DEEPHAVEN CITY COUNCIL
MONDAY, JUNE 5, 2006
7:00 P.M.
Page 1
1. CALL TO ORDER: Mayor Anderson called the meeting to order at 7:00 p.m.
PRESENT: Councilmembers Mayor Tom Anderson, Kim Crockett, Keith Kask, Paul Skrede and John Wheaton
STAFF: City Administrator Dana Young, Police Chief Virgil Gustafson and Zoning Coordinator Gus Karpas
Motion by Councilmember Skrede to approve the consent agenda, consisting of the minutes of May 15th, the verified accounts, the SafeAssure Contract and a $1,200 July 4th contribution to the South Lake/Excelsior Chamber of Commerce. Councilmember Crockett seconded. Motion carried 5-0.
3. MATTERS FROM THE FLOOR
Mayor Anderson opened the Matters from the Floor portion of the meeting. Hearing no comment, the Matters from the Floor portion of the meeting was closed.
4. PUBLIC
HEARINGS
a)
VARIANCE
– Mark and Lisa Erhard,
variance request to build a new home on an existing non-conforming footprint located within the required east and west side yard setbacks and the required lake yard setback. A variance to exceed the maximum permitted impervious surface.
The requested setback variances are for fourteen feet, ten inches of the required twenty-five foot east side yard setback, for fifteen feet, six inches of the required twenty-five foot west side yard setback and twelve feet, six inches of the required one hundred foot lake yard setback.
The requested impervious
surface variance is to exceed the maximum permitted impervious surface area of
25% by 12.7%.
Lisa and Mark Erhard introduced themselves to the Council. Ms. Erhard gave a brief history of their acquisition of the property and there tenure in the community. She said that their family has grown with the addition of four children in five years. She said the home is very unconvential in that it contains a lot of square footage, but appears that it was constructed for “empty nesters” since there are a minimal amount of bedrooms. She noted that the home does not have a basement nor a second floor.
Ms. Erhard said that they have worked for over four years with city staff to develop a plan which would comply as much as possible with the ordinances. She said her neighbors are in support of the plan and that they wouldn’t even pursue the request if they were not. She hopes that the Council supports their request.
Mark Erhard said he and his wife love the community and want to build in a manner which keeps the character of the community. He said that steps have been taken to make it fit in.
Mayor Anderson drew the Council’s attention to the letter submitted by the Erhard’s attorney regarding his interpretation of State Statute 462.357.
Councilmember Crockett gave the Planning Commission report. She said the Commission recommended, by a 4-1 vote, that the request be approved. They felt there was a practical difficulty in the size and shape of the lot and the placement of the home on the lot which limited options for redevelopment. She said Chairman Dyb noted that the action was in keeping with the State Statutes as they pertain to redevelopment of non-conforming structures. There were no conditions placed on the approval.
Mayor Anderson asked if there was anyone from the who would like to comment on the request.
Mike Sharrett, Sharrett Design, told the Council that he was the Erhard’s architect and that he wanted to share some of the goals of the project. He said he hoped it was a rarity in the community to lose a structure of this magnitude due to mold and it’s delapitating effect.
Mr. Sharrett said the plan was to remove the home and essentially place a new structure in the old footprint. He said minor changes have been made in that the footprint would be smaller, bringing it into compliance with the city codes and that the east, west and side yard setbacks were increased, lessening the encroachment. He said the impervious surface area would remain unchanged.
Mr. Sharrett said a portion of habitibal space would be removed on the main level to accommodate a larger garage. He said the space would be replaced on the proposed second story which complies with the required setbacks. He said the floor plan is more efficient than what currently exists. He believes a hardship is present in that the lot is long and narrow.
Mr. Sharrett said there is a need to accommodate the Erhard’s growing family through the creation of functional living space, which has been done with a smaller footprint.
Lou Cosentino,
Hearing no further public comment, the public hearing was closed.
Councilmember Skrede asked Mr. Cosentino about his experience with mold remediation. Mr. Cosentino said he had an issue where his windows rotted out and that it has taken about eight months to repair the damage to the drywall and insulation. Skrede asked if it was due to the water table. Mr. Cosentino said it was due to the flashing around the windows which allowed water to infiltrate into the walls.
Mayor Anderson asked about the
construction of the foundation. Mr.
Sharrett said it would be a poured concrete foundation.
Mayor Anderson noted that in the past when a request was to construct on the existing footprint that it was viewed as a remodel rather than new construction. He said this project improves the existing setbacks.
