilmember Skrede to adopt the proposed changes of the nuisance ordinance to include the adoption of subdivisions (a) and (b) of Section 535.01 and subdivision (c) of Section 535.04. The motion includes an amendment of subdivision (cc) of Section 535.04 to include the use of emergency generators during power outages and similar emergencies and the removal of subdivision (dd) of Section 535.04 since it will be included in the city’s Stormwater Management Ordinance. Councilmember Crockett seconded. Motion carried 5-0.
Councilmember Wheaton commented that there might be other issues when it comes to nuisance control, but he is willing to maintain status quo until the citizens voice their concerns.
Mayor Anderson encouraged RV and boat owners to submit their ideas on how to fairly regulate storage of those vehicles.
B. Other Business
David
and Sharon Garber,
The
Council directed the City Administrator to have the police department remove
all signs located in the public right-of-way.
6. REPORTS FROM BOARDS, COMMITTEES AND
DEPARTMENTS
A. Public Safety
Police Chief Gustafson was not in attendance. City Administrator Young summarized the report submitted for the Council’s review.
B. Public Works Committee
City Administrator Young discussed the monthly report of activities. He said the Summer and Fall activities are winding down as we head into the Winter months.
C. Administration
City Administrator Young informed the Council that Deephaven ranked in the top four percent of communities for the lowest tax rate. He said the Council would begin reviewing the Capital Improvement Plan, which will run from 2006 through 2014. He said he would begin performance reviews in December for city staff.
ADJOURNMENT
Motion by Councilmember Kask to adjourn the meeting. Councilmember Wheaton seconded. The meeting adjourned at 10:05 p.m.
Respectively submitted,
Gus Karpas
Zoning Coordinator