DEEPHAVEN PLANNING COMMISSION

TUESDAY JANUARY 17, 2006

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 Walter Linder, Jeff McKinney and Warren Nelson

ABSENT: Commissioners Joan Budd and Bob Werneiwski

OTHERS PRESENT: Councilmember Kim Crockett and Zoning Coordinator Gus Karpas

MINUTES OF December 20, 2005

Motion by Commissioner Linder, second by Commissioner McKinney, to approve the minutes of December 20, 2005 as presented. Motion carried 3-0-1. Commissioner Nelson abstained.

PUBLIC HEARINGS

Chairman Dyb said he would like to amend the agenda and move the interview process for Planning Commission candidates prior to the rezoning request. Commissioners agreed to the change.

SPECIAL USE PERMIT – Deephaven Education Center, 4584 Vinehill Road, (R-2, 40,000). A request to place one hundred and thirty-five square feet of signage, in the form of an awning over the main entrance of their structure.

Mike Conden, Minnetonka School District, presented the request. He said that a reconfiguration of the driveways on the site has created confusion on the exact location of the front of the building. The proposed sign would define the front entrance.

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

Chairman Dyb asked if the proposed awning would be lit. Mr. Conden said no additional lighting would be added.

Commissioner Linder asked for clarification on the exact location of the awning. He noted there seemed to be a conflict on the dimensions shown for the sign. Mr. Conden said the awning would be located above the existing concrete entryway canopy and that it would extend about four feet above it and for a length that was over and just beyond the windows above the canopy. He said the illustrations show the framing elements of the awning, which will not be visible, and the depth of the awning. Mr. Linder said he supports the request.

Commissioners Dyb, McKinney and Nelson were supportive of the request.

ACTION: Motion by Commissioner Dyb to recommend the City Council approve the special use request by Minnetonka Public Schools to place one hundred and thirty-five square feet of signage, in the form of an awning over the main entrance of the Deephaven Education Center located at 4584 Vinehill Road. The request is not out of character with the use of the structure and there is a need to identify the building. Commissioner Nelson seconded the motion. The motion carried 4-0.

VARIANCE – Andy and Barbi Mahoney, 19390 Walden Trail, (R-2, 40,000). A variance request to rebuild a portion of an existing non-conforming structure located within the required side yard setback. The requested variance is for seven feet of the required twenty-five (25) foot side yard setback.

Dave Steingas of Steiner Koppelman presented the request. He said the Mahoney’s would like to demolish the existing portion of the structure and rebuild it in the same footprint. As part of the project, a partial second story addition would be constructed, which will comply with the required side yard setback.

Chairman Dyb asked if the foundation would be able to support the proposed second story addition. Mr. Steingas said it would.

Commissioner McKinney has no concerns with the request.

Commissioner Nelson was supportive of the request since it will not encroach further into the required side yard and noted the existing structure is in need of repair.

Chairman Dyb was also supportive. He said the unique design of the gutter system appears to be causing rot on that portion of the structure.

Commissioner Linder also supported the request.

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

ACTION: Motion by Commissioner Nelson to recommend that the City Council approve the variance request to rebuild a portion of a non-conforming structure which encroaches seven feet into the required twenty-five foot side yard setback. A hardship exists in that the structure is in need of repair and that the proposed project does not extend further into the required setback. Commissioner Dyb seconded the motion. The motion carried 4-0.

Planning Commission Candidates

Chairman Dyb said there are four people in attendance to interview for the vacant Commissioner position. Each candidate will be given a few minutes to outline their experience and interest in serving on the Commission.

Chairman Dyb briefly described the duties and time commitment for Planning Commissioners.

William Wright, 18200 Honeysuckle Lane, gave a summary of his educational background and work history. He said he has been a resident of Deephaven since 1968 and retired in 1998. He said he understands the history of the city and would be happy to serve the community.

Commissioner Nelson asked if Mr. Wright would have any conflicts with the scheduled meetings. Mr. Wright said he would not.

Josh Sparber, 19050 Easton Road, said he is a six year resident of the city who graduated from Minnetonka High School. He is currently a real estate agent for Coldwell Banker. He said he would like to serve on the Commission for civic reasons. He would like to maintain the bedroom community aspect of the city while encouraging growth of the tax base. He said this needs to be done with the concerns of long term residents in mind. He believes in a conservative growth policy while supporting the aspects that have made the community special.