Councilmember Skrede thought that if a structure was totally torn down it was considered new construction and that steps could be taken to bring them into compliance. He asked staff about the State Statute and questioned if it were a new Statute.
Zoning Coordinator Karpas said the Statute in question was passed in June of 2004 and gave property owners the right to rebuild nonconforming structures in substantially the same footprint and with substantially the same height. Councilmember Crockett said the legislation allows applicants to completely replace a nonconforming home.
Councilmember Skrede asked if there had to be mitigating circumstances. Councilmember Crockett said none were required in the Statute.
Councilmember Kask noted that the Statute did not permit expansion. He asked how this would affect the Council in granting second story additions. He cautioned the Council about granting variances that would expand or extend a non-conformity since it would continue until the Statute language is changed.
Mayor Anderson said that in this request, it was the footprint that was in variance, not the second story. If the Council were to approve the request it would be based on the footprint only and not the second story since it complies with the setbacks.
Councilmember Crockett feels the record should be clear that any action taken was on the footprint and not the second story since it is not covered under the Statute.
Councilmember Skrede agreed. He said he is in favor of the request, he would just like the second story addressed in the motion to include language that it is not covered under the State Statute. The second story is not germaine to the Statute.
ACTION: Motion by Councilmember Crockett to approve
the variance request to encroach fourteen feet, ten inches into the required
twenty-five foot east side yard setback, for fifteen feet, six inches of the required
twenty-five foot west side yard setback, twelve feet, six inches into the
required one hundred foot lake yard setback and to exceed the maximum permitted
impervious surface by 12.7% for the proposed single family home at 20660
Linwood Road, per the Planning Commission and City Staff recommendation. A practical difficulty exists in the size and
shape of the lot and the placement of the existing home on the property. It was noted that the motion for approval
was for the foundation and first floor in compliance with the provisions of
State Statute 462.357. It was further
noted that the proposed second floor was not covered under the motion since it
would comply with city setback requirements and did not require Council
approval. Councilmember Wheaton seconded
the motion. The motion carried 5-0. On a motion to approve, Councilmembers
Anderson, Crockett, Kask, Skrede and
b)
VARIANCE
– 10 Spring Homes,
request to build a new single family home located within the required rear and lake yard setbacks.
The requested setback variances
are for five feet, seven inches of the required twenty-five foot rear yard
setback and seventeen feet, five inches of the required seventy-five foot lake
yard setback.
Scott Rosenlund, 10 Spring Homes, presented the request. He said they would like to construct a home that would encroach into the require rear and lake yard setbacks. He noted that the property is adjacent to a huge wetland and that the nearest open water was approximately three hundred feet away. He said
Charles Coombs, Design Group C, said the intent was to design a home that was quaint and fit into the character of the city do to its visible exposure on the hill. He said there was the option to create a contemparary looking home, be he didn’t feel that would fit in that space. He said that adjustments could have been made to the home to create only a two-stall garage, but that would not have changed the starting point of the home due to the configuration of the building pad.
Mr. Coombs noted that enroachment was angular, lessening the mass of the encroachment. He feels the proposal is the appropriate design for the property.
Councilmember
Crockett gave the Planning Commission report.
She said the Planning Commission recommended, on a 4-1 vote, that the
City Council deny the request. They felt
that the
Mayor Anderson asked if there was anyone from the public who would like to comment on the request. Hearing no public comment, the public hearing was closed.
Mayor
Anderson asked if the proposed setback was from the edge of the easement or
from the edge of the trail itself.
Zoning Coordinator Karpas said it was measured from the property line
which is located at the edge of the easement.
Councilmember Kask discussed the hardship standards required for variance requests. He said he is supportive of the request based on the visibility of the property. He noted that the most troublesome encroachment was along the north side property line, but said that the nature of the property was such as it was elevated from the trail, so the encroachment would not be noticiable. He feels the proposed encroachments are consistent with other properties along the back bay in that there is a vast distance of wetlands before you hit open water, lessening the visual impact from the lake.
Kask said the properties were platted to include these vast expanses of wetlands, which essentially are unbuildable, and then held to a lake setback standard which, in this case, is not entirely beneficial to this property. He feels the Council should encourage the placement of a house design that fits the character of the community and believes what has been presented fits that test.
Councilmember Wheaton likes the design but is still concerned about the lake encroachment. He wondered if others on the Council would like to see it pushed further from the lake. He understands that it could not be brought into compliance, but he would like to hear their opinions.
Mayor Anderson noted that in order to push the structure back, it would be moved closer to the large power lines directly adjacent to the property.
