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HomeMy WebLinkAbout09/23/20022. 3. 4. REGULAR PLANNING COMMISSION AGENDA MONDAY, SEPTEMBER 23, 2002 Fire Station - City Council Chambers 6:30 p.m. Call Meeting to Order: Roll Call: Approval of Minutes: Consent Agenda: Public Hearings: Case File #02-098 Janice Galloway is requesting a conditional use permit to allow retail sales in the C-5 zoning district. Case File #02-095 Thomas Knight is requesting variances from the minimum 7,500 square foot lot area and 50 foot lot width for nonconforming shoreland lots, the minimum 75 foot Shoreland setback, the maximum 30 percent impervious surface coverage for shoreland lots, the maximum 35 foot structure height, and maximum 10 percent residential driveway slope for the construction of a single family dwelling located at 15747 West Avenue. Old Business: Case File #02-07 - 212 Development is requesting consideration of a Preliminary Plat and Preliminary PUD Plan to be known as Crystal Bay Townhomes consisting of 10.62 acres to be subdivided into lots for 26 townhomes. This property is located on the south side of CSAH 82, east of Fremont Avenue and V2 mile west of CSAH 21. Case File #02-88 Richard Gau is requesting a 13.3 variance from the required minimum 25 foot front yard setback for the construction of entry addition to an existing single family dwelling and a three foot variance from the maximum 24 feet of driveway width on property located at 16994 Monroe Avenue SW. 7. New Business: Discussion on an amendment to the Zoning Ordinance concerning fences on corner and riparian lots. Announcements and Correspondence: Adjournment: 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (952) 447-4230 / Fax (952) 447-4245 AN EQUAL OPPOR'rUNITY EMPLOYER PLANNING COMMISSION MINUTES MONDAY, SEPTEMBER 9, 2002 1. Call to Order: Chairman Stamson called the September 9, 2002, Planning Commission meeting to order at 6:30 p.m. Those present were Commissioners Atwood, Criego, Lemke, Ringstad and Stamson, Community Development Director Don Rye, Planning Coordinator Jane Kansier, Planner Cynth/a Kimhoff, City Engineer Sue McDermott and Recording Secretary Kelly Meyer. 2. Roll Call: Atwood Present Criego Present Lemke Present Ringstad Present Stamson Present 3. Approval of Minutes: The Minutes from the August 26, 2002, Planning Commission meeting were approved as presented. 4. Consent: NONE. 5. Public Hearings: Commissioner Stamson read the Public Hearing Statement and opened the meeting. A. Case File #02-07- 212 Development is requesting consideration of a Preliminary Plat and Preliminary PUD Plan to be known as Crystal Bay Townhomes consisting of 10.62 acres to be subdivided into lots for 26 townhomes. This property is located on the south side of CSAH 82, east of Fremont Avenue and ½ mile west of CSAH 21. Planning Coordinator Jane Kansier presented the Planning Report dated September 9, 2002, on file in the office of the City Planning Department. 212 Development, LLC, has applied for approval of a development to be known as Crystal Bay on the property located south of CSAH 82, directly east of Fremont Avenue and approximately ½ mile west of CSAH 21. The application includes the following requests: · Approve a Planned Unit Development Preliminary Plan; · Approve a Preliminary Plat. L:\02FILES\02planning comm\02peminuteshMN090902,doc 1 Planning Commission Meeting September 9, 2002 The proposal calls for a townhouse development consisting of 26 dwelling units on 10.62 acres. The development also proposes private open space and 26 boat slips for the use of the residents. This item was originally scheduled for a public hearing on August 12, 2002. However, the Planning Commission continued the public hearing to September 9, 2002, to allow the developer to address the issues raised by staffin the original staffreport. The developer also conducted another neighborhood meeting on August 28, 2002. Following the August 12, 2002, Planning Commission meeting, the developer was asked to submit any revised plans to the staff by Monday, August 26, 2002. The purpose of the deadline was to allow staff the time to review any new information. On Friday, August 30, 2002, after business hours, the staff received the attached fax from the developer outlining changes in the proposed plan. The listed changes include the following: · A reduction in the number of units from 26 to 24. · The elimination of the through street and creation of two cul-de-sacs. · A change in the alignment of the easterly cul-de-sac. · The removal of the boat launch/road to the lake. · The reduction in the number of boat slips from 26 to 21. · An increase in the setback from the Ordinary High Water Elevation. · The addition of a privacy fence along the east property line. These changes appear to address several of the issues raised by the staff. However, as of the date of the report (September 4, 2002) staff had only received a fax reduction of the proposed plan, so they were unable to verify the changes and the affect on the plan as it relates to the ordinance requirements. If the Commission feels the proposal should proceed to the Council, the staff would recommend the following conditions be attached: 1. The density in tier 1 of the development must be reduced so it is consistent with the Zoning Ordinance requirements. 2. The number of slips must be reduced to 20, the maximum density allowed in tier 1. 3. The developer must provide calculations to determine whether the proposal is consistent with the 25% impervious surface requirement in each tier. 4. The intersection of Crystal Bay Drive and CSAH 82 must be revised so it is aligned with Fox Tail Trail and is perpendicular to the County right-of-way. 5. The extension of Crystal Bay Drive from CSAH 82 to Fremont should be eliminated. Access should be provided from Fremont Avenue and CSAH 21 with 2 cul-de-sacs. L:\02FILES\02planning comm\02pcminutes~MN090902.doc 2 Planning Commission Meeting September 9, 2002 6. The tree inventory must be revised to include only those trees considered significant in the Zoning Ordinance. 7. The landscaping plan should be revised to meet all ordinance requirements. 8. The private streets must be platted as outlots. An 11' wide drainage and utility easements must be provided on either side of the outlot. 9. The developer must provide easements for the storm water pond. 10. Address the comments identified in the memorandum fi:om Larry Poppler, Assistant City Engineer, dated July 17, 2002, and from Andi Moffet and John Mackiewicz of WSB, dated July 19, 2002. Comments from the public: Jeff Broberg, Vice President ofMcGhie Betts, Inc., representing 212 Development, LLC, discussed the original project design and the latest revised plan, indicating the changes in the storm water plan, roadway configuration, number of boat slips and calculation of the size of the site. He believed the issues raised during the neighborhood have been 95% addressed. Broberg further discussed the tree inventory and the effort to preserve many of the existing trees on the site, removal of the originally proposed boat ramp, and maintaining the character of the site. He also discussed the issues that can not be solved, including the traffic issues raised by the neighbors. He noted that reconfiguring the original street plan into cul-de-sacs was a better design and could best address the traffic concerns. The plan requests 24 foot wide streets with no parking on either side which is a modification from the standards. The decrease in street width allows a reduction in impervious surface and prohibits parking on the street. Broberg pointed out the need for modifications from the front and side street setbacks in order to preserve the 112.5 foot setback from the lake, and the impervious surface difficulty within Tier 2. Broberg asked for approval of the PUD understanding the conditions imposed by staff. Ringstad questioned the price of the townhomes, the height of the privacy fence along the easterly portion of the property, and the size and number of the evergreen trees proposed along County Road 82. Broberg responded the price point for the townhomes is in excess of $700,000 and is targeted for empty-nesters or previous Prior Lake homeowners with ties to the community. He noted that all along the project has been designed to maintain the natural features of the site. Also, the privacy fence will be a standard 8-10 foot fence, and with the elevation along the easterly side it should provide an adequate barrier. Kansier explained the provisions of the landscape ordinance. New evergreen trees must be a minimum of 6' in height, and at least 20% of the evergreens must be oversized, or 8' in height. Criego questioned the trail plan. L:\02 FILES\02planning ¢omm\02pcminutes~vlN09Og02.doc 3 Planning Commission Meeting September 9, 2002 Broberg explained the pathways are intended for foot traffic and access to the boat dock and common areas for the homeowners only. The trails consist of grass and bark trails. Criego questioned the ability to gain access across the cul-de-sacs. Broberg responded County Road 82 provides a secondary access within immediate reach. Criego asked how the size and configuration of the boat dock was anived at. Broberg explained they had reviewed lake depths and the shoreline configuration. Comments from the public: Tim Finn, 15672 Fremont Avenue NW, was concerned the unit along Fremont Avenue is too close to the roadway for the City to ever install sidewalks. Another concern was the traffic turning on to Fremont Avenue and then trying to make a turn into the development. Believed there is just not room for stacking off of County Road 82. Finn felt cars would make u-tums in the Island View Association parking lot. Suggested Fremont Avenue and County Road 82 both need to be widened. Asked if the impervious surface standard is 25% or 30%. Kansier explained the PUD is in a Shoreland district, therefore, the development is required to meet the higher standard not to exceed 25% per tier. The overall impervious surface requirement is 30%. Finn further discussed the