DEEPHAVEN CITY COUNCIL

WEDNESDAY, JANUARY 3, 2007

7:00 P.M.

 

 

1.                  OATH OF OFFICE

Mayor Paul Skrede and Councilmembers Kim Crockett and Steve Adams were administered the Oath of Office.

 

2.                  CALL MEETING TO ORDER: Mayor Paul Skrede called the meeting to order at 7:00 p.m.

 

PRESENT:       Mayor Paul Skrede, Councilmembers Kim Crockett, Steve Adams and Keith Kask

 

ABSENT:        Councilmember John Wheaton

 

STAFF:            Zoning Administrator Gus Karpas, Police Chief Virgil Gustafson and City Administrator Dana Young

 

3.                  CONSENT AGENDA

 

Motion by Councilmember Crockett to approve the consent agenda, consisting of the following items:

 

A.     Minutes of December 18, 2006

B.     Verifieds

C.     Approve April 2, 2007 as the date for the annual Board of Review meeting

D.     Adopt Resolution No. 03-07, Authorizing an Extension of the EPDB License Agreement with Hennepin County

 

Seconded by Councilmember Kask.  Motion carried 4-0.

 

4.                  MATTERS FROM THE FLOOR

 

There were no Matters from the Floor.

 

5.                  PLANNING COMMISSION ITEMS

 

SPECIAL USE PERMIT – Amber Huttner, 18285 Minnetonka Boulevard, (C-1, 10,000) special use request to operate a yoga studio in the C-1, Commercial District.

 

Zoning Coordinator Karpas presented the request.  He said the request is to lease some space in Deephaven Court and operate a yoga studio.  Section 1305.02(1)(94) permits physical culture and health services, reducing salons and masseurs as a special use in the C-1 District.  There would be no change in the dimension of signage and parking would be achieved through the existing parking lot.

 

Mayor Skrede asked if there were any question or comments from the Council.  Councilmember Crockett said she had no questions.  Councilmember Kask said he had no issues with the request and noted it complies with the requirements in the City Ordinances.

 

Motion by Councilmember Kask to approve the special use request to operate a yoga studio in the C-1, Commercial District, as described, at 18285 Minnetonka Boulevard.  The proposed use falls under the provisions of the city ordinance and is consistent with other uses in the district. Councilmember Crockett seconded the motion.  Motion carried 4-0.

 

PRELIMINARY PLAT/VARIANCE – McNulty Construction Company, Manor Road, (R-2, 40,000) A preliminary plat request to subdivide an existing outlot located in the city of Deephaven into two lots and a variance request to waive the requirements of Section 1210.10(4)(g) of the subdivision ordinance which prohibits the development of slopes in excess of 30%.

 

Zoning Coordinator Karpas presented the request.  He said McNulty Construction Company is requesting a Preliminary Plat to subdivide an existing outlot into a new outlot and a lot they feel is buildable.  In addition to the Preliminary Plat request, the applicant is seeking a variance to disturb slopes in excess of 30% for the proposed access to the lot and for the proposed building pad on the lot.

 

Rick Rosow, of Gregerson, Rosow, Johnson and Nilan, Ltd., attorney for the applicant, asked if the proceeding were a public hearing.  Kim Kozar, of Hoff, Barry and Kozar said it was not and that the public hearing was held at the Planning Commission meeting.  She said the public hearing was closed at that meeting.  Mr. Rosow questioned why the item was listed on the agenda as a public hearing and whether it had been noticed as a public hearing in the paper.  Zoning Coordinator Karpas said the public hearing notice in the paper indicated the public hearing would be at the Planning Commission.  He believes the heading on the agenda has not been changed since the public hearing began being held at the Planning Commission about a year or so ago.

 

Mayor Skrede invited the applicant to make a presentation, informing him that the Council had all the documentation submitted for the application, along with the minutes from the Planning Commission.