Councilmember Crockett said she would change the location of the proposed structure. She noted that the wetland areas that dominate the property would provide plenty of filtration of the run-off. She thinks it is a wonderful proposal.
Councilmember Skrede said he understands the dilemma faced by back bay residents. He believes there are other unique circumstances in regard to this property in that it is bordered on two sides by government owned property. In addition, there is over three hundred feet of cattails to the northeast.
Skrede discussed current issues with docking and the idea floated by the Lake Minnetonka Conservation District (LMCD) to create neighborhood docking. He said he hopes the applicant would discuss this situation with any potential homeowners. Mr. Rosenlund said he would and that he supports the idea.
ACTION: Motion by Councilmember Kask to approve the
variance request to encroach five feet, seven inches into the required twenty-five
foot rear side yard setback and seventeen feet, five inches into the required
seventy-five foot lake yard setback for the proposed single family home at
5. UNFINISHED BUSINESS
A.
Review
Ordinances on
Zoning
Coordinator Karpas said he has provided copies of ordinances from neighboring
communities on how they regulate the size and placement of accessory structures
and swimming pools. He said it appears
the City of
Karpas said the only unique characteristic was Deephaven’s permitance of a special use permit to exceed the maximum area of an accessory structure and the reduction in the required setback.
Councilmember Skrede said he noted a couple of items such as most of the cities clearly stated that they measured their setback from the water’s edge for swimming pools, that some cities were more leneint in terms of permitted area of accessory structures and that the cities varied in the determination and permitted height of accessory structures.
Mayor Anderson commented there is a way to circumvent the city’s ordinance in terms of area and height by allowing attachment to the principle structure. He believes there should be a way to define what constitutes a connection, by limiting its length. Skrede commented that the current ordinance requires the narrowest point of a principle structure, by code, is twenty-five feet and that the connections currently being done by homeowners are non-compliant under the literal interpretation of the code.
Zoning Coordinator Karpas said under the literal interpretation of the code you would eliminate the ability for any architectural aspects such as bump outs or bay windows.
Councilmember Crockett asked what the goal of the Council was, what are we trying to accomplish. Mayor Anderson said to better define the differation between attached accessory structures and those begin constructed in a manner to circumvent the ordinance requirements. Crockett asked if it was an issue of massing.
Councilmember Skrede said it’s a question of function. He said if a seven hundred square foot garage is attached, by a narrow walkway, to the principle structure, under the current ordinance the property still qualifies for seven hundred square foot of accessory structures. The current ordinance lends itself to permitting a lot of construction on minimum sized lots.
Councilmember Crockett feels that is the issue we should focus on since she gets the feeling a lot of neighbors are beginning to feel compressed. Councilmember Skreded said the Council has to set fair definitions and rules and require everyone to play within those rules.
Zoning Coordinator Karpas said the first step could be removing the special use provision which permitted a greater sized accessory structure area and a reduced setback for accessory structures. The second would be to draft specific language defining what a connection would have to be to include what was an accessory structure as part of the principle structure. He said these first two steps could be brought before the Planning Commission in July and the Council could take action in August.
Councilmember Skrede agrees with course of action but feels that staff should have the ability in the interim to bring items in front of the Council that are ambigious and may be adverse to the changes considered for the ordinance.
Councilmember Crockett asked about the history of the ordinance as it pertains to the special use provisions proposed for deletion. Councilmember Kask said that it was never his intent to apply those standards to anything more than a garden shed type structure. Somehow the intent of the ordinance morphed to include larger structures and swimming pools. He surmized that it was done to lessen the burden on the Council for variance requests.
Councilmember Skrede thought a fresh approach would be to get citizen involvement in drafting a new ordinance rather than cutting and pasting ordinances currently in place in neighboring communities.
Carrie
Bell,
Councilmember Wheaton said he would not be in favor of banning swimming pools. Ms. Bell said she was not either, but that she would like to see stricter regulations on them.
Mayor Anderson asked if any consideration has been given to establishing a homeowner’s association. Councilmember Skrede said that idea may be unrealistic, especially over a stick situation like what is currently going on in Cottagewood. In order for the establishment of a homeowner’s association, all residents would have to agree, and that most likely would not happen.
Councilmember Skrede feels the city should look at special requirements when it comes to swimming pools, such as increase setbacks.
Mayor Anderson said he does not want to get into a situation where the city is creating ordinances which legislate neighborhood to neighborhood. When ordinances are drafted, it is with the whole city in mind. The Council cannot get down to the level of neighborhood details.