number of boat slips and the relation to other docks in the area. He was concerned there may not be adequate parking and the overflow would go onto Fremont Avenue. Did not believe the project really gives anything back to the community. Kyle Schroeder, 15557 Highland Avenue NW, stated there is significant concern among the neighbors. Applauded the developer on holding the second neighborhood meeting and addressing the issues raised during those meetings. Echoed the concerns of Tim Firm that the project does not give anything back to the neighborhood. Believed there are significant traffic issues that need to be addressed along County Road 82. Repeated the concerns for the access onto Fremont Avenue. Also expressed concerns with the abatement of the noise from the highways. Schroeder suggested possibly adding a fence for the area and reducing the hours of operation during the construction. He repeated the need for large-scale trees in the replacement plan. Schroeder asked if the covenants indicate the homeowners association can remove trees. Kansier said it is in the best interest of the association, just as in a single-family home development, to maintain the integrity of the property. She had not reviewed the covenants in detail enough to comment on the specifics. Schroeder stated that there should be no mnoffinto the lake. L:\O2FILES\O2planning comm\02pcminuteshMN090902.doc 4 Planning Commission Meeting September 9, 2002 Tom Sheely, 15601 Highland Ave. NW, believed the intc~nt of the PUD is not to increase the revenue of the developer or to increase the tax base of the City. Further noted that with respect to docks, the number of slips should correspond to the phased construction. Suggested the Planning Commission recommend to the DNR that signage be installed within the bay in order to prevent water hazards. Added the final covenants should be part of the final plan approval and preserve the trees in the area. Sheely wanted to preserve trees rather than install an obtrusive fence. He also stated his concern with the hours of construction. Mark Nelson, 14567 Fremont Avenue NW, complimented the developer on the quality of previous projects and for addressing many of the issues on the neighborhood. Believes the essential issue is putting too much into too little space. Nelson repeated traffic in the area is a major concern on an already congested road system. He also noted the configuration of the boat slips makes the lake even more dangerous. Nelson pointed out there is nothing that prevents the association from adding a boat ramp later. Broberg discussed the plan for noise abatement with trees as well as the configuration of the units. Noted the height of the units would also provide additional abatement of noise. Advised the intent of the covenants is to limit changes to the approved PUD, but the issue later on would be enforcement. The trade off in the smaller street width is less impervious surface. Broberg felt even though the impervious surface calculation is over the 25% in Tier 2, consideration should be given because the drainage is away from the lake. Rye asked for an estimate of the distance between the proposed dock and the Island View Association dock. Broberg responded it would be approximately 275 feet. Atwood questioned the project timeline. Broberg responded the construction would not begin until 2004 and Phase I would be completed that year. Lemke questioned the impervious surface calculations with respect to the road right of way. Broberg said the net land area, loss areas to be dedicated for CSAH 82, was used to calculate the impervious surface area. Jim Schilling, 15629 Highland Ave, commented that lakeshore quality is the biggest issue and the Planning Commission should consider the ratio of number of boats compared to area of lakeshore. Comments from the Commissioners: Crlego: · Asked for an explanation for the number of slips and the comparison. · Kansier responded the number of slips is based on state law and the number of units in Tier 1. In this case the maximum number of units is 21 in Tier 1, and thus the number of slips is 21. It depends upon the type of development and how the land is being developed. The City ordinance mirrors exactly the adopted State rules. L:\02FILES\02planning cornm\02pcminutes~vlN090902.doc 5 Planning Commission Meeting September 9, 2002 · Commented he is concerned with the safety issues within a confined bay of this type. Believed the dock configuration is an important component and that some recommendation by the City should be forwarded to the DNR. Asked the developer where common ownership is versus ownership by private homes. · Broberg explained the units will have very small yards with private ownership. The primary area, including the pathways, will be in common ownership. Broberg also explained the process for snow removal, advising the only common area is to the cul-de-sac. · Expressed concern there is no emergency vehicle access to units 9 and 10 if the Fremont access is closed. · Suggested the pathway be increased to be a secondary emergency access. · Broberg noted the challenge then becomes the impervious surface calculation. · Questioned if the City was aware of the plans for County Road 82. Kansier responded the roadway had not yet been designed. · Questioned if the right-of-way donation is primarily on County Road 82 and what the normal process for acquiring roadway would be. Kansier said the City and/or County would have to pumhase the road right-of-way from the property owner. · Believed this PUD had substantial merit with respect to shoreline because of its 112.5 foot setback, as well as preservation of the bluff area, and the right-of-way donation along County Road 82. · If the project was not a PUD, and single-family homes were the method of development, approximately 35 homes could be constructed. This type of development really saves land. · Asked if the length of the cul-de-sacs are within standards. · Kansier advised the standard is 500 feet and these appear to be within that standard. The width of the street is 24 feet and the subdivision ordinance allows approval of a lesser width in environmentally sensitive areas. · Questioned if parking could be utilized along the private drive. Concerned with the impervious surface coverage, but the dedication of the fight-of-way be considered. · Rye indicated the amount of parking is similar to many single-family neighborhoods. Also noted the DN-R may have an issue with making an allowance for the right-of-way. Lemke: · Asked about the allowance for sidewalks along Fremont Avenue. · Kansier responded there is approximately 19 feet and would be adequate for sidewalks along one side of the street. · Agreed with many of the comments of Commissioner Criego in that there is a lot of benefit in the developer's effort to preserve the natural lakeshore and preservation of trees. · Believed the configuration of the boat slips are the primary issue with the development. L:\02FILES\02planning comm\02pcminutes~VlN090902.doc 6 Planning Commission Meeting September 9, 2002 Atwood: · Believed the plan was very thoughtful and complimented the developer. Asked the distance from County Road 82 and the proposed access from Fremont. · Rye responded it was approximately 275 feet. · Criego noted that with the Glynwater development, there was much discussion about access to Fremont Avenue and the distance of the access from the intersection with CSAH 82. Ultimately the right-of-way from Glynwater was platted but the street was not built from Fremont. · Believed the neighborhood has valid concerns about the outlot being used as a construction vehicle tm-around. · Supported the project and the recommendation by staff. Ringstad: · Believed this development is a strong example of compromise on behalf of the developer and the neighborhood. · Further commented that if the issue of hours of construction is to be addressed, it should be addressed City-wide and not special for this development. · Also supported using the additional 25 feet of right-of-way in the impervious surface calculation. · Supported the staff's recommendation. Stamson: · Generally supports the project and the benefits it gives in terms of lakeshore preservation. · Believe the developer should be given a credit for the additional right-of-way dedication but other than that needed to meet the impervious surface standard, and the construction hours not be addressed as a special allowance. · Suggested the covenants be reviewed by the Planning Commission. Criego: · Suggested direction be given to staff that a plan be brought back to the Planning Commission at the next meeting. Lemke: · Did not see that extending the public hearing is necessary. · Concerned the timeline then dictates very little time for the City Council to act. Atwood: · Did not see a need to extend the public hearing and many of the issues are covered under the staff conditions. MOTION BY CRIEGO, SECOND BY STAMSON TO TABLE THIS ITEM UNTIL THE SEPTEMBER 23, 2002 MEETING TO ALLOW THE DEVELOPER TO SUBMIT REVISED PLANS CLARIFYING THE FACTUAL PO1NTS DISCUSSED. L:\02FILES\02planning comm\02pcminutes~VIN090902.doc 7 Planning Commission Meeting September 9, 2002 VOTE: Ayes by Stamson, Lemke, Criego, Ringstad and Atwood, the motion carried. B. Case File #02-88 Richard Gau is requesting a 13.3 variance from the required minimum 25 foot front yard setback for the construction of entry addition to an existing single family dwelling and a three foot variance from the maximum 24 feet of driveway width on property located at 16994 Monroe Avenue SW. Planner Cynthia Kirchoffpresented the Planning Report dated September 9, 2002, on file in the office of the City Planning Department. The Planning Department received a variance application from Richard Gan to permit a 6 foot eave/overhang and 8 foot stoop to encroach into a required front yard setback on the property located at 16994 Monroe Avenue SW. The existing single family dwelling maintains a 19.9 foot front yard setback. The steps of the stoop are proposed to be 11.7 feet from the front property line and the eave/overhang over the garage is proposed to be 14.1 feet from the property line abutting Monroe Avenue. In conjunction with the stoop and eave addition, the applicant is also increasing the width of the driveway to 27 feet. The project was started without a building permit. The applicant is requesting the following variances: 1) An 8.3 foot variance from the permitted 20 foot front yard setback for the construction of an 8 foot stoop and 6 foot overhang (Zoning Ordinance Section 1102.402: Dimensional Standards). 