 

Roger Anderson, Anderson Engineering, said the applicant believes the property is a buildable site.  He said he was asked at the Planning Commission how the application had changed from previous requests on this property.  He said it’s different in that the city has clarified rules in regards to access, slopes and wetlands.

 

Mr. Anderson discussed the wetlands noting that there were four separate delineations showing the extent of the wetlands at various times.  He said the setback from the wetland is based on the most conservative delineation.

 

Mr. Anderson discussed the need for an easement across Lot 1, McNulty Manor to gain access to Lot 1, McNulty Manor 2nd Addition.  He used an aerial photo as a reference.  He said the proposed paved access would be twenty feet in width, set within a thirty-foot wide easement.  He said the proposed dimensions meet the requirements of the Fire Department.  He noted that both the Fire Department and Police Department had reviewed the proposed access.  He said any home built on the property would have a fire sprinkler system.

 

Mr. Anderson said issues related to erosion control can be addressed during construction and the requirements of the Minnehaha Creek Watershed District and the NPDES permit can be met.

 

Mr. Anderson said the final issue is the variance.  He believes a variance is necessary to permit the reasonable use of the property.  He believes the variance process is a cooperative process with the city, with plans being adjusted throughout the process as needed.  He noted that any structure built on the property could comply with the required setbacks.  He said the Planning Commission noted that a detailed plan showing the driveway and a home on Lot 1, McNulty Manor 2nd Addition had not been shown.  He said that being the case, the applicant has represented ways to address the issues involved with the request.  He said issues related to a specific home could be addressed during the building permit process.

 

Mr. Anderson distributed a handout with a number of exhibits.  He noted that exhibits 7a and 7b showed a proposed home with turnarounds compliant with the Fire Code.  These plans were submitted with the previous request on the property.  Mr. Anderson presented a scaled model showing a hypothetical development on the property, showing a driveway, retaining walls and home.  He said even this hypothetical example disturbed slopes in excess of 30%, both on Lot 1, McNulty Manor for the proposed access and on Lot 1, McNulty Manor 2nd Addition for the hypothetical home.  He believes a single family home is a reasonable use of the property and that through engineering, a safe home could be developed on the property with adequate access.

 

Mr. Anderson said it was important to note that the disturbance of slopes is temporary during construction and that extensive landscaping can be done to re-establish the slopes when construction is done.

 

Mr. Anderson addressed the study conducted by Schoell & Madsen in 1982 and their determination that there were only two buildable areas on the property.  He said Mark Koegler authored the report.  He said more recent studies done by Mr. Koegler, who is no longer with Schoell & Madsen has found the property could reasonably be developed.

 

Mr. Anderson discussed Bowman Addition; a Preliminary Plat recently reviewed and approved by the City Council.  He said the property had similar conditions in terms of slopes and that the city permitted a paved driveway with a width of only fourteen feet.  He noted another earlier subdivision on the Gronberg property where the city permitted retaining walls greater than fourteen feet in height and a driveway on a slope that exceeded 30%.  He believes if the same criteria applied to those projects were applied to the subject property, it could be developed.

 

Councilmember Kask said he agrees with the observations made by Staff and the Planning Commission.  The proposal is no different that the one recently litigated.  The same property, the same subdivision and the same issues.  He said the city has gone through considerable time and expense in reviewing proposals for this property over the years.  He said the analysis of the roads and retaining walls on the Bowman Plat had no bearing since the road and retaining walls are located in the City of Shorewood.  He said the fourteen-foot driveway width is not comparable to the applicant’s request since the driveway would be a continuous loop throughout the property, allowing vehicles to drive straight through.

 

Mayor Skrede agreed there was a distinct difference between the applicant’s request and the Bowman Plat.  He said the City of Deephaven doesn’t have the right to tell another city what to do in terms of access roads.

 

Councilmember Crockett said she likes to approach each request with the attitude of working with an applicant to determine how to develop a property.  She asked the applicant to clarify what undue hardship is.  Mr. Anderson said allowing the reasonable use of the property constitutes a hardship.  He said the only reasonable use of the property is to build a home on it.