Chairman Dyb asked if Mr. Sparber felt his occupation would be an asset to the Commission. Mr. Sparber said he believed it did. He said through his job, he has learned the processes involved with Planning Commissions.

Greg Obermiller, 3680 Northome Avenue, said that he has lived in the city since 1988. He holds degrees in engineering, with specific emphasis on public utilities. He feels he would be an asset to the Commission in those cases when technical knowledge is needed on city services.

Brian Larson, 18920 Park Avenue, has been a resident of the city for six years. He’s heavily involved with Minnetonka School District and has served on numerous boards. He has volunteered for the city in the past. He feels he will be active and proactive to help maintain the character of the City of Deephaven.

Commissioners agreed to discuss the applicants and make a recommendation to the City Council after the rezoning request.

REZONING REQUEST – David Wheaton, 20760 Linwood Road, (R-2, 40,000). A rezoning request to rezone eight properties along Linwood Road from R-2, Single Family Residential to R-3, Single Family Residential.

David Wheaton presented the request. He distributed a handout that followed his presentation. He said there are five main points or questions that need to be addressed in the request to rezone the properties in question.

He said he was before the Commission on behalf of himself and four of the other six property owners in the proposal area, who seek to rezone their property from R-2, Single Family Residential to R-3, Single Family Residential. He noted that six of the eight property owners are in favor of the request.

He addressed the background of the property and the reasons it should be rezoned. He said the property was platted in 1969 with side yard setback requirements of fifteen feet. He discussed the development of the Shaw home at 20730 Linwood Road, which was constructed in 1970, with fifteen-foot setbacks. He noted that the Jolstad property at 20770 Linwood Road, existed prior to the platting of the subject properties and that the southernmost line of the plat was permitted sixteen feet from the structure. He believes this shows that the intent was for the area to be zoned at R-3. He said the properties were incorrectly rezoned in 1973, when the city overhauled its Zoning Ordinance. He feels this change has caused an inequitable and unreasonable restrictiveness on the development of those properties currently vacant.

Mr. Wheaton discussed why the property was zoned incorrectly. He said the size of the lots warrant an R-3 designation since they fall short of the R-2 requirements, especially in required lakeshore frontage and total lot area. He discussed the Deephaven Comprehensive Plan and noted it does not reflect the actual property conditions for the area. He said the property should be classified Residential Medium Density, which has a lot area requirement of 20,000 square feet, rather than Residential Low Density, with a lot area requirement of 60,000 square feet.

He said his lot is negatively impacted by the required side yard setbacks in the R-2 District and that nearly fifty percent of his lot width is rendered unbuildable when the setbacks are applied. He said there are many examples of lakeshore property in Deephaven that share the lakeshore width of his property, and they are primarily zoned R-3.

He said that rezoning the property would have minimal change in the sense that the required lakeshore setback and hardcover remains unchanged with a zoning change. He noted that the allowable footprint and height are actually reduced in a positive manner. He said the only real change is in the reduction of the front yard and side yard setback. He said the change would permit wider homes, but with smaller footprints, thus reducing overall density.

In summary, he said four of the six property owners, owning six of the eight lots in question, would like the Planning Commission to recommend approval for rezoning of the area to permit the use of the properties in the manner they were intended when they were originally platted and in an equitable manner consistent with other similarly sized lakeshore properties in Deephaven.

Zoning Coordinator Karpas said he would like to clarify a couple of issues. He said there is no documentation indicating this property was ever zoned R-3 and that, at the time of platting, there was a one-acre minimum lot area. There is no indication why the Council approved a plat in which the lots did not meet the minimum lot area.

Karpas said there is also no information on the specific lot dimension at the time of platting, but it is known the one hundred and twenty-five foot lakeshore requirement was adopted in 1997.

Chairman Dyb opened the public hearing.

Josh Sparber, 19050 Easton Road, clarified the area included in the request. Mr. Wheaton noted those outlined in red are the only ones included.

Dave Steingas, 19555 Cedarhurst, expressed concern about setting a precedent. He noted there are other properties in the immediate neighborhood, which have narrow lakeshores. He said there are a number of vacant properties, which could be subdivided under a zoning change. He asked Mr. Wheaton if he was aware of the zoning of his property when he purchased it. Mr. Wheaton said he was, but that he was within his right to request the property be rezoned.

