DEEPHAVEN PLANNING COMMISSION

TUESDAy NOVEMBER 20, 2007

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 Barbarajean Brandt, Walter Linder, Jeff McKinney Warren Nelson, Josh Sparber (7:03) and Bob Werneiwski

ABSENT: None

OTHERS PRESENT: Council Liaison Steve Adams (7:12) and Zoning Coordinator Gus Karpas

MINUTES OF September 18, 2007

Motion by Commissioner Nelson, second by Commissioner McKinney, to approve the minutes of September 18, 2007 as presented. Motion carried 6-0.

PUBLIC HEARINGS

VARIANCE – Doug and Ann Cooley, 3342 Robinson’s Bay Road, (R-2, 40,000) – The applicants are requesting to demolish and rebuild a single family home which would encroach into the required north and south side yard setbacks and exceed the maximum permitted impervious surface area. The requested variances are to encroach seven feet, eleven inches into the required twenty-five foot north side yard setback, to encroach eighteen feet, three into the required twenty-five foot south side yard setback and to exceed the maximum permitted impervious surface area percentage of twenty-five percent by 5.4%.

Zoning Coordinator Karpas reviewed his staff report. He said the request was to use the footprint of the existing home with the addition of an attached garage. The proposed garage would create an additional encroachment into the south side yard.

Karpas said he recommended approval for the request since the request was a reasonable use of the property and the lot dimensions limit the development options on the property for an attached garage that would not create further encroachments. The proposed placement of the garage would not impact the adjacent properties and the project would be in keeping with the existing character of the neighborhood.

Karpas noted that staff had received two letters of support, one from the Kahlers 3320 Robinson’s Bay Road, directly north of the property and one from Rick Lang 3244 Robinson’s Bay Road.

Commissioner Werneiwski asked how the lot dimensions and lot area of the subject lot compared to others in the neighborhood. Karpas said the nature of the lot, long and narrow is very similar, but that the subject lot has less lot area and is slightly narrower than others in the neighborhood.

Doug Cooley spoke to the request stating that his lot is non-conforming and has a high water table. The high water table prevents them from having a full basement leaving them with a need for storage space, which is the reason for retaining the existing detached garage. He said since the last time they met with the Commission they have met with the neighbors on a number of occasions to develop a plan that is more to their liking and fits better in the neighborhood. He said the major changes from the previous plan include moving the garage portion of the home from the north side of the lot to the south side of the lot and the number of proposed garage stalls has been reduced to three from the four originally proposed. He said he and his wife want to maintain the character of the neighborhood and look forward to becoming part of the Deephaven community.

Chairman Dyb opened the public hearing. Hearing no further comment beyond the letters of support submitted, the public hearing was closed.

Commissioner McKinney said he doesn’t see any problems with the request, though he would like to see conformance, he understands the property is already in variance and that the existing encroachments are not being increased.

Chairman Dyb asked about any future landscaping plan and questioned the affect it may have on the amount of impervious surface area on the property. Mike Sharrett, Sharrett Design, said there has been no final plan devised at this point, but the thought was to maintain and enhance the natural buffers along the north and south sides of the property. Mr. Sharrett noted that there would be no increase in the amount of impervious surface since the intent is to use fabric material instead of plastic in all planting beds.

Mr. Sharrett discussed the existing and proposed impervious surface situation on the property. He explained that there is a large portion of Robinson’s Bay Road located on the subject property, which can not be removed. He said if the road area, along with an equal amount of lot area were removed from the hardcover calculations, the applicant would only exceed the permitted impervious surface area by less than two percent.

Commissioner Sparber feels the applicant did a good job pulling the structure back from the property lines and said he would be supportive of the request as presented provided there is no additional impervious surface added due to landscaping.

Commissioner Brandt stated the design is beautiful, but feels the proposed structure is too much house for the lot. She also feels it would be unfortunate to encroach on any of our public beaches in Deephaven.

Commissioner Nelson agreed the plan is very nice, but expressed concern about the runoff created by the massive roofline along the south property line. He feels the applicant needs to take steps to ensure that additional water runoff is contained within his property and no run off onto the city owned land. He noted the hardcover has been reduced, but is torn between allowing a two-stall garage versus a three-stall garage.

Chairman Dyb discussed the detached garage, noting that it’s removal would reduce the hardcover on the property, but questioned the reasonableness of such a condition since the property would still not be brought into compliance with the standards.

