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HomeMy WebLinkAbout11-148 Bluffs of Candy Cove Plat 4646 Dakota Street SE Prior Lake, MN 55372 R ESOLUTION 11 - 148 A RESOLUTION APPROVING THE COMBINED PRELIMINARY AND FINAL PLAT OF “ THE BLUFFS OF CANDY COVE ” AND SETTING FORTH CONDITIONS TO BE MET PRIOR TO RELEASE OF THE FINAL PLAT Motion By: Hedberg Second By: Keeney WHEREAS, The Prior Lake Plann ing Commission c onducted a public hearing on August 8 , 20 11 and continued the public hearing to September 12, 2011 , to consider an application from Jason Miller for the combined preliminary and final plat of “ The Bluffs of Candy Cove ”; and WHEREAS, Notic e of the public hearing on said combined preliminary and final plat was duly published and posted in accordance with the applicable Minnesota Statutes and City of Prior Lake Ordinances; and WHEREAS, All persons interested in th e application for the plat were afforded the opportunity to present their views , comments and objections related to the combined preliminary and final plat of “ The Bluffs of Candy Cove ” for the record at the public hearing conducted by the Planning Commission; and WHEREAS, The Planning Commission has reviewed the combined preliminary and final plat and corresponding variance requests according to the applicable provisions of the Prior Lake Zoning and Subdivision Ordinances and found said combined preliminary and final plat to b e consistent with said Ordinances, including nine (9) variances; and WHEREAS, The Planning Commission recommended the City Council approve the preliminary and final plat subject to the applicant submitting a plan for a driveway access that: (1) does not require the removal of the existing retaining wall on City - owned property to construct the proposed driveway access to the plat of The Bluffs of Candy Cove; (2) meets the engineering standards set out in the Public Works Design Manuel, and (3) receives t he approval of the City Engineer; and WHEREAS, The Prior Lake City Council considered the application for the combined preliminary and final plat approval for “ The Bluffs of Candy Cove ” on November 7 , 2011 and reviewed the preliminary and final plat ap plication pursuant to the criteria in the Zoning and Subdivision Ordi nance ; the record before it and the recommendation of the Planning Commission ; and WHEREAS The City of Prior Lake owns a parcel of property (PID 25 - 936 - 075 - 0) (hereinafter referred to a s the “City - owned property”) located at the intersection of Candy Cove Trail and MN Trunk State Highway 13 which provides access for two current residential properties and is intended to provide access for the subject plat; and WHEREAS Construction of a ccess to The Bluffs of Candy Cove across the City - owned property requires balancing the interests of the applicant with the interests of the adjacent property, Lot 31; and Phone 952.447. 9800 / Fax 952.44 7 . 4245 / www.cityofpriorlake.com WHEREAS On May 20, 2002 the City Council passed Resolution 02 - 74 approving varia nces to allow construction of a single family home on Lot 31, CANDY COVE PARK and a driveway and retaining wall on the City - owned property; and WHEREAS, Resolution 02 - 74 imposes a condition that “[T]he subject site shall be developed as shown on the at tached survey to ensue additional variances are not required….”; and WHEREAS, The survey attached to Resolution 02 - 74 showed the location of a driveway and retaining wall on the westerly boundary of the City - owned property, but did not grant the owner of Lot 31 an easement over or across the City - owned property; and WHEREAS, The owner of Lot 31 constructed the driveway and retaining wall ( hereinafter “retaining wall”) on the City - owned property consistent with the condition in Resolution 02 - 74 and the survey attached thereto; and WHEREAS, The location of the retaining wall interferes with the applicants preferred location to construct a driveway and appurtenant structures to access The Bluffs of Candy Cove ; and WHEREAS , The applicant and owne r of Lot 31, CANDY COVE PARK attempted unsuccessfully to negotiate an agreement to allow the applicant to remove the retaining wall and grade the City - owned property to construct a driveway and appurtenant structures for access to The Bluffs of Candy Cove , according to the applicants preferred driveway design option; and WHEREAS , The City Engineer prepared two (2) possible designs for the driveway access, for the sole and limited purpose of illustrating that options for access exist that do not require t he removal of the retaining wall; and WHEREAS, The applicant ’ s preferred driveway design option provides for: (1) substantially lower and less expensive retaining walls and (2) leveling the topography , than other alternative design options; and WHER EAS, The Prior Lake City Council de sires to approve a grading plan for the driveway and appurtenant structures over, on and across the City - owned property that will best protect the health, welfare and safety of the public and residents that will meet the following six (6) objectives. The grading plan must : (1) be in the best interest of the public; (2) be in the best interest of the neighborhood; (3) promote and protect public safety; (4) minimize and mitigate the traffic noises generated from vehicles us ing Highway 13; (5) promote residential development on topographically challenged lake shore property; and (6) treat the applicant and the owner of Lot 31 as equitably as possible considering the circumstances ; and WHEREAS, The City Council believes a g rading plan that allows for minimal wall height, increases visibility on Candy Cove Trail and achieves noises mitigation by providing for and maintaining a buffer using a combination of landscaping and recognized buffering techniques will achieve the first five (5) objectives set forth in the recital immediately above; and WHEREAS, In order for the grading plan to meet the Council’s sixth (6 ) objective, to treat the applicant and th the owner of Lot 31 equitably , the Council believes it is necessary to i mpose conditions on the location of the driveway access; and 2 WHEREAS, The City Council has the authority to impose reasonable conditions on its approval of a combined preliminary and final plat. NOW THEREFORE , BE IT HEREBY RESOLVE D BY THE CITY COUN CIL OF PRIOR LAKE, M INNESOTA as follows : 1) The recitals set forth above are incorporated herein and considered findings that explain and support the rational and basis for the additional findings, conditions, variance and approvals set forth below . 