2) A 3 foot variance from the maximum width of 24 feet for residential driveways (Zoning Ordinance Section 1107.205. Driveways). Staffbelieved all nine-hardship criteria had not been met with respect to the requested variances to permit the 8 foot stoop, 6 foot eave/overhang, and 27 foot wide driveway. The applicant created the hardship by the design of the addition and the driveway. Staff could support a smaller front yard setback variance to improve the safety of the dwelling entrance, but not the proposal. The staff therefore recommended denial of the requested variances as proposed by the applicant. Lemke asked for clarification as to the side yard, front yard and rear yard. Kirchoff explained. Criego questioned how the City became aware of the violation. Kansier responded this was unknown to her, but upon investigation by City staff, a stop work order was issued. Comments from the public: Rick Gau, 16994 Monroe Avenue, indicated he had obtained a building permit and his intention was not to deceive anyone. Advised the awning, stoop and high-brow garage door was to mitigate the impact of snow melt in front of his garage and front door. Gau felt he was misled by the building staff and believed the 27-foot drive is necessary to L:\02FILES\02planning comm\02peminutes\MN090902.doc 8 Planning Commission Meeting September 9, 2002 adequately provide parking on his lot. There is no parking along the street. Noted that at this point he has spent a lot of extra money and time waiting for the process. Jim Petersen, 3338 Todd Road, advised that Rick had misinterpreted the extent of the building permit. Believed the additional driveway width was reasonable. Comments from the Commissioners: Ringstad: · Asked if discussion had taken place with the applicant as to a smaller setback, and if the photos brought in by Mr. Gau had some other type of circumstances other than the homeowners not getting caught. · Kansier advised no discussion had taken place with applicant regarding a lesser setback. There are quite possibly extenuating circumstances surrounding other properties, including being done prior to the ordinance, or that some lots may be nonconforming. Ringstad: · Did not believe the setback met the current hardship criteria. Would like to see additional conversations take place with staff. Atwood: · Sympathized with the neighborhood with respect to the parking issue, but could not support the request. Lerake: · Believed the request was reasonable. · Supported both requested variances. Criego: · Noted the 24-foot driveway width is calculated at the lot line and the driveway could be flared further into the lot, thus eliminating the variance for 27-foot of driveway width. Questioned the applicant if there was a railing and where the steps would be. · Asked for staff to clarify the difference between an awning and the proposed structure. · Gau explained the proposed improvement. · Kansier clarified that a stoop can be extended. · Believed the problem was difficult and the property was unique as a comer lot, but the hardship criteria need to be adhered to. · The project improved the aesthetics of the home, but there is no hardship. · In favor of the covering over the stoop, but the overhang of the garage does not meet the hardship. L:\02FILES\02planning comm\02peminutes~vlN090902.doc 9 Planning Commission Meeting September 9, 2002 Stamson: · Agreed with Comanissioner Criego that the parking issue can be addressed without a variance, and there is a safety issue for the front stoop. · Would support a covering not to exceed 4 feet over the stoop, and re-design the overhang of the garage. Ringstad: · Suggest tabling the issue to the next meeting. MOTION BY STAMSON, SECOND BY RINGSTAD TO TABLE THE ITEM TO THE SEPTEMBER 23, 2002 MEETING TO ALLOW THE APPLICANT AN OPPORTUNITY TO WORK OUT A SOLUTION WITH STAFF. VOTE: Ayes by Stamson, Lemke, Criego, Ringstad and Atwood, the motion cart/ed. 6. Old Business: NONE. 7. New Business: A. Case File #02-94 Wensmann Homes is requesting a Preliminary PUD Plan and Preliminary Plat (Jeffers South) for a mixed development consisting of 22 single family homes, 31 attached townhouse units and 28 attached condominium uses on 34.05 acres of land zoned R-1. Kansier reviewed the agenda item in connection with the staff report. Wensmann Realty, Inc., has applied for approval of a development to be known as Jeffers South on the property located west of CSAH 21, approximately V2 mile north of CSAH 82 and directly north of Wensmann 1st Addition and Regal Crest. The proposal calls for a mixed use development consisting of a total of 81 dwelling units on 23.69 net acres, for a total density of 3.42 units per acre. The proposed development includes 22 single family dwellings and 59 townhouse units in 45, three and four-unit buildings. The development also includes parkland and private open space. The Final PUD Plan is generally consistent with the approved preliminary plan. There are, however, some changes are required to the plan before final approval. These changes are required in order to be consistent with the approved preliminary plan, and to meet the conditions included as part of the preliminary plan approval. These include the following: 1. The developer must provide an access to the park on the west side of the site from Jeffers Pass. 2. The name of the cul-de-sac must be changed to a name more consistent with the street naming policy. 3. The developer must provide sign elevations for the monument signs. L:\02FILES\02planning comm\02pcmin utes~MN090902.doc l 0 Planning Commission Meeting September 9, 2002 4. Address the comments identified in the memorandum from the City Engineer dated May 23, 2002. Most of the changes require minor revisions to the plans. However, these changes must be made before the plan proceeds to the City Council for final approval. The Planrfing Commission must review the Final PUD and make a recommendation to the City Council. The staff suggests the following findings: 1. With the listed revisions, the Final PUD Plan is consistent with the approved preliminary plan. 2. The Final PUD Plan is consistent with the criteria for a PUD listed in Section 1106.100 and 1106.300 of the Zoning Ordinance. This plan is also consistent with the City Council findings listed in City Council Resolution #02-44. The staff also recommended approval of the Final PUD Plan be subject to the following conditions: 1. The following revisions must be made before the plan proceeds to the City Council: a. The developer must provide an access to the park on the west side of the site from Jeffers Pass. b. The name of the cul-de-sac must be changed to a name more consistent with the street naming policy. c. The developer must provide sign elevations for the monument signs. d. Address the comments identified in the memorandum from the City Engineer dated May 23, 2002. 2. The Final Plat and Development Contract must be approved by the City Council. 3. A signed PUD agreement must be approved by the City Council. 4. Upon final approval, the developer must submit two complete sets of full-scale final plans and reductions of each sheet. These plans will be stamped with the final approval information. Once set will be filed at the Planning Department and maintained as the official PUD record. The second set will be returned to the developer for their files. Kelly Murray of Wensmann Realty noted there is an issue with the trail access at Outlot A which they would suggest moving 200 feet to the north, while granting the City access across Outlot A. Commissioner Comments: Atwood: · Believed if staff is comfortable with the alternate trail connection, she is comfortable, and supports the staff recommendation. Ringstad: · Agreed. L:\02FILES\02planning comm\02pcminutesWiN090902.doc 1 1 Planning Commission Meeting September 9, 2002 Lemke: · Agreed. Criego: · Asked how the City assures the trail access is addressed during the development of the property. · Kansier said the staffwould require an easement be recorded with the Final Plat. Upon development of the adjacent property, a new access would be designated and the easement could be released. MOTION BY CRIEGO, SECOND BY ATWOOD TO APPROVE THE JEFFERS SOUTH PLANNED UNIT DEVELOPMENT. VOTE: Ayes by Stamson, Lemke, Criego, Ringstad and Atwood, the motion carried. 8. Announcements and Correspondence: Kansier noted the City Council would like to present the 2020 Vision and Strategic Plan to the October 14, 2002 meeting. Criego asked if the joint meeting with the City Council to discuss variances would come up at a later date. Rye said they would and advised the demolition and grading work was scheduled to begin this week for Lakefront Plaza. 9. Adjournment: The meeting adjoumed at approximately 8:50 p.m. Don Rye Community Development Director Kelly Meyer Recording Secretary L:\02FILES\02planning comm\02pcminutes~vIN090902.doc 12 PLANNING REPORT AGENDA ITEM: SUBJECT: APPLICANT: SITE: PRESENTER: REVIEWED BY: PUBLIC HEARING: DATE: CASE FILE#: 5A PUBLIC HEARING TO CONSIDER A CONDITIONAL USE PERMIT TO ALLOW RETAIL SALES THE C-5 (BUSINESS OFFICE PARK) DISTRICT JANICE GALLOWAY 5500 COTTONWOOD LANE. CYNTHIA KIRCHOFF, AICP, PLANNER JANE KANSIER~ PLANNING COORDINATOR X YES NO-N/A SEPTEMBER 23, 2002 02-98 PROPOSAL/SUMMARY: Janice Galloway (doing business as Bali Karv, LLC) is requesting a conditional use permit (CUP) to allow retail sales in the C-5 (Business Park) zoning district on property located at 5500 Cottonwood Lane. Retail sales is a conditional use within the C-5 zoning district. In the 2020 Comprehensive Plan, the property is designated as Business Office Park, which provides for developments that have a low traffic generation rate. Primary uses are corporate headquarters; and professional and administrative offices; and limited research, development and manufacturing facilities. BACKGROUND: The applicant (Bali Karv LLC) currently occupies approximately 1,200 square feet of warehouse space within the existing 33,400 square foot multi-tenant office/warehouse building. The property has access via Cottonwood Lane and CSAH 21. APPLICABLE REGULATIONS: The requested conditional use permit should be reviewed in accordance with the criteria found in Section 1102.140 (5) and Section 1108 of the City Code. Section 1102.1403(5) includes the specific conditions for retail sales. Section 1108 includes the general CLIP criteria. 