 

Councilmember Adams said he has reviewed the material included in his Council packet dealing with the long history of this property and the attempts to subdivide it.  He asked the applicant to inform the Council on what has changed since the last time this request was before the Council.  Mr. Anderson said rules regarding access have been clarified by the city.

 

Mayor Skrede commented that the city knows that issues related to access have been clarified.  He questioned what is different in terms of the proposed subdivision from the last time it was submitted.  He said it’s difficult to analyze the request without a specific home being shown as part of the request.

 

Mr. Rosow said the point Mr. Anderson is trying to make is that a variance is needed to disturb the steep slopes.  The other provisions of the ordinance can be met.  He said the applicant understands that any proposed home or retaining walls would need to be in compliance with the ordinances in order to receive a building permit.  He said the applicant is trying to address the concerns of the city.  He asked what is the applicant not doing to address those concerns.  He said the presence of slopes creates the hardship.

 

Zoning Coordinator Karpas noted that slopes have always been an issue with subdivision requests for this property.  He doesn’t know that the presence of slopes on a property necessarily constitutes a hardship.

 

Mr. Rosow said the city has the authority to grant a variance based on the slopes.  He said the applicant is not trying to ignore the regulations and is trying to comply.  He said the proposed division is a reasonable use of the property.  He believes the property can be developed without any issues.

 

Ms. Kozar reminded that City Council that issues related to disturbing slopes is not limited to the building permit stage.  She said the city has regulations on access, regulations on the disturbance of steep slopes and regulations on turnarounds for terminal road.  She noted that an analysis done by Bolten & Menk showed that over 93% of the building pad contained slopes greater than 30%.

 

Dave Martini, Bolten & Menk distributed a color map identifying the wetland limits, slopes between twelve and thirty percent and slopes in excess of thirty percent.  He noted that almost the entire building area of the lot contains slopes greater than thirty percent.  He said a variance would not be limited to just one portion of the building pad, rather it would be required for the entire building pad.  He said the property couldn’t be developed without disturbing slopes greater than 30%.

 

Councilmember Kask asked Mr. Martini if a 30% slope would be about a three-foot difference in grade over a linear ten-foot area.  Mr. Martini said approximately.  Kask asked if there were slopes greater than 30% on the building pad.  Mr. Martini said there are some slopes within the building pad that exceed 40%.

 

Councilmember Kask commented that the 2006 wetland delineation shown on the Preliminary Plat is not an accurate representation since it was a dry summer.  Mr. Martini said that typical wetland delineations take into account vegetation.  Kask noted that the building pad showed instances where steep slopes ran into the wetland buffer.

 

Councilmember Kask reiterated that 93% of the building pad contain slopes greater than 30%.  He said the application presupposes that just because a property is owned, it can be developed.  He noted that the Comprehensive Plan has indicated, for decades, that steep slopes be preserved in a natural state.  He said past surveys of the property have had difficulty showing more than two lots on the property, which would not disturb steep slopes.

 

Councilmember Crockett asked if there was additional property on the Preliminary Plat that could be deemed buildable by the applicant in the future, or is it prohibited by the presence of wetlands.  Mr. Anderson said there was a portion of upland located at the southeast corner.

 

Councilmember Kask said he believes the requested subdivision is creating the issue requiring a variance and that the granting of a variance needs to be based on special circumstances.  He said special circumstances is what created the city regulations in terms of slopes.  He said a previous subdivision of the property created Outlot A, which is being proposed for division in this plat.  He believes the applicant created his own hardship in the creation of Outlot A.

 

Mr. Rosow said he understood the issues related to a variance request.  He said in this case, the issue revolves around the concern for the steep slopes.  He asked what the applicant could do to address those concerns.  Mayor Skrede said it is not the city’s job to figure out how to make a proposal work, its job is to verify that a proposal complies with the city’s ordinances.  He’s not sure what the city has to offer in terms of a solution.  He said the ordinances exist and he doesn’t see a remedy available that can be offered by the city.