2) The Cit y Council makes the following additional findings: a) T he p roperty being subdivided to create the Plat known as The Bluffs of Candy Cove was originally platted in 1921 and consists of five (5) single family lots (Lots 32 - 36 Plat of Candy Cove Park) (herein a fter “the Property” or “the Plat . ”) b) The Property remains in common ownership. c) In 1999 the City Council passed Ordinance 99 - 18 providing that all substandard lots in common ownership would be combined to create a conforming lot. Lots 32 - 36 are each substan dard. The Plat of The Bluffs of Candy Cove creates three (3) lots and grants variances to each lot as described in 4 (d) below. d) The access to the Property was c hanged in 19 63 when the State of Minnesota (MnDOT) condemned a portion of the Property for the construction of State Highway 13. e) MnDOT conveyed a parcel of property remaining after the c onstruction of State Highway 13 to the City (the City - owned p roperty .) f) A ccess to the P lat of The Bluffs of Candy Cove is through the City - owned p roperty. The City m ust and has agreed to provide the applicant reasonable access to the applicant’s property across the City - owned property. Reasonable access is access that meets the six (6) objectives setout by the City Council in the recitals above. g) The topography of the City - owned property requires significant grading and the construction of retaining walls in order to construct a driveway access to the Property. h) Development of the Property is challenging because of its topography, location and the impact of the bluffs o n lot size and setback requirements in the Shoreland District , all of which contribute to creating practical difficulties that warrant the approval of the variances set out below and other considerations provided for herein . i) The City Staff attempted unsucc essfully to facilitate an agreement between the owner of Lot 31 and the applicant involving the removal of the retaining wall. j) The existing hill , nearest Lot 31 on the City - owned property , creates a buffer from the traffic noise generated by vehicles using Highway 13 for residents living on Candy Cove Trail. k) The applicant’s grading plan for the driveway and appurtenant structures involves removing a significant portion of the hill and may result in increased traffic noise for some properties along Candy Cov e Trail unless mitigation measures are installed to minimize the impact of the hill ’ s removal. l) T he applicant will be benefited by a decision of the Council that permits the removal of the retaining wall and construction of the applicant’s preferred design option because the applicant has represented to the City that the applicant’s preferred design options is the least expensive to construct. m) If the applicant elects to construct a driveway and appurtenant structures that require the removal of any or all of the retaining wall or result in damages to the owner of Lot 31’s driveway or retaining wall, any damages , costs, legal fees, expenses or liability that results from the removal or damage to the retaining wall and driveway should be born entirely by the ap plicant and not by the City. n) In order to treat the applicant and the owner of Lot 31 equitably and meet the sixth (6 ) objectives the th Council set for itself in the seventeenth (17 ) recital above, t he applicant must either compensate the owner of Lot 31 fo r the reasonable cost of the retaining wall removed or disturbed by applicants decision to proceed with applicants preferred design option or agree to defend, indemnify and hold the City harmless 3 from and against any and all claims and damages; including b ut not limited to: (1) any insurance deductibles the City may be required to pay ; (2) reasonable attorneys’ fees incurred directly by the City or incurred by the League of Minnesota Insurance Trust on behalf of the City; and (3) all costs and disbursements awarded by a court. If the applicant elects to compensate the owner of Lot 31 the compensation shall be based on the number of square feet removed or disturbed by the applicant, as determined by the City Engineer. The cost of the retaining wall per squa re foot is established at $22.00. If the applicant elects to offer payment to the owner of Lot 31 for the amount of retaining wall removed or damaged, based on $22.00 per square foot, the payment must be conditioned upon applicant securing from the owner of Lot 31 a document, in a form acceptable to the City Attorney , releasing and waiving all claims against the City arising out of or relating to the City Council’s approval of this Resolution allowing the removal of all or a portion of the retaining wall c onstructed by the owner of Lot 31 on the City - owned property. o) The City Engineer determined the cost per square foot of retaining wall by reference to the cost of the retaining walls in the 2011 Street Reconstruction Project and by obtaining verbal quotes f rom reputable landscape contractors known to the City Engineer in his professional capacity . p) T he method used by the City Engineer to determine the cost per square foot for the retaining wall and the cost of $22.00 per square foot are both reasonable. q) If fe asible t he a p plicant and the owner of Lot 31 should renew their efforts at a dialog to negotiate an agreement regarding the location of the retaining wall , but the approvals and conditions provided for in this Resolution are not dependent on whether a dial og occurs or an agreement is reached because such events are beyond the control and not within the authority of the City Council to require. 