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (952) 447-4230 / Fax (952) 447-4245 An Ec~u^I. OPPOaTu;nlTY Planning Report - Galloway Retail Sales CUP September 16, 2002 Page 2 ANALYSIS: The applicant is requesting a conditional use penuit to allow retail sales in a multi-tenant building located at 5500 Cottonwood Lane. The entrance for this lease space is on the rear elevation of the building within the off-street loading areas, which abuts Cottonwood Lane. Retail sales are proposed to take place on Saturday from 10:00 a.m. to 5:00 p.m. and Sunday from 10:00 a.m. to 5:00 p.m. Of the 1,200 square feet leased by the applicant, 600 is proposed to be dedicated to retail sales on weekends. The applicant has indicated that "large wooden carvings and sculptures, garden accessories such as bamboo wind chimes, bird houses, household decorations and accessories such as wall mirrors, wooden wall masks, pottery, bamboo kites, picture frames, inobiles and chimes, painted wood ornaments, etc." would be offered for retail sale. The proposed floor plan indicates that the retail and warehouse areas would not be physically separated. According to the site plan submitted by the applicant, 95 parking stalls are present on the site along the north and east elevations of the building. Parking is not designated on the rear of the building, as this area was designed as the off-street loading area. The zoning ordinance requires one parking stall per 180 square feet of gross floor area for retail store and service establishments. Warehouse uses require one parking stall for each 1,500 square feet of floor area. This use would require a total of four parking stalls. The applicant has not indicated a need for signage. In the C-5 zoning district, multi- tenant buildings with tenant entrances on a side of the building not facing a public street may have signage with a maximum aggregate area per building elevation of 5 percent of the area of the front building elevation. Retail Sales Condition The Zoning Ordinance permits retail sales as a conditional use in the C-5 zoning district. Section 1102.1403 (5) of the Zoning Ordinance sets forth the following condition to minimize the impact of the use on adjacent properties: Such use occupies no more than 2,000 square feet of floor area in the principal strncmre. Finding: The proposed use complies with the standard for retail sales required by the Zoning Ordinance. The applicant proposes a total of 600 square feet for the retail sales area. CONDITIONAL USE PERMIT (CUP) FINDINGS Section 1108.200 of the City Code sets forth the general criteria for approval of a CLIP. l:\02filcs\02cup\galloway\pc report.doc Planning Report - Galloway Retail Sales CLIP September 16, 2002 Page 3 (1) The use is consistent with and supportive of the goals and policies of the Comprehensive Plan. One objective of thc Comprehensive Plan is to "encourage a diversified economic base and a broad range of employment opportunities." The proposed use is consistent with this objective of the Comprehensive Plan. (2) The use will not be detrimental to the health, safety, morals and general welfare of the community as a whole. This proposal will not be detrimental to the health, safety and general welfare of the community, provided the use complies with conditions of approval. The use complies with the criterion in the Zoning Ordinance for retail sales in the C-5 zoning district. (3) The use is consistent with the intent and purpose of the Zoning Ordinance and the Use District in which the Conditional Use is located. One purpose of the zoning ordinance is to "protect the residential, business, industrial and public areas of the community and maintain their stability." The intent of the C-5 (Business Park) use district is to promote high standards of design and construction for business park uses in the City. The proposed retail sales use is consistent with applicable City Code provisions. (4) The use will not have undue adverse impacts on governmental facilities, services, or improvements which are either existing or proposed. The proposed use has adequate public facilities available, including streets and utilities. (5) The use will not have undue adverse impacts on the use and enjoyment of properties in close proximity to the conditional use. The proposed use will not have an undue adverse impact on adjacent uses, provided the standards in the Zoning Ordinance are complied with and all conditions of approval are met. (6) The use is subject to the design and other requirements of site and landscape plans prepared by or under the direction of a professional landscape architect, or civil engineer registered in the State of Minnesota, approved by the City Council and incorporated as part of the conditions imposed on the use by the City Council. Not applicable with this request. Site alteration is not proposed with this request. (7) The use is subject to drainage and utility plans prepared by a professional civil engineer registered in the State of Minnesota which illustrate locations of city water, city sewer, fire hydrants, manholes, power, telephone and cable lines, natural gas mains, and other service facilities. The plans shall be included as part of the conditions set forth in the CUP approved by the City Council. l:\02files\02cup\galloway\pc report.doc Planning Report - Galloway Retail Sales CLIP September 16, 2002 Page 4 Not applicable with this request. Utilities are currently in place for the site. (8) The use is subject to such other additional conditions which the City Council may find necessary to protect the general welfare, public safety and neighborhood character. Such additional conditions may be imposed in those situations where the other dimensional standards, performance standards, conditions or requirements in this Ordinance are insufficient to achieve the objectives contained in subsection 1108.202. In these circumstances, the City Council may impose restrictions and conditions on the CUP which are more stringent than those set forth in the Ordinance and which are consistent with the general conditions above. The additional conditions shall be set forth in the CUP approved by the City Council. Specific conditions designed to mitigate potential impacts of the retail sales on adjacent tenants with the building and properties are included. The proposed use will have to proceed through the building permit approval process, which will ensure that all requirements of the zoning ordinance and building code are met. CONCLUSION: The requested use is consistent with applicable provisions of the City Code and the overall goals and objectives of the Comprehensive Plan. Furthermore, it appears as though the retail sales will not interfere with the other office, warehouse, and gymnastics school uses of the building, provided that conditions of approval are met. The proposed retail sales will be operating hours typically opposite of office and warehouse uses. Staff recommends approval of the conditional use permit request, subject to the following conditions: 1. The applicant has 60 days from the adoption of the resolution by the City Council to complete the required improvements and record the conditional use permit at the Scott County Recorder's office. A building permit will not be issued until proof of recording of the permit has been submitted to the City. 2. Retail sales shall be a. an ancillary use to the warehouse space for this tenant. b. limited to 600 square feet in floor area. c. limited to Saturday from 10:00 a.m. to 5:00 pm. and Sunday from 12:00 p.m. to 5:00 p.m. 3. Retail merchandise shall not be stored outside of the building, including in off-street parking and loading areas. 4. Operation of the retail sales shall not be apparent from public rights-of-way. 1:\02files\O2cup\galloway\pc report.doc Planffmg Report - Galloway Retail Sales CUP September 16, 2002 Page 5 5. Customer parking shall be prohibited in the off-street loading areas. Parking shall be limited to designated stalls on the north and east elevations of the building. ALTERNATIVES: 1. Recommend approval of the CUP subject to the above conditions. 2. Table this item to a specific date, and provide the developer with direction on the issues that have been discussed. 