 

Mr. Rosow said the applicant is seeking city support on his variance request.  He said that the city has approved previous requests in which similar situations existed.  Mr. Rosow attempted to submit a binder showing other divisions within the city with those conditions.  He said this information was previously submitted to the Council, during the last application.

 

Ms. Kozar said the binder offered by Mr. Rosow was never accepted into the record on the previous request and could not be submitted at this time for Council consideration since the Public Hearing has been closed.  In addition, the memo dated January 3, 2007, distributed tonight during Mr. Anderson’s presentation cannot be accepted into the record for the same reason.  Mayor Skrede stated that the Council would not consider the document as part of the record.

 

Mr. Rosow noted that the proceedings were still a public meeting.  He said he appreciates the time spent on the applications.  Though he senses the vote will be against the request, he believes it is a good development project.  Councilmember Crockett indicated it’s difficult to work with the applicant considering the extent of steep slope area in the building pad.

 

Joe Nilan, of Gregerson, Rosow, Johnson and Nilan, Ltd., attorney for the applicant, said he has been listening to the discussion and has heard a willingness to work with the applicant if it were not for 93% of the building pad containing steep slopes.  He’s heard a discussion on hardship and on how the ordinance in place prohibits the development of slopes greater than 30%.  He said the ordinance limiting development in slopes only applied to driveways the last time this issue was brought before the Council, and did not apply to the building pad.  He believes this creates a hardship.

 

Ms. Kozar said the change in the ordinance in terms of slope was to incorporate the slope provisions from the Comprehensive Plan into the Subdivision Ordinance.  She noted the Planning Act of Minnesota states that provisions of the Comprehensive Plan supercede the regulations contained in the Zoning Ordinance.  She also noted that access to Lot 1, McNulty Manor 2nd Addition does not terminate at the lot line with Lot 1, McNulty Manor.  The ordinance requires a turnaround, which is part of the overall access, which will take a significant portion of the proposed lot.

 

Ms. Kozar asked Mr. Martini if the color map previously distributed by him was the same included in the Council packet with a clarification that the areas colored yellow were slopes in excess of 12%, and not slopes less than 12% as indicated.  Mr. Martini said that was correct.

 

Ms. Kozar asked Mr. Martini his opinion on the alteration of slopes greater than 30% and the potential effect on the wetland areas.  Mr. Martini said that Mr. Anderson was correct that the greatest amount of disturbance would be during construction, but noted that the steeper the slope, the harder it is to re-establish once construction is completed.

 

Mr. Rosow noted that the color map was not submitted to the Planning Commission.  Mr. Martini said the map was a colored version of page two of the submitted Preliminary Plat.  He said nothing has been done to alter the plans.  It has just been colored to more clearly show the different slopes.

 

Mayor Skrede discussed the voting procedure in case of a tie vote, due to the absence of Councilmember Wheaton.  He said a tie vote on a motion to approve would constitute a denial.

 

Ms. Kozar drew the Council’s attention to Resolution 05-07 included in the Council’s packet denying the request for their consideration.  She noted that a copy of this resolution was provided to the applicant’s attorney prior to the meeting.  Councilmember Crockett asked if the draft Resolution was necessary based on the 120-day deadline for action.  Ms. Kozar said the 120-day process only applies to requests in compliance with the city subdivision code.  She is recommending that the City Council take action tonight and if it wishes to approve the request, that the city obtain written authorization from the applicant to continue the request to the next meeting to allow staff to draft a resolution approving the request.

 

Motion by Councilmember Kask to adopt Resolution 05-07 denying the Preliminary Plat request from McNulty Construction Company for McNulty Manor 2nd Addition.  Councilmember Crockett seconded the motion.  The motion carried 4-0.

 

Staff provided a signed copy of Resolution 05-07 to the applicant’s representative Mr. Rosow.