3) The preliminary and final p lat of “ The Bluffs of Candy Cove ” is approved subject to the conditions set forth in th is R esolution . The se conditions shall be met prior to release and recording of the final plat including : a) T he applicant shall address all engineering comments as outlined in the memorandum from the City Engineer dated October 17, 2011. b) T he following pendin g variances are granted: i) A variance to allow a structure to be located in the bluff impact zone on Lots 1, 2, & 3. (Section 1104.303) . ii) A 5 foot variance from the required minimum 5 foot driveway side yard setback for Lots 1, 2, & 3 (Section 1107.205 (1)). iii) A 25 foot variance from the minimum 25 foot front yard setback required in the R - 1 Zoning Use District for Lot 1 (Section 1102.405 (3)). iv) A 32 foot variance from the minimum 75 foot lake setback required in the Shoreland District for Lot 2 (Section 1104.308 . (2)). v) A 10 foot variance from the minimum 10 foot east side yard setback required in the R - 1 Zoning Use District for Lot 2 (Section 1104.405 (3)). vi) A 10 foot variance from the minimum 10 foot west side yard setback required in the R - 1 Zoning Use District for Lot 2 (Section 1104.405 (3)). vii) A 20 foot variance from the minimum 25 foot front yard setback required in the R - 1 Zoning Use District for Lot 3 (Section 1102.405 (3)). viii) A 45 foot variance from the minimum 75 foot lake setback required in the Shoreland Di strict for Lot 3 (Section 1104.308. (2). ix) A 4,923 square foot variance from the required minimum lot area for a riparian residential lot on a General Development Lake within the Shoreland District (Section 1104.302 (3)). c) The applicant shall enter into a dev elopment contract with the City and pay any required development fees. d) The applicant shall obtain required permits from all applicable governmental agencies prior to final plat approval. e) The final plat shall be recorded at Scott County within 60 days of ap proval by the City Council. 4 f) The City will grant the applicant a driveway easement over, across and on the City - owned property subject to the following conditions: i) The applicant shall enter into an “AN AGREEMENT GRANTING A NONEXCLUSIVE DRIVEWAY EASEMENT AND PROVISING FOR THE USE AND MAINTENANCE OF THE DRIVEWAY EASEMENT.” ii) If the location of the driveway access involves the removal or disturbance of all or a portion of the retaining wall constructed by the Owner of Lot 31 the applicant shall: (a) pay the owner of Lot 31 an amount, determined in the manner provided for above , to compensate the owner of Lot 31 for the reasonable cost incurred to construct the retaining or (b) indemnify and hold the City harmless for any damages, attorneys fee and costs levied, im posed or incurred by the City arising from litigation brought by the owner of Lot 31 against the City relating to the driveway or retaining wall regardless of the nature of the claim. If the applicant fails to either pay the owner of Lot 31 or indemnify a nd hold the City harmless in the event of litigation and/or liability the City shall be entitled to use proceeds from applicant’s Letter of Credit provided with the Development Contract to (1) defend, indemnify and hold the City harmless, as described in C ondition “ 2 n” above or (2) pay the owner of Lot 31 . (1) The grading plan must be approved by the City Engineer subject to the criteria set out in the Public Works Design Manu al and the City Engineer’s best professional judgment. (2) The grading plan for the City - o wned property must include a survey, prepared by a Registered Professional Engineer, describing the location of the driveway access and appurtenant structures, on the City - owned property and the location of any temporary construction easement that may be n ecessary if the work to construct the driveway access will temporarily involve Lot 31’s driveway. The applicant shall pay the owner of Lot 31 an amount equal to the amount the City would pay a private property owner for a temporary construction easement i f Lot 31’s driveway is impaired by applicant ’ s construction. The amount per square foot for the temporary construction easement shall be established by the City Engineer based on the amount paid by the City for temporary construction easements purchased b y the City on recent projects. iii) If the applicant elects to locate the driveway access in a location that does not involve the removal or disturbance of all or a portion of the retaining wall and/ or does not interfe re with the driveway to Lot 31 the payment and indemnification provisions set out in paragraph 2 n a bove shall not apply. The grading plan for the driveway access is subject to the following conditions: (1) The grading plan must be approve d by the City Engineer subject to the criteria set forth in the Public Works Design Manuel and the City Engineer’s best professional judgment. (2) The grading plan for the City - owned property must provide a survey, prepared by a Registered Professional Engineer, describing the location of the driveway access and appurtenan t structures on the City - owned property. iv) The indemnification and hold harmless provision in the “Agreement Granting Nonexclusive Driveway Easement and providing for the Use and Maintenance of the Driveway Easement” shall be unaffecte d by the language in pa ragraph 2i a bove . PASSED AND ADOPTED THIS 19 DAY OF DECEMBER , 2011. TH YES NO Myser X Myser Hedberg X Hedberg Erickson X Erickson Keeney X Keeney Soukup X Soukup ______________________________ Frank Boyles, City Manager 5