Mr. Sharrett noted that the design of the detached garage would be altered so that egress would be obtained from the side rather than the street. He discussed the need from storage, noting that the existing home currently has a full basement, but they would not be allowed to incorporate it into their plan due to floodplain regulations. He said the area of the existing basement is equivalent to the proposed three-stall garage.

Commissioner Nelson said he was supportive of the request due to the size and dimensions of the lot.

Chairman Dyb said he was supportive of the request and noted the applicant did their due diligence in addressing the concerns raised by the Planning Commission and neighbors. He said a number of issues come into play with this request such as the road adding impervious surface, the inability to construct a basement, the size of the lot and the character of the neighborhood.

Commissioner Werneiwski said he liked the plan, though he’s still concerned about he additional encroachment onto city property. He said all things considered, the proposed request seems to be the lesser of two evils. He is supportive of the request.

Commissioner Linder said he appreciates the applicant’s attempt to create no further encroachments, but noted the proposed footprint is significantly larger than the existing footprint. He thinks the house is too large for the lot, and does not believe that a significant hardship existis to justify a house of that size. However, can buy into the argument that the proposal is too much house for the lot. He does not believe the encroachment of the garage would cause a negative impact on the city owned property and doesn’t think the proposal is out of character with the neighborhood. He is therefore supportive of the request.

The Planning Commission discussed the height of the proposed structure and size of the proposed garage. Mr. Sharrett said the structure would have an overall height of thirty-five and a half feet, but as the city measures height, would have a height of twenty-nine feet, six inches, which falls under the permitted height of thirty feet. He said the linear feet of garage structure has been reduced from one hundred and twenty feet to ninety-nine feet.

ACTION: Motion by Commissioner Dyb to recommend that the City Council approve the variance request to encroach seven feet, eleven inches into the required twenty-five foot north side yard setback, to encroach eighteen feet, three inches into the required twenty-five foot south side yard setback and to exceed the maximum permitted impervious surface area by 5.4%, for the proposed single family home, as presented at 3342 Robinson’s Bay Road. A hardship exists in the dimensions and area of the subject lot and the need to provide storage on a lot, which does not allow the construction of a basement. The proposal is not out of character with the surrounding area and the majority of the proposed structure would use the existing non-conforming footprint. It was noted that the amount of overall impervious surface on the lot is being reduced. Commissioner Sparber seconded the motion. Motion carried 6-1. Commission Brandt voted nay.

VARIANCE – Gary and Susan Rappaport, 3940 Walden Shores Road, (R-2, 40,000) variance request to construct an accessory structure that would encroach into the required lake yard setback. The requested variance is to encroach twenty-seven feet into the required one hundred foot lake yard setback.

Zoning Coordinator Karpas reviewed his staff report. He said the request was to construct an accessory structure that would serve as a playhouse for their grandchildren. The proposed accessory structure qualifies for a reduced side yard setback since it is less than one hundred and twenty square feet, but would create a twenty-seven foot encroachment into the required one hundred foot lake yard setback.

Karpas said he recommended denial for the request. He felt the applicant had not demonstrated an undue hardship preventing the reasonable use of the property and that design alternative exist to achieve the applicant’s desires without the need for a variance. The proposed accessory structure is not essential to the use of the property and the hardship was created by the homeowner, in that they did not contact city staff prior to construction.

He said he received one letter regarding the request from Pat Florance, 3920 Walden Shores Road, opposed to the request. Her property is the one most affected by the construction.

Susan Rappaport presented the request. She said the intent was to create a playhouse for their grandchildren, which would fit into their property. She said they looked at some of the traditional play systems but felt their size and flamboyant coloring would seen out of place, so they decided to design and construct one of their own. Their design was done in a manner so it would fit into a grove of trees located along their north property line. She apologize that she had not checked with the city before hand, but did not believe the structure would require a variance since it is a play structure.

Chairman Dyb opened the public hearing, hearing no public comment beyond the letter submitted to staff; the public hearing was closed.

Commissioner McKinney said he was not in favor of the request and stated that if this were any other type of structure, it would not be permitted in the lake yard setback. He concedes the spot chosen by the applicant is a great location, but is concerned that approving this request would set precedence.

Chairman Dyb asked for clarification on the final design of the structure. Ms. Rappaport said there would be a slide, some ladders and a sandbox. Dyb said his concern is the structure could easily be viewed as a gazebo or other type of structure and even though it is being designed as a play structure, could be easily converted into a different use.