Councilmember Skrede reiterated that setbacks could be a useful tool and can help push pools further from property lines and drip lines of trees. Mayor Anderson said the Council has to be really careful in establishing setbacks because changes may have unintended consequences.
Ms. Bell said the current regulations allow people to push items such as pools to the furthest point of their property, away from their principle structure. This pushes all the commotion and noise away from them and puts it on their neighbors. She believes that neighboring property rights should be taken into consideration.
Mayor Anderson said that there are many things that infringe of neighbors. He used the examples of a trampoline and basketball court. Even then, it’s hard to know what is considered an annoyance and what isn’t based on the neighbor. The city needs to be careful in defining lifestyles for its property owners.
Barbara
Jean Brandt,
Councilmember Crockett said she has two points she would like to make. The first is that pool technology has come a long way in a short time. There are now pools that don’t require backwashing which addressing issues of drainage. The need to store pool equipment and the types of pool equipment has been minimized, removing the need for separate pool houses. She feels it would be beneficial to the Council to have someone in the industry present the latest technologies which could help formulate the specifics of the city’s regulations.
Councilmember Crocketts second point is that, even though she believes Ms. Bell’s tree is wonderful, she will never support a tree over the property rights of a homeowner. She does not want base what a property owner can do under the law on the “rights” of a tree, since trees do not have rights, property owners do.
Ms. Brandt noted the absence of a tree preservation ordinance in the city. Councilmember Crockett said the idea was discussed and it was determined that most Deephaven residents support trees and keep them in mind as they develop their property. There are remedies under the law that property owners may take if they feel uneccessary damage has been done to trees on their property based on the actions of their neighbors.
Pam
Schechtman,
Councilmember Wheaton said his thoughts are based on the community as a whole and not just Cottagewood. He believes the city needs to clearly address the safety issues related to pools, the location of pools on the property in relation to adjacent properties and the screening aspects for pools. He noted that most pools in Deephaven are well screened and situated in a way that they are not visible. He is opposed to a fencing requirement because he feels it does not increase the safety aspect. He would rather see a natural screening requirement.
Councilmember Wheaton said the city could require an impact statement submitted by an arborist to address potential environmental impacts. He believes the setbacks should be similar to the current requirements for principle structures and restrictions on the location, such as, requiring pools to be placed behind the front wall of the principle structure.
In
addition,
The Council discussed how the current nuisance ordinance addressed the issue of noise. Police Chief Gustafson said it wasn’t common to address noise complaints, outside of construction, during the day.
Zoning Coordinator Karpas discussed the potential for requiring a special use permit for all pools as a way to insure the items discussed were addressed prior to the placement of a pool.
Councilmember Kask said that even though he is sensitive to the unique qualities of pools and sports courts, he would not support a special use permit requirement. He said when considering the regulation of accessory structures, those items that cause an intensity in the use of the property should be confined to an area in the center of the property rather than closer to the adjacent properties.
Councilmember Crockett suggested that pool regulation would be a good subject for the next Town Hall Meeting. The Council discussed the idea and agreed that the regulation of swimming pools would be discussed in late July to allow for the Planning Commission to develop a framework to guide the discussion.
6.
NEW
BUSINESS
A.
Approve
Parking Permits for Yacht Club Regatta on July 26-29
Wendy Bennis, representing the Yacht Club,
B.
Review 2007
Budget Schedule
7.
REPORTS
FROM BOARDS, COMMITTEES AND DEPARTMENTS
A. Public Safety
Police
Chief Gustafson provided the Council with an update on the annual bike trip
with the second graders from
B. Excelsior Fire District
Councilmember Skrede said a seventy page spec book for the new pumper truck will soon be mailed out, hopefully under budget. He said the old pumper truck will serve as a backup.
The budget will be reviewed shortly. There is a proposal to hire someone from in-house to look at the fees for the next year. He said any city can bid on the proposal.
Skrede said he would compile information on response times and provide it for the Council.
C. Public Works
City Administrator Young presented the schedule of activity for the months of May for Council review.
D. Administration
Administrator Young provided an update to the Council on meeting with Ben Withhard, Executive Director of Senior Community Services, on the need for increased funding from participating cities towards senior center programming in 2007.
He also provided a brief update on Storm Water Pollution Prevention Plan and on the LMCD Budget meeting held on May 25th.
ADJOURNMENT
Motion to adjourn by
Councilmember Wheaton. Seconded by
Councilmember Skrede. The meeting
adjourned at 10:15 p.m.
Respectively submitted,
Dana Young
City Administrator