3. Recommend denial of the request. RECOMMENDATION: The staff recommends Alternative #1. ACTION REQUIRED: Motion and second to recommend the City Council approve the CUP subject to the listed conditions. ATTACHMENTS: 1. Location map 2. Applicant's letter 3. Site plan 4. Floor plan 5. Memorandum from Building Official 1:\02files\02cup\galloway\pc report.doc A-I-I-ACHMENT 1 Location Map Location of 5500 Cottonwood Lane 50 Feet Ix/ 16200 Eagle Creek Ave S.E., Prior Lake. MN 55372 ATTACHMENT 2 20685 Lake Ridge Drive Prior Lake. MN 55372 Tel: 952-457-2114 (Cell) RE: Case # 02-098 (Application for Conditional Use Permit) Dear Cynthia, Thank you for your letter asking for additional details about my application for a Condition Use Permit. I will attempt to answer your questions as best I can though I would be only too pleased to answer any further questions or concerns that you or the City may have. Please feel free to call me directly on 952-457-2114. Bali Karv LLC imports, distributes and wholesales hand crafted products from Bali, Indonesia. My application for a "Conditional Use Permit" to allow retail sales from the warehouse came about through direct requests from previous clients, friends and neighbors suggesting that it would be great if we could be open to the public on a regular basis even just for a few hours per week. Based upon this input, I thought that ifI was able to retail on a Saturday (from 10am- 5pm) and Sunday (12 noon - 5pm) this would suffice. Products for sale are wide and varied and include large wooden carvings and sculptures, garden accessories such as bamboo wind chimes, bird houses, household decorations and accessories such as wall mirrors, wooden wall masks, pottery, bamboo kites, picture frames, mobiles and chimes, pa'mted wood ornaments etc. An example of our high end wood carvings and sculptures can be found on our interact site at http://balikarv.com As previously stated these are all hand crafted in natural products and the vast majority of the public have not been previously exposed to such items in other retail stores or outlets. APPLICANT'S LETTER I do believe that I offer unique and different products for sale and that Bali Karv would not be a threat to any other established local businesses as I do not sell anything similar. Our warehouse space is approximately 1184 square feet. Of that total space, approximately half (that is 600 or so) would be available for the public to walk around, though some of the proposed retailing display shelves, particularly top shelves would also be used for storage of our goods with no access to the public. Thanking you,j' /~/ Janice Galloway ~/~/ ATTACHMEH'! 3 FR i"9 SITE PLAN ATTACHMENT 4 I elqe,,L Jooo p~eq~e,~O FLOOR PLAN ATTACHMENT 5 MEMORANDUM DATE: TO: FROM: RE: SEPTEMBER 4, 2002 JANE KANSIER ROBERT D. HUTCHINS GALLOWAY RETAIL SALES CUP PLAN REVIEW Following are the results of the preliminary plan review for the Galloway retail sales CUP. Our review was based on the Minnesota State Building Code (MSBC) which adopted with amendments .the 1997 Uniform Building Code (UBC) with handicap regulations of the Minnesota Accessibility Code Chapter 1341 and with requirements of the 1998 Minnesota State Fire Code (MSFC) which adopted with amendments the 1997 Uniform Fire Code (UFC). conditional use permit review: 1. Submit two set o£building plans drawn to scale. 2. Indicate the type of occupancy or activity in each area of the space. After the conditional use permit is approved: 3. Submit a building permit application. 4. If structural alterations are made, the alteration must be designed by a Structural Engineer registered in the State of Minnesota. Minnesota Statutes 1800.5200. 5. A Service Availability Charge (S.A.C.) determination must be completed by the Metropolitan Council Environmental Services. Contact Jody Edwards at 651.602.1113. 6. Provide on plan emergency lighting and exit signs. LrBC 1003.2.8. 7. Provide fire extinguishers minimum 2A10BC rated, within 75 feet travel distance of all areas. UFC 1002. 8. Provide a Handicap (HDCP) accessible route to a HDCP accessible toilet facility. The accessible route to the primary functions area shall include toilet facilities or drinking fountains serving the area of primary function. MSBC 1341.0405 Item K, Subitem 1. 9. Provide a Handicap (HDCP) accessible route to one HDCP parking stall with sign. MSBC 1341.0403 Item E, Subitem 1. 10. Lavatories for each sex is required. UBC Table A-29-A. 11. Ventilation for the building must meet UBC chapter 12. Provide 15 CFM of ventilation per occupant in the building. 12. Submit a Heating, Ventilation, Air-conditioning (HVAC) plan signed by a Mechanical Engineer Registered in the State of Minnesota. May be submitted at a later date. A mechanical permit is required. A Plumbing and a fire suppression permit may be required. An Electrical permit is required from the Minnesota State Board of Electricity. 13. Ifa sales counter is provided, a HDCP accessible horizontal counter space of 36" and a maximum height of 36" above the finished floor is required. MSBC 1341.0720 Subpart 1. This is a preliminary review on concept plan only. Other code items will be addressed when the preliminary plans are submitted. 2 PLANNING REPORT AGENDA ITEM: SUBJECT: SITE: PRESENTER: REVIEWED BY: PUBLIC HEARING: DATE: CASE FILE#: 5B CONSIDER VARIANCES FROM THE ZONING ORDINANCE FOR THE CONSTRUCTION OF A SINGLE FAMILY DWELLING 15747 WEST AVENUE SE CYNTHIA KIRCHOFF, PLANNER JANE KANSIER, PLANNING COORDINATOR X YES NO SEPTEMBER 23, 2002 02-095 INTRODUCTION: Thomas Knight is requesting variances from zoning ordinance provisions to permit the construction of a single family dwelling on property zoned R-1 (Low Density Residential) and SD (Shoreland District) and located at 15747 West Avenue SE (Lot 5, Point Beautiful). A single family dwelling and detached garage are present on the site. Both are proposed to be removed to accommodate the new structure. The applicant requests the following variances: 1. A 1,579 square foot variance from the minimum 7,500 square feet of lot area for nonconforming shoreland lots to allow a 5,921 square foot lot. (Zoning Ordinance Section 1104.902 (1) a. Development on Nonconforming Lots, Sewered Areas.) 2. A 5 foot variance from the minimum 50 feet of lot width for nonconforming shoreland lots to allow a 45 foot wide lot. (Zoning Ordinance Section 1104.902 (1) a. Development on Nonconforming Lots, Sewered Areas.) 3. A 1.2 pement variance from the maximum 30 percent impervious surface coverage for shoreland lots to allow 31.2 percent impervious surface coverage. (Zoning Ordinance Section 1104.306: Impervious Surface Coverage.) 4. An 8 foot variance fi:om the maximum 35 feet height in the shoreland district to allow a structure 43 feet in height. (Zoning Ordinance Section 1104.302 (4): Sewered Lakes, Lot Area, Width and Setback Requirements.) 5. A 1.9 foot variance from the minimum 907.9 foot elevation for residential vehicular access on property located within the floodplain to allow access at 906 feet (Zoning Ordinance Section 1105.402 (4): Standards for Permitted Uses.) l:\02files\02variances\02-095 \pc report, doc 16200 Ea§le Creek Ave: S.E., Prior Lake, Minnesota 55372q714 / Ph. (952) 447-4230 / Fax (952) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER Planning Report - White Variances September 18, 2002 Page 2 6. A 5 percent variance from the maximum 10 percent residential driveway slope to allow a 15 percent driveway slope. (Zoning Ordinance Section 1107.205 Driveways.) BACKGROUND: The subject property was platted as Lot 5, Point Beautiful in 1924. The site is zoned R-1 (Low Density Residential) and SD (Shoreland District). The platted dimensions of the lot are approximately 45 feet wide by approximately 130 feet in depth for a total lot area of 5,921 square feet. Access is gained via West Avenue SE, a private street. Although the property is a lot of record, it does not comply with minimum standards set forth for nonconforming shoreland lots (i.e., 50 feet of width and 7,500 square feet of area). The property is not a riparian lot, as a 33 foot wide driveway was platted between the lots and the shoreland, however it is within 1000 feet of the ordinary high water mark (OHWM) of Prior Lake and must comply with applicable shoreland standards. The existing single family dwelling was constructed in 1927, according to City records. In 1978, a 5 foot front yard setback and 3 foot side yard setback variances were granted. The record is not clear as to what the type of structure the variance was issued for, however, a building permit for a new garage was issued in that same year. DISCUSSION: According to the survey submitted by the applicant, the existing single family dwelling maintains a nonconforming side yard setback and the existing detached garage is located closer to the front property line than permitted by the variance granted in 1978. Also, the impervious surface on the property totals 32.7 percent. The applicant is requesting variances to construct a single family dwelling with attached garage on the property. In order to construct a structure on the property, variances must be granted from the minimum 7,500 square foot lot area and 50 foot lot width standards. Within the shoreland overlay district, the zoning ordinance requires that structures maintain a 75 foot setback from the Ordinary High Water Mark (OHWM) of Prior Lake (General Development Lake). A provision of the ordinance permits a setback equal to the l:\02files\02variances\02-095\pc report.doc Planning Report - White Variances September 18, 2002 Page 3 average of setbacks of the adjacent structures or 50 feet whichever is greater. The proposed house is shown to be set back 52.7 feet from the 904 elevation. The survey on file for 15741 West Avenue (the property to the east) indicates that the average shoreland setback is 52 feet. (The setback for 15741 West Avenue is 40 feet, due to a variance granted in 2001 and the lakeshore setback is 64 feet for 15759 West Avenue, thus the 52 foot setback.) The proposed dwelling meets the minimum setback. However, the applicant will have to note the setbacks of adjacent structures on a survey submitted with the building permit application. The total impervious surface coverage for the property is 31.2 percent, which is less than the existing situation of 32.7 percent but greater than the 30 percent permitted by ordinance. The applicant would like to construct a dwelling with a modem design that measures 43 feet in height. Structures within the shoreland overly district cannot exceed 35 feet, measured to the mid-point of a gable roof. The floodplain ordinance requires that residences have vehicular access at or above 907.9 feet (which is 2 feet below the regulatory flood protection elevation). The existing gravel road is at 906 feet in elevation (see picture). The driveway grade is proposed to be 15 pement, and the zoning ordinance permits a maximum of 10 percent elevation change for a residential driveway. The proposed dwelling complies with the 25 foot minimum front and rear yard setbacks