Commissioner Sparber expressed concern about the size of the decking and the effect it has on the overall massing of the structure. He noted the structure is rather large. He said what separates this structure from traditional play systems is that traditional systems are temporary in nature, whereas the proposed structure is more substantial. He agrees that the use could be altered in the future. He said he is sympathetic, but would be more sympathetic if the deck structure were not included as part of the project. He said he’s wrestling with denial since the structure is already in place, but is still leaning that way.

Gary Rappaport reiterated that their intent was to design a play structure and that alternative uses had never entered their mind. He said there are already a number of existing play structures out of compliance with the ordinance. He asked about viewing the request as a conditional use permit rather than a variance request. Zoning Coordinator Karpas explained that the current ordinance does not permit the use as a conditional use, rather as a variance and that the Commission is bound to review it as such. Mr. Rappaport said that variances tend be subjective and hopes the Commission considers their intentions when rendering a decision on the request.

Commissioner Werneiwski said his thoughts are similar to those already expressed by other Commissioners. He agrees that the structure is nicely designed and placed strategically on the property, but the fact is the structure is in violation of the ordinance. Even so, he is leaning towards supporting the request.

Commissioner Nelson said he has always been one in support of enforcing the required setbacks and agrees that this structure could morph into another use for which it wasn’t intended. He said he’s having a hard time with the request based on the design and placement on the property. On the one hand it’s a large structure, but on the other, it’s really well hidden.

Chairman Dyb said the problem comes in defining what a play structure is and used the example of another property constructing a deck platform and adding a slide. He said it’s difficult drawing the line.

Commissioner Brandt believes the intent was good and feels the structure is beautiful, but feels strongly that it must be kept within the required setbacks.

Commissioner Linder commented that the applicants have a nice lot, one of the better ones in the neighborhood. He agrees the placement of the structure is ideal for screening, but agrees that the integrity of the lake setback should be maintained for fear of setting precedence. He noted that future property owners could not only convert the structure into another use, they could remove the existing trees to gain a better view of the lake.

Chairman Dyb agreed the selected location is the perfect setting for the structure, but said he is not comfortable recommending to the Council that structures of this nature should be allowed in the required lake yard setback. He said he would be more supportive had it been a more traditional type play system and not taken the characteristics of a deck.

Commissioner Linder noted the absurd result of the discussion where a nicely designed structure is prohibited in the required setback, while, under the current ordinance, a more intrusive play system would be allowed.

Council Liaison Adams noted that the discussion has been very interesting. He said the question boils down to what goes into making something an accessory structure. He noted the design of the structure lends itself to future uses and appears to be more permanent in nature than most play structures. Mr. Rappaport noted that there are no permanent frost footing on the structure.

The Planning Commission discussed the Shoreland Ordinance as it relates to required setbacks and hardcover.

ACTION: Motion by Commissioner Sparber to recommend that the City Council approve the variance request to encroach twenty-seven feet into the required one hundred foot lake yard setback to construct a detached accessory structure as presented at 3940 Walden Shores Road. The proposed structure has been designed as a play structure and placed in a manner to minimize potential impacts to adjacent properties. It is noted that traditional play systems, which would be more intrusive, are not currently regulated by the ordinance. The motion is conditioned that the structure remains unenclosed. Commissioner Werneiwski seconded the motion. Motion failed 3-4. Commissioners Nelson, Sparber and Werneiwski voted in favor of the motion to recommend approval. Commissioners Brandt, Dyb, Linder and McKinney voted nay.

ACTION: Motion by Commissioner Dyb to recommend that the City Council deny the variance request to encroach twenty-seven feet into the required one hundred foot lake yard setback to construct a detached accessory structure as presented at 3940 Walden Shores Road. The applicant has not demonstrated an undue hardship preventing the reasonable use of the property and the proposed structure lends itself to future modification to other uses not permitted within the required lake yard setback. Commissioner McKinney seconded the motion. Motion carried 4-3. Commissioners Brandt, Dyb, Linder and McKinney voted in favor of the motion to recommend denial. Commissioners Nelson, Sparber and Werneiwski vote nay.

Ms. Rappaport apologized to the Commission and stated that the scale of the design was to allow her the ability to use the play structure along with her grandchildren.

Mr. Rappaport submitted a letter requesting that the Council hearing on this request be continued to the January 7^th meeting rather than the December 3^rd meeting.

NEW BUSINESS

Tom Drummond 4143 Hillcrest Lane – Resident request for an ordinance amendment to permit concession style uses on city owner parkland.