Jim Engstrom, 20665 Bayview Court, said he was surprised when he received his public hearing notice on this request. He said he typically takes an open minded perspective on a property owner’s right to develop their property. He said, as a twenty year resident of Deephaven, he is interested in maintaining the character of the community. He is concerned about the possible change in density if the property is rezoned. He said he has been very fortunate that the properties near him have been vacant, but noted he would not support a change that could lead to the type of density as is present just south of the subject properties on Linwood Circle. He feels that all property owners should have to work within the requirements of the zoning ordinance.

Josh Sparber said it was only speculation to assume that the property line on the north side of the Jolstad property, being only sixteen feet from the structure, indicates the area was zoned R-3. Mr. Wheaton disagreed and noted the Jolstad’s property was not included in the plat. He said the setback shows the intent of R-3 zoning.

Vicki Wyard, 20720 Linwood Road, said she has lived in the neighborhood from 1946 to 1993. Her Grandfather subdivided the properties in question and she remembers attending the meetings in 1969 and that the properties were platted with a fifteen foot side yard setback. She said the properties across the street was platted at a later date and were made to adhere to the R-2 zoning requirements.

She said the lots were platted before the zoning amendments in 1973, yet were rezoned to R-2. She said she was unaware of the zoning change until she tried to obtain a building permit. Other areas of the city which were platted under the R-2 zoning comply with the R-2 requirements; those zoned R-2 and platted before the 1973 zoning changes do not. She feels this is a unique situation with a specific history.

Chairman Dyb said he understands part of the argument when it comes to homes in existence at the time of the ordinance change. He said those properties are typically grandfathered and given special consideration. He noted the city typically views vacant lots differently.

Jane Brattain, 20700 and 20710 Linwood Road, addressed the concerns about preserving Deephaven’s character. She said the way she and her husband have taken care of their property should speak for itself in their interest in preserving character. She said they have no plans to develop property and hopes people see they have been good community members.

Dave Steingas asked how many of the properties were purchased after the 1973 zoning change. He stated that his point is that it is the buyer’s responsibility to know what the zoning of a property is before they purchase it. Mr. Wheaton again said that it is irrelevant whether he knew the zoning requirements prior to purchasing the property, he is within his rights to seek a rezoning.

Chairman Dyb said that when people purchase land, they should verify whether their plans fit on that property.

Ms. Wyard said that once she found out about the rezoning of the property in 1973, she approached the Council to change the error. She said she was told to wait until the ordinance came up for review again. If she had known about this rezoning process, she would have done it sooner.

Don Brattain, 20700 and 20710 Linwood Road, said he doesn’t understand the concern with density. He feels the required lake width would limit the ability to subdivide the properties. Zoning Coordinator Karpas noted that there is a big inconsistency between the required lot width at the road and the lot width at the lake. This could bring the ordinance into question and potentially lead to issues on illegal taking on part of the city if it were to enforce the lake width requirement on a subdivision request.

Mr. Wheaton said that lakeshore has always been treated differently and noted that the zoning change would lessen the permitted footprint. He said it’s unrealistic to think that someone would buy a lot with only fifty foot of lake frontage and the ability to only build a twenty-eight foot wide home.

Bruce Wheaton, 20045 Cottagewood Avenue, feels that it’s the city’s responsibility to be able to provide historical records to verify the zoning of the property when it was platted.

Zoning Coordinator Karpas read a letter into the record from Richard and Thelma Lareau, 20750 Linwood Road, in opposition to the request. Karpas noted he had also received letters in opposition from Mr. and Mrs. Napolitano (20705 Linwood Road), Mr. and Mrs. Jolstad (20770 Linwood Road), Lloyd and Shirley Hubbard (20645 Bayview Court) and Steve and Vicki Yungerberg (20735 Linwood Road).

Ms. Wyard submitted a letter disputing claims included in the Lareau letter. She said that she and her husband are not legal residents of Florida, that she knows the ordinance changes in 1973 reclassified the properties in question, that she did oppose the Jolstad variance request as it pertained to setbacks, but supported the variance request to exceed the maximum permitted impervious surface and that she and her husband have always respected and followed city rules as it pertains to the development of their property.