and minimum side yard setbacks for nonconforming lots. Applicant's Perception Of Hardship The applicant has indicated the existing detached garage "is disintegrating [and] every spring getting a little worse due to ice/water damage to the masomy structure." The "new structure would be of a 3 story modem design closely resembling the REI building on 494 in Bloomington [and] scaled down and built within all codes and guidelines depicted by city, county and state." l:\02files\02variances\02-095\pc report.doc Planning Report - White Variances September 18, 2002 Page 4 Minnesota DNR Comments The Minnesota Department of Natural Resources (DNR) was notified concerning the variance requests and recommends denial of the building height and impervious surface coverage variances, because a slight modification in the plans could eliminate the variances without unduly denying the property owner reasonable use of the property. According to the area hydrologist, the state has granted a blanket variance to Prior Lake to allow the 35 feet of height (the state rules only permit 25 feet) and 30 percent impervious surface coverage, because the state rules only allow 25 pement. (Note: The additional 5 percent was granted to address existing development and redevelopment of substandard lots of record.) The DNR also recommends that the existing 8 foot by 12 foot shed located at the southeast corner of the property be removed from the site to reduce impervious surface coverage and eliminate a structure with nonconforming setbacks. VARIANCE HARDSHIP STANDARDS Where by reason of narrowness, shallowness, or shape of a lot, or where by reason of exceptional topographical or water conditions or other extraordinary and exceptional conditions of such lot, the strict application of the terms of this Ordinance would result in peculiar and practical difficulties or exceptional or undue hardship upon the owner of such lot in developing or using such lot in a manner customary and legally permissible within the Use District in which said lot is located. The subject lot is only 45 feet in width and 5,921 square feet in area, and is thus nonconforming. Therefore, the subject property exhibits exceptional conditions, width and area of the lot, that result in practical difficulties upon the owner in constructing a single family dwelling, as permitted in the R-1 zoning district. The variance from the minimum floodplain elevation for vehicular access is due to the previous design of the road. This design cannot be changed without affecting drainage patterns on other properties. The variances to exceed maximum impervious surface, building height, and driveway slope are not due to exceptional or unique conditions of the property, but to the design conceived of by the applicant. These variances could be eliminated by a resign of the plan. Conditions applying to the structure or land in question are peculiar to the property or immediately adjoining property, and do not apply, generally, to other land or structures in the Use District in which the land is located. l:\02files\02variances\02-095\pc report.doc Planning Report - White Variances September 18, 2002 Page 5 The 45 foot wide lot is a unique condition of the property, but is not exclusive to this subject lot or the Point Beautiful plat. There are several plats within the City of Pfior Lake that Were platted with lots narrower that would be permitted by the existing minimum standards for properties zoned R-1. However, the site is a lot of record and is unbuildable without relief from the min/mum dimensional requirements of nonconforming lots and minimum vehicular access. The existing road design also cannot be altered without impacting adjacent properties. Although the property has constraints, a reasonable use, which is considered a single family dwelling with a two stall garage, can be constructed on the property without the requested bulk standard variances. The granting of the proposed Variance is necessary for the preservation and enjoyment of a substantial property right of the owner. The variances for lot area and width and floodplain elevation for vehicular access are essential for the preservation and enjoyment of a substantial property fight, because these particular elements of the site were not under the control of the applicant. A single family dwelling with a detached garage is currently present on the site, so the owner enjoys a reasonable use of the property. However, the applicant has noted that the existing detached garage is in need of repair and must be replaced. The applicant proposes to remove the existing reasonable use and construct a new dwelling with attached garage. The inability to construct a new larger dwelling that does not comply with maximum impervious surface coverage, maximum height, and maximum driveway grade standards does not interfere with a fight the property owner has to develop the site. 4. The granting of the proposed Variance will not impair an adequate supply of light and air to the adjacent property~ unreasonably increase.the congestion in the public streets, increase the danger of fire, or endanger the public safety. The granting of the height variance will impair an adequate supply of light and air to adjacent property, because the structure is proposed to be 43 feet measured to the mid-point of the roof. Furthermore, the impervious surface coverage variance may impact the runoff from the property and impact adjacent properties. The driveway grade variance will establish a precedent for properties within the Point Beautiful plat and other properties within the R-1 zoning district. 5. The granting of the Variance will not unreasonably impact on the character and development of the neighborhood, unreasonably diminish or impair established property values in the surrounding area, or in any other way impair the health, safety, and comfort of the area. l:\02files\02variances\02-095\pc report.doc Planning Report - White Variances September 18, 2002 Page 6 Relief from the R-1 minimal dimensional and floodplain vehicular access requirements to allow a reasonable use to be constructed on the property will not unreasonably impact the neighborhood, as a single family dwelling is already present on the site. Also, altering the elevation of the vehicular access could create drainage issues for adjacent properties. The granting of the variances will impact the character and development of the Point Beautiful Neighborhood as the proposed structure measures 43 feet in height, site impervious surface exceeds 30 percent, and driveway grade exceeds 10 pement. Permitting the construction of the proposed structure will affect the perceived health, safety, and comfort of the immediate area. Furthermore, continually permitting relief from standards that intend to protect the integrity of Prior Lake, both aesthetically and environmentally, will defeat the purpose of the regulations. 6. The granting of the proposed Variance will not be contrary to the intent of this Ordinance and the Comprehensive Plan. The granting of the lot area and width variances does not appear to be inconsistent with the intent of the zoning ordinance. The City Code intends to allow nonconforming lots of record to be buildable so the property owner can enjoy a reasonable use. One purpose of the zoning ordinance is to "prevent the overcrowding of land and undue concentration of structures and population by regulating the use of land and buildings and the bulk of buildings in relation to the land surrounding them." The bulk standard variances for proposed single family dwelling appear to be inconsistent with the intent of zoning ordinance in general. The zoning ordinance also intends to "enhance the aesthetic character and appearance of the city" and "conserve natural resources and environmental assets of the community." As previously noted, requested bulk standard variances appear contrary to the purpose of the regulations by potentially degrading natural resources important to the health and vitality of Prior Lake. The shoreland ordinance intends to "provide for the wise development of shorelands of public waters," and "preserve and enhance the quality of surface waters, preserve the economic and natural environmental values of shoreland, and provide for the wise utilization of waters and related land resources." The requested variances from maximum height and maximum impervious surface coverage are inconsistent with the intent of the shoreland ordinance. l:\02files\02variances\02-095\pc report.doc Planning Report - White Variances September 18, 2002 Page 7 The granting of the Variance will not merely serve as a convenience to the applicant but is necessary to alleviate a demonstrable undue hardship or difficulty. A reasonable use is currently present on the site. However, since the applicant proposes to rebuild a structure on a nonconforming lot of record, variances from minimum dimensional standards and the access requirements must be granted. As previously noted, a demonstrable hardship is present to warrant variances from those standards. The bulk standard variances could be eliminated. The plan could be redesigned to eliminate the height, impervious surface coverage, and driveway slope variances. Thus, the granting of the variances appears to serve as a convenience to the applicant. The hardship results from the application of the provisions of this Ordinance to the affected property and does not result from actions of the owners of the property. The subject site is 45 feet in width and 5,921 square feet in area. The zoning ordinance requires nonconforming lots within the R-lSD zoning district to be 50 feet in width and 7,500 square feet in area, so this lot is nonconforming. The applicant did not create the nonconforming lot, so the hardship results from the application of the provisions of the zoning ordinance and does not result from action of the property owner. The fact that the property owner has proposed a new single family dwelling on the site that does not comply with maximum standards set forth in the zoning ordinance makes the hardship self-created. 