Zoning Coordinator Karpas explained the request. He said the applicant is asking the Planning Commission to consider an amendment to the Zoning Ordinance to permit concession type uses on city parkland. He currently operates two concession stands on what is known as the Excelsior Commons in Excelsior and is locating to relocate one of the stands to Deephaven. He would like to place it on city owned parkland adjacent to City Hall, along the LRT trail.

Commissioner Linder asked for clarification on whether the Commission was suppose to consider this specific request or the concept of allowing the use as a whole. Karpas said an amendment to the ordinance would not be vendor specific and would apply to all city owned parkland, so it’s more of a concept review.

Commissioner Nelson said that also included in this review is the ability of the city to attach conditions to the use and the characteristics of the land in which the proposed use would be allowed. He said he likes the idea but is unsure it would be as viable for Thorpe Park as it would for the property adjacent to City Hall.

Mr. Drummond addressed the Commission. He thanked the Commission for their time and consideration. He said he currently owns and operates two Trolleys concession stands on the Excelsior Commons grounds and has done so for the past eight years. He said in recent years, the Trolley located near the beach area has become unprofitable. He has been looking at his options, which include selling the trolley to another city or seeking to relocate it elsewhere and maintain ownership. He said the site adjacent to City Hall would be advantageous since it would allow him to continue his hands on management of the business and permit him to continue to provide employment to local kids.

Mr. Drummond said he has done usage counts along the trail, which leads him to believe the site adjacent to City Hall would be a perfect location. He said he understands if the city is unable to accommodate his request and conceded there are a number of issues tied to the request including the need to provide sewer and water to the site and the potential outcry from the Cottagewood Store. He said his intent is not to take away from the Cottagewood Store and believes his clientele would come from a different base than that of the store. He said he is willing to work with the store.

Chairman Dyb asked about the economic viability of moving the trolley to Deephaven and asked about the daily traffic. Mr. Drummond reiterated the trolley near the beach is losing money. He attributes this to the changing use of the beach area. Dyb asked about the hours of operation. Mr. Drummond said the current hours are from 11 a.m. to 10 p.m., seven days a weekend from early spring to the end of October.

Council Liaison Adams asked if the structure remained on site year around. Mr. Drummond said both trolleys are winterized and remain on site.

Chairman Dyb noted that the existing trolleys are not a destination in themselves and is concerned that the site adjacent to City Hall could become one which raises issues in terms of parking. Mr. Drummond believes that ninety percent of the business would come from those already using the trail and is not looking to create car traffic.

Council Liaison Adams informed the Commission that the Park Committee and City Council are looking to change the area adjacent to the proposed site, creating a more park like atmosphere. He said a lot of the existing parking would be removed from the site.

Chairman Dyb discussed the hours of operation and signage, noting that the pictures submitted by Mr. Drummond showed a number of lit signs. He said the city currently has ordinances limiting the use of lighted signs. Mr. Drummond said he could look at altering the hours of operation. He said the trolley could be closed at sunset and noted he did not propose any lighting outside the trolley itself.

Commissioner Sparber commented that the Council could have a political issue with the residents of the Cottagewood neighborhood.

Commissioner Linder said he’s all for the concept, though he’s skeptical of the location being discussed by Mr. Drummond. He thinks that amending the ordinance to adequately and fairly address concession uses of this type will be difficult.

Commissioner Werneiwski agreed and added that when he uses the trail, the thought of going to the Cottagewood Store never enters his mind. Mr. Drummond said that supports his theory that his base would be different from that of the store. Even so, Mr. Drummond understands there will be resistance from the store.

Commissioner McKinney said he’s opposed to any concept that allows a private, for profit enterprise to use city owned land to conduct their business. Commissioner Nelson understands McKinney’s concerns, but still supports the concept.

Mr. Drummond noted that the City of Excelsior receives many positive comments on the trolleys.

Commissioner Linder said he views the concept as something that would provide a service to the residents of Deephaven.

Commissioner McKinney discussed his concerns about the use of the property and the trash it could generate. He used examples of other areas frequented by the public where trash has become an issue. Mr. Drummond said he would not generate the same amount of traffic and noted his employees are responsible and would clean up the site on a daily basis.