 

6.                  NEW BUSINESS

 

A.                 Adopt Resolution No. 01-07, Appointments & Assignments for 2007

 

Motion by Councilmember Kask to adopt Resolution No. 01-07, Appointments & Assignments for 2007, as amended.  Seconded by Councilmember Adams.  Motion carried 4-0.

 

B.                 Authorize Attendance at Conference for Newly Elected Officials

 

Motion by Councilmember Crockett to authorize the attendance of Councilmember Steve Adams at the Conference for Newly Elected Officials from January 26-27 in the amount of $265.00.  Seconded by Councilmember Kask.  Motion carried 4-0.

 

Councilmember Crockett suggested that Councilmember Adams might also be interested in attending the seminar on Local Board of Appeals & Equalization training, which Mayor Skrede and Councilmember Kask attended several years ago.

 

C.                 Adopt City Fiscal Policy

City Administrator Young presented the 2007 City Fiscal Policy for Council review.  The Council recommended establishing an unreserved General Fund balance that equals or exceeds 90% of Current Year Expenditures.

 

Motion by Councilmember Adams to adopt the 2007 City Fiscal Policy as amended.  Seconded by Councilmember Kask.  Motion carried 4-0.

 

D.                Adopt Resolution No. 02-07, Resolution of Appreciation to Outgoing Board Members

 

Motion by Councilmember Kask to adopt Resolution No. 02-07, A Resolution of Appreciation to Jean Midthun, Charty Oliver and Oliver Arrett for their years of service on the Deephaven Park Committee and Deephaven Boat Committee.  Seconded by Councilmember Adams.  Motion carried 4-0.

 

E.                 Discuss Date & Agenda for January Worksession

 

Motion by Councilmember Crockett to hold a Special Council Worksession on Wednesday, January 17th at 5:00 p.m. to discuss 2007 City Council Goals & Objectives.  Seconded by Councilmember Adams.  Motion carried 4-0.  Mayor Skrede stated that there would also be some discussion regarding Police Department appointments at the worksession as well.

 

7.                  DEPARTMENT REPORTS

 

A.                 Police Department

 

Police Chief Virgil Gustafson provided a brief review of current department activities.  He thanked the Council for the reappointment of Dick Brown to the Civil Service Commission and stated that the two new squad cars have arrived and cost $500 less than two squad cars purchased in 2003.

 

B.                 Excelsior Fire District

 

Mayor Skrede stated that Deephaven’s request to review the funding formula is moving forward and he would like to serve as one of Deephaven’s two representatives on the Committee that will be formed shortly to review that issue.

 

He added that he had recently participated in providing information for a three month Performance Evaluation of Fire Chief Scott Gerber.  The results of the Review should be shared with the new EFD Board members and brought back to the Council.

 

C.                 Public Works

 

Administrator Young provided an update on recent department activities and a summary of storm water project activities.

 

D.                Administration

 

Administrator Young provided a brief update on the following items:

 

·        The opening of the warming houses have been delayed due to unusually warm weather and it is hoped we will open the warming houses sometime this week.

·        The City of Deephaven will begin providing Fiscal Agent Services on behalf of the Excelsior Fire District effective January 1, 2007.

·        T-Mobile’s tower is erected and they have agreed to commence the Site Lease Agreement with the City of Deephaven effective December 8, 2006.

·        An additional 9 deer were caught as part of the Deer Management Program.

·        Ron Liner’s Farewell Party on December 22nd was very well attended.

 

Councilmember Crockett expressed concern regarding the amount of time and cost spent by the Public Works Department in their efforts to establish ice for the ice rinks.  Administrator Young agreed that efforts on the ice rinks have been very difficult this year due to the unseasonably warm weather.

 

8.                  ADJOURNMENT

Motion to adjourn by Councilmember Kask, seconded by Councilmember Crockett.  Motion carried 4-0.  The meeting adjourned at 9:13 p.m.