David Wheaton said that contrary to the Lareau’s claim, he would not be able to construct a seventy foot wide home on the property.

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

Commissioner Nelson thanked Mr. Wheaton for all the hard work he put into his research and presentation. He said he kind of understands the underlying issue with the zoning, but also doesn’t since three fourths of the properties comply with the provisions of the R-2 zoning district. He doesn’t understand the purpose of rezoning the area to R-3. If there is a belief that any of the properties cannot be reasonably developed under the current regulations, property owners can apply for a variance to gain relief. He feels he needs more convincing that there is an advantage to rezoning the property to R-3. He said the culture of the city is for development with corresponding green space. At this time he hasn’t heard a compelling argument to rezone the property.

Chairman Dyb said the underlying question is whether the subject properties can be put to a reasonable use without a variance or rezoning. He believes they can. He did note that the city holds vacant lots to a higher standard in terms of complying with ordinance requirements. He said one of the most difficult roles of the Planning Commission is to do its best to maintain the character of the community. He said there is no such thing as a standard lot in the city and that the zoning requirements affects each lot differently. He agrees the city may have done a better job at record retention, but does not believe the previous ordinance has any bearing on the request. He does not believe there is a justification to rezone the area as requested.

Commissioner Linder said he understands the points the applicant has made and does not believe the request is unreasonable. He said he doesn’t see a zoning change as detrimental to the density of the area. He is, however, not persuaded with the applicant’s argument that the property was rezoned, leading to inequality in the applicant’s ability to develop his lot. He noted that only three properties are developed at this time and any past change in the ordinance is irrelevant to the development of the remaining properties to the extent that the current owners purchased their properties after the current zoning was in effect. He feels that a request to rezone the area is too large of an approach to take to address what appear to be relatively limited issues. He is concerned about the impact a rezoning of this type would have on similarly situated properties in Deephaven. He doesn’t believe the issues raised warrant a zoning change absent further development and consideration of the city-wide impact of such a change. He is opposed to the request.

Commissioner McKinney agrees with the points made by the other Commissioners. He doesn’t see a reason to rezone the area and does not believe evidence has been provided to show the properties were rezoned from what they were originally platted as.

Chairman Dyb told the applicant that he is not sensing a lot of support for the request, he said the applicant could continue on to the Council or ask that the issue be tabled so they could conduct some more research. Mr. Wheaton, speaking on behalf of the other property owners involved in the request, would like to go before the City Council.

Council Liaison Crockett asked staff to verify if this request falls under the 60 day rule in the State Statutes.

ACTION: Motion by Commissioner Dyb to recommend the City Council deny the rezoning request to rezone eight properties along Linwood Road from R-2, Single Family Residential to R-3, Single Family Residential. The remaining vacant properties can be put to a reasonable use without the rezoning. Commissioner McKinney seconded the motion. The motion carried 4-0.

The Planning Commission adjourned for a brief recess at 8:45. The Commission reconvened at 8:55

OTHER BUSINESS

Planning Commission Candidates

Commissioners discussed the four candidates vying to fill the vacancy created by Kent Carlson. The Commission agreed that all candidates have qualities sought to serve on the Commission. Commissioners discussed the strengths and weaknesses of each candidate.

It was determined that the Commission would list and rank their choices to fill the vacancy. The Commission selected Josh Sparber to fill the existing vacancy. Commissioners felt his experience as a real estate agent would be an asset to the Commission.

ACTION: Motion by Commissioner Dyb to recommend that the City Council appoint Josh Sparber to fill the vacancy created by Commissioner Carlson. Commissioner McKinney seconded the motion. The motion carried 4-0.

LIAISON REPORT

Councilmember Crockett said the only Planning request before the Council was the garage variance of Mr. Burton. She said the request was approved by a 3-2 vote and was conditioned that the impervious surface be reduced by three percent.

Other items discussed by the Council were the resignation of Fire Chief DuCharme and the setting of the Council’s plans and goals for 2006.

ADJOURNMENT

Motion by Dyb to adjourn the meeting. Commissioner Nelson seconded. The motion carried 4-0. The meeting adjourned at 9:45 p.m.

Respectfully submitted,

Gus Karpas

Zoning Coordinator