Commissioner Brandt said there are a lot of pros and cons with the concept, but questioned the Planning Commission’s role in making a determination of the appropriateness of allowing private uses on public property. She agrees that the business would draw the majority of it customers from those already using the path, but knows there will still be opposition from the Cottagewood Store. She thinks the concept is great, but is still unclear on the boundaries of the Planning Commission to act on such a request at this time.

Chairman Dyb said he is willing to consider the concept, even though he has serious concerns about semi-permanent commercial structures on city property. He would also like the opportunity to gauge the opinions of residents.

Zoning Coordinator Karpas asked about Mr. Drummond’s timeline. Mr. Drummond said he would like to be able to begin operation as early as April 2008. Karpas said the reason he asked was due to the time required by the city to consider the concept and, if supportive, amend its ordinance.

Karpas asked Council Liaison Adams his thoughts about the process since staff would not want to engage the City Attorney and begin incurring his costs without first determining the Council’s willingness to support the concept. Adams agreed, but said it would be helpful for the Planning Commission to share its thoughts with the Council on the concept.

ACTION: Motion by Commissioner Nelson to recommend that the City Council consider amending the city ordinances to permit private, for profit uses on city owned park lands, in the form of concession sales. Commissioner Werneiwski seconded the motion. Motion carried 5-2. Commissioners Brandt, Dyb, Linder, Nelson and Werneiwski voted in favor of the motion. Commissioners McKinney and Sparber vote nay.

Ordinance – Discuss draft Stormwater Management Ordinance.

Karpas discussed the draft copy of a proposed Stormwater Management Ordinance. The purpose of the proposed ordinance is to regulate land-disturbing activities that may have an adverse impact on local drainage patterns and on water quality in the city. The ordinance requires that best management practices be employed in all construction projects and that a plan be submitted for review for all projects disturbing more than one acre.

He said the city is mandated under its Minnesota Pollution Control Agency’s NPDES Phase II Stormwater Management Permit and Minnesota State Statutes, through the Comprehensive Plan, to adopt a comprehensive stormwater management plan, which includes a Stormwater Management Ordinance.

Chairman Dyb said he had a number of concerns or questions about the ordinance and its relevance to the City of Deephaven.

Commission Werneiwski said there are issues with the ordinance in that it does not follow exactly the State’s general stormwater permit. He said the ordinance has some requirements that don’t need to be included and others that aren’t included that need to be.

The Planning Commission discussed the NPDES Phase II permit and the basic requirements, of which the proposed ordinance is part of.

Commissioner McKinney said he would like to see language included to address the mud created by well drilling. He surmised the reason it’s not included in the proposed language is because the language was taken from a city that has municipal water.

Commissioner Brandt asked if the ordinance or NPDES permit covered items such as pool drainage. Werneiwski said it does not.

Staff said he would work with Commissioner Werneiwski to retool the ordinance to address the general requirements of the State and bring it back to the Commission.

LIAISON REPORT

Council Liaison Adams said the Council took action on the request by Mark and Julie Klauer, 4635 Old Kent Road, for a detached accessory structure. He said the request was discussed at two meetings since there was a Councilmember absent at the first meeting and there would have been a tie vote on the request, essentially equaling a denial. In the end, the request was approved by a 3-2. He noted he voted in favor of the request and his support was based on the fact that there would be no effect on the adjacent property. He said the adjacent property was unique in that there was limited development potential on the lot and the proposed encroachment was in an area far removed from the existing development.

He said the Council and Park Committee has been working on a plan for the dirt lot adjacent to City Hall as he previously mentioned. Chairman Dyb asked if any type of consensus has been reached. Councilmember Adams said a number of suggestions have been discussed, but the general concept has centered on not having the property look like a junkyard.

OTHER BUSINESS

Commissioner Brandt discussed the lack of regulation of play systems and said she was confused at the threshold between what is considered a play structure and what is considered an accessory structure. She compared an existing play structure on Linwood Road to the structure proposed by the Rappaports. She would like clarification on why one is viewed differently than the other.

Zoning Coordinator Karpas said it’s a matter of perception. If someone were to view each property it would be clear that the structure on Linwood Road is a play structure, it would not be as clear on the Rappaport property.

Karpas agrees the city should investigate the regulation of play structure due to the complex nature of today’s structures. He said he would look into how other cities regulate them and bring the issue back to the Commission.

ADJOURNMENT

Motion by Chairman Dyb to adjourn the meeting. Commissioner McKinney seconded. The motion carried 7-0. The meeting adjourned at 9:35 p.m.

Respectfully submitted,

Gus Karpas

Zoning Coordinator