9. Increased development or construction costs or economic hardship alone shall not be grounds for granting a Variance. Although the reconstruction of the single family will increase the value of the property, staff does not believe that it is the sole purpose of the request. CONCLUSION: The applicant was granted relief from the zoning ordinance in 1978 to construct a detached garage, which allowed a reasonable use on the property. The proposed single family dwelling with attached garage does not comply with several provisions of the zoning ordinance, so the applicant is requesting variances. l:\02files\02variances\02-095\pc report, doc Planning Report - White Variances September 18, 2002 Page 8 Should the height, impervious surface coverage, and driveway slope variances be granted the property owner would receive a greater benefit than other properties within the Point Beautiful plat and the R-lSD zoning district. The proposed dwelling could be reduced in size so that bulk standard variances are not needed. However, the width and area variances and the access elevation variance are necessary to allow the property owner a reasonable use of the property similar to those in the same zoning district. RECOMMENDATION: Staffrecommends approval of the requested variances to lot area and width and vehicular access flood elevation, so the applicant can construct a reasonable use on the site. Staff believes that all nine-hardship criteria have not been met with respect to the requested height, impervious surface, and driveway slope variances. The applicant created the hardship by the design of the dwelling. The staff therefore recommends denial of the requested variances from maximum height, impervious surface coverage, and driveway slope requirements, as proposed by the applicant. With respect to the driveway slope variance, even if the Planning Commission does not approve the requested variance, the City Engineer may approve a driveway slope exceeding 10% in circumstances of unusual topography or existing conditions. ALTERNATIVES: 1. Approve the variances requested by the applicant, or approve any variances the Planning Commission deems appropriate in the circumstances. In this case, the Planning Commission should direct staff to prepare a resolution with findings approving the variance requests. 2. Table or continue discussion of the item for specific purpose. 3. Deny the application because the Planning Commission finds a lack of demonstrated hardship under the zoning code criteria. ACTIONS REQUIRED: The staffrecommends approval of this request in part, and denial in part. This requires the following motions: 1. A Motion and second adopting Resolution 02-012PC approving the variances from minimum lot area and width and vehicular access flood elevation. 2. A Motion and second adopting Resolution 02-013PC denying the variances from maximum structure height, impervious surface coverage and driveway slope. l:\02files\02variances\02-095 \pc report, doc Planning Report - White Variances September 18, 2002 Page 9 ATTACHMENTS: 2. 3. 4. 5. 6. 7. Location map Applicant's letter Existing conditions Existing impervious surface Proposed dwelling Proposed impervious surface Proposed house plans and elevations l:\02files\02variances\02-095\pc report.doe RESOLUTION 02-012PC A RESOLUTION APPROVING A 1,579 SQUARE FOOT VARIANCE FROM THE 7,500 SQUARE FOOT MINIMUM LOT AREA FOR NONCONFORMING LOTS, A 5 FOOT VARIANCE FROM THE 50 FOOT MINIMUM LOT WIDTH FOR NONCONFORMING LOTS, AND A 1.9 FOOT VARIANCE FROM THE 907.9 MINIMUM ELEVATION FOR VEHICULAR ACCESS IN THE FLOODPLAIN FOR THE CONSTRUCTION OF A SINGLE FAMILY DWELLING BE IT RESOLVED BY the Board of Adjustment of the City of Prior Lake, Minnesota; FINDINGS Thomas White has applied for variances from the Zoning Ordinance in order to permit the construction of a single family dwelling on property located in the R-1 (Low Density Residential) and SD (Shoreland Overlay) Districts at the following location, to wit; 15747 West Avenue SE, Prior Lake, MN, legally described as follows: Lot Point Beautiful, Scott County, Minnesota. 2. The Board of Adjustment has reviewed the application for variances as contained in Case #02-095PC and held a hearing thereon on September 23, 2002. The Board of Adjustment has considered the effect of the proposed variance upon the health, safety, and welfare of the community, the existing and anticipated traffic conditions, light and air, danger of fire, risk to the public safety, the effect on property values in the surrounding area and the effect of the proposed variance on the Comprehensive Plan. The subject lot is only 45 feet in width and 5,921 square feet in area, and is thus nonconforming. Therefore, the subject property exhibits exceptional conditions, width and area of the lot, that result in practical difficulties upon the owner in constructing a single family dwelling, as permitted in the R-1 zoning district. The variance from the minimum floodplain elevation for vehicular access is due to the previous design of the road, which cannot be altered without impacting adjacent properties. The 45 foot wide lot is a unique condition of the property, but is not exclusive to this subject lot or the Point Beautiful plat. There are several plats within the City of Prior Lake that were platted with lots narrower that would be permitted by the existing minimum standards for properties zoned R-1. However, it is a lot of record and is unbuildable without relief from the minimum dimensional requirements of nonconforming lots. The variances for lot area and width and floodplain elevation for vehicular access are essential for the preservation and enjoyment of a substantial property right, because these particular elements of the site were not under the control of the applicant. 1:\02files\O2variances\O2-O95\approve resolution.doc l 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Pt. (952) 447-4230 / Fax (952) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER the existing detached garage is in need of repair and must be replaced. The applicant proposes to remove the existing reasonable use and construct a new dwelling with attached garage. The inability to construct a new larger dwelling that does not comply with a minimum setback, maximum impervious surface coverage, maximum height, and maximum driveway grade does not interfere with a right the property owner has to develop the site. 7. The granting of the height variance will impair an adequate supply of light and air to adjacent property, because the structure is proposed to be 43 feet measured to the mid-point of the roof. Furthermore, the impervious surface coverage variance may impact the runoff from the property and impact adjacent properties. The driveway grade variance will establish a precedent for properties within the Point Beautiful plat and other properties within the R-1 zoning district. 8. The granting of the variances will impact the character and development of the Point Beautiful Neighborhood as the proposed structure measures 43 feet in height and encroaches into the required shoreland setback, site impervious surface exceeds 30 percent, and driveway grade exceeds 10 percent. Permitting the construction of the proposed structure will affect the perceived health, safety, and comfort of the immediate area. Furthermore, continually permitting relief from standards that intend to protect the integrity of Prior Lake, both aesthetically and environmentally, will defeat the purpose of the regulations. One purpose of the zoning ordinance is to "prevent the overcrowding of land and undue concentration of structures and population by regulating the use of land and buildings and the bulk of buildings in relation to the land surrounding them." The bulk standard variances for proposed single family dwelling appear to be inconsistent with the intent of zoning ordinance in general. 10. The bulk standard variances could be eliminated. The plan could be redesigned to eliminate the shoreland setback, height, impervious surface coverage, and driveway slope variances. Thus, the granting of the variances appears to serve as a convenience to the applicant. 11. The fact that the property owner has proposed a new single family dwelling on the site that does not comply with minimum and maximum standards set forth in the zoning ordinance makes the hardship self-created. 12. The contents of Planning Case #02-095PC are hereby entered into and made a part of the public record and the record of decision for this case. CONCLUSION Based upon the Findings set forth above, the Board of Adjustment hereby denies the following variances to allow the construction of a single family dwelling: 1:\02files\O2variances\O2-O95\deny resolution.doc 2 1. A 1.2 percent variance from the maximum 30 percent impervious surface coverage for shoreland lots for 31.2 percent impervious surface coverage. (Zoning Ordinance Section 1104.306: Impervious Surface Coverage.) 2. An 8 foot variance from the maximum 35 feet maximum height in the shoreland district for a structure 43 feet in height. (Zoning Ordinance Section 1104.302 (4): Sewered Lakes, Lot Area, Width and Setback Requirements.) 3. A 5 percent variance from the maximum 10 percent residential driveway slope for a 15 percent driveway slope. (Zoning Ordinance Section 1107.205 Driveways.) Adopted by the Board of Adjustment on September 23, 2002. ATTEST: Anthony J. Stamson, Commission Chair Donald R. Rye, Planning Director h\O2files\O2variances\O2-O95\deny resolution.doc RESOLUTION 02-013PC A RESOLUTION DENYING A 1.2 PERCENT VARIANCE FROM THE MAXIMUM 30 PERCENT IMPERVIOUS SURFACE COVERAGE, AN 8 FOOT VARIANCE FROM THE 35 FOOT MAXIMUM HEIGHT, AND A 5 PERCENT VARIANCE FROM THE 10 PERCENT MAXIMUM DRIVEWAY SLOPE FOR THE CONSTRUCTION OF A SINGLE FAMILY DWELLING BE IT RESOLVED BY the Board of Adjustment of the City of Prior Lake, Minnesota; FINDINGS Thomas White has applied for variances from the Zoning Ordinance in order to permit the construction of a single family dwelling on property located in the R-1 (Low Density Residential) and SD (Shoreland Overlay) Districts at the following location, to wit; 15747 West Avenue SE, Prior Lake, MN, legally described as follows: Lot Point Beautiful, Scott County, Minnesota. 2. The Board of Adjustment has reviewed the application for variances as contained in Case #02-095PC and held a hearing thereon on September 23, 2002. The Board of Adjustment has considered the effect of the proposed variance upon the health, safety, and welfare of the community, the existing and anticipated traffic conditions, light and air, danger of fire, risk to the public safety, the effect on property values in the surrounding area and the effect of the proposed variance on the Comprehensive Plan. The variances to exceed maximum impervious surface, building height, and driveway slope are not due to exceptional or unique conditions of the property, but to the design conceived of by the applicant. These variances could be eliminated by a resign of the plan. Although the property has constraints, a reasonable use, which is considered a single family dwelling with a two stall garage, can be constructed on the properly without the requested bulk standard variances. 6. A single family dwelling with a detached garage is currently present on the site, so the owner enjoys a reasonable use of the property. However, the applicant has noted that 1:\02files\O2variances\O2-O95\deny resolution.doc 1 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (952) 447-4230 / Fax (952) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER Relief from the R-1 minimal dimensional and floodplain vehicular access requirements to allow a reasonable use to be constructed on the property will not unreasonably impact the neighborhood, as a single family dwelling is already present on the site. The granting of the lot area and width variances do not appear to be inconsistent with the intent of the zoning ordinance. The City Code intends to allow nonconforrning lots of record to be buildable so the property owner can enjoy a reasonable use. A reasonable use is currently present on the site. However, since the applicant proposes to rebuild a structure on a nonconforming lot of record, variances from minimum dimensional standards must be granted. As previously noted, a demonstrable hardship is present to warrant variances from those standards. 10. The subject site is 45 feet in width and 5,921 square feet in area. The zoning ordinance requires nonconforming lots within the R-lSD zoning district to be 50 feet in width and 7,500 square feet in area, so this lot is nonconforming. The applicant did not create the nonconforming lot, so the hardship results from the application of the provisions of the zoning ordinance and does not result from action of the property owner. 11. The contents of Planning Case #02-095PC are hereby entered into and made a part of the public record and the record of decision for this case. CONCLUSION Based upon the Findings set forth above, the Board of Adjustment hereby approves the following variances to allow for the construction of a single family dwelling: 1. A 1,579 square foot variance from the minimum 7,500 square feet of lot area for nonconforming shoreland lots for a 5,921 square foot lot. (Zoning Ordinance Section 1104.902 (1) a. Development on Nonconforming Lots, Sewered Areas.) 2. A 5 foot variance from the minimum 50 feet of lot width for nonconforming shoreland lots for a 45 foot wide lot. (Zoning Ordinance Section 1104.902 (I) a. Development on Nonconforming Lots, Sewered Areas.) 3. A 1.9 foot variance from the minimum 907.9 foot elevation for residential vehicular access on property located within the floodplain for access at 906 feet (Zoning Ordinance Section 1105.402 (4): Standards for Permitted Uses.) Adopted by the Board of Adjustment on September 23, 2002. ATTEST: Anthony J. Stamson, Commission Chair Donald R. Rye, Planning Director h\O2files\O2va ria nces\O2-O95\approve resolution.doc 2 ATTACHMENT I Location Map Park 0 3OO August 10 2002 Steve Horsman Zoning Administrator 16200 Eagle Creek Ave S.E. Prior Lake MN 55372 Steve & interested parties, Lot 5 Point Beautiful, my home, is a substandard lot of 45' wide x 128 ' in length. I would like to remove existing garage and house structures & rebuild new. I feel I can meet all build code requirements except for lot width. The existing structure of the detached garage is disintegrating. Every spring getting a little worse due to ice/water damage to the masonry structure. My new structure would be of a 3 stoW modern design closely resembling the REI building on 494 in Bloomington. Scaled down and built within all codes & guidelines depicted by city ,county & state. Lot width should not be a problem as I will not be building wider that what is already existing. I will be consolidating house and garage to a single tuckunder garage structure construction. I would like the house to be something we all can be in a positive agreement on. Please contact me if more information if needed. Thanks for your attention. APPLICANT'S LETTER ATTACHMENT 3 CERTIFICATE OF SURVEY For: TOM KNIGHT ~?~ · 145.00 · : ~:~:~-~. : -..S85'17'31 "£ :' · -~"~'1 -RETAINING · '' WALL LOT 5 STEPS 0 0 EXISTING DWELLING O ~LDG ~. 7 E Scale: 1"=20' Page 2 of 2 EXISTING CONDITIONS ATTACHMENT 4 CITY OF PRIOR LAKE. Impervious Surface Calculations (To be Submitted with Building Permit Application) For All Properties Located in the Shoreland District (SD). The Maximum Impervious Surface Coverage Permitted in 30 Percent. Property Address: Lot 5I Point Beautiful; 15747 West Avenue SE (Existing} HOUSE ATTACHED GARAGE Lot Area 5,921.36 Sq. Feet x 30% = 1,776.41 LENGTH WIDTH SQ. FEET 35.2 x 24.2 = 851.84 X ----- TOTAL PRINCIPLE STRUCTURE ...... 25.9 x 23.7 = 621.29 X ---- 851.84 DETACHED BLDGS (Garage/Shed) TOTAL DETACHED BUILDINGS ...... 621.29 DRIVEWAY/PAVED AREAS (Driveway-paved or not) (Sidewalk/Parking Areas) All conc. areas on lot = 238.26 West Ave NE Encroaching = 121.85 TOTAL PAVED AREAS .................. 360.11 PATIOS/PORCHES/DECKS (Open Decks 1/4 min. opening between boards, with a pervious surface below, are not considered to be impervious) Existing Frame Shed = 103.46 TOTAL DECKS .............................. 1,805.16 Other TOTAL IMPERVIOUS SURFACE UNDER/OVER Prepared By Paul Fricovsk¥ Date Company James R. Hill, Inc. Phone # 1,936.7 160.29 8/15/o2 (952)-890-6044 EXISTING IMPERVIOUS SURFACE ATTACHMENt' 5 45.00 ~ pROPOSED HOUSE $(,,ALE: 1~'=20' GROSS AREA: 5,921.36 LEGAL DESCRIPTION: LO3' 5, pOIN'l' BE/~UTIFUL ATTACHMENT 6 CITY OF PRIOR LAKE. Impervious Surface Calculations (To be Submitted with Building Permit Application) For All Properties Located in the Shoreland District (SD). The Maximum Impervious Surface Coverage Permitted in 30 Percent. Property Address: Lot 5, Point Beautiful - 15747 West Avenue NE (Proposed) Lot Area 5,921.36 Sq. Feet x 30% = 1,776.41 LENGTH WIDTH SQ. FEET HOUSE 50 x 24 = 1200 X ATTACHED GARAGE x TOTAL PRINCIPLE STRUCTURE ...... 1200 DETACHED BLDGS (Garage/Shed) 12.33 x 8.36 = 103.08 TOTAL DETACHED BUILDINGS ...... 103.08 DRIVEWAY/PAVED AREAS (Driveway-paved or not) (Sidewalk/Parking Areas) Proposed driveway = 421.47 West Ave NE encroach. = 121.85 TOTAL PAVED AREAS .................. 543.32 PATIOS/PORCHES/DECKS (Open Decks 1/4 min. opening between boards, with a pervious surface below, are not considered to be impervious) TOTAL DECKS .............................. Other = TOTAL OTHER .............................. TOTAL IMPERVIOUS SURFACE UNDER/OVER Prepared By Paul Fricovskv Date Company James R. Hill, Inc. Phone # 1,846.4 69.99 8/14/02 (952)-890-6044 PROPOSED IMPERVIOUS SURFACE PROPOSED HOUSE FOOTPRINT PROPOSED HOUSE ELEVATIONS PLANNING REPORT AGENDA ITEM: SUBJECT: PRESENTER: PUBLIC HEARING: DATE: 6A CONTINUED REVIEW OF A REQUEST FOR APPROVAL OF A PLANNED UNIT DEVELOPMENT PRELIMINARY PLAN AND A PRELIMINARY PLAT TO BE KNOWN AS CRYSTAL BAY JANE KANSIER, PLANNING COORDINATOR YES X NO-N/A SEPTEMBER 23, 2002 INTRODUCTION: 212 Development, LLC, has applied for approval of a development to be known as Crystal Bay on the property located south of CSAH 82, directly east of Fremont Avenue and approximately ¥2 mile west of CSAH 21. The application includes a request to approve a Planned Unit Development Preliminary Plan and a Preliminary Plat. The proposal calls for a townhouse development consisting of 26 dwelling units on 10.62 acres. The development also proposes private open space and 26 boat slips for the use of the residents. The Planning Commission conducted a public heating on this item on September 9, 2002. Following the close of the public hearing, the Commission generally agreed the development was consistent with the PUD requirements. The Commissioners, however, requested the developer submit new plans and information addressing the following items: · Provide calculations indicating the impervious surface in each tier, as well as the overall impervious surface. The Planning Commission indicated the additional 25' of right-of-way may be included within the impervious surface calculation, but the impervious surface may not exceed the allowable 25% in each tier. The total mount of impervious surface may not exceed 30 pement. · Review the configuration of the boat slips with respect to water safety and other issues. No more than 21 slips will be permitted. l:\02files\02subdivision$\02prelim plats~crystal bay\crystal pc3.doc Page 1 16200 Ea§le Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (952) 447-4230 / Fax (952) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER · Revise the tree inventory to include only those trees considered significant in the Zoning Ordinance. Identify which trees will be removed for roads and utilities, and which trees will be removed for building pads. · Revise the landscaping plan to meet all ordinance requirements. The landscaping should also address any required tree replacement. The tree replacement requirements are over and above the required landscaping. · Provide details, including height and materials, on the proposed privacy fence along the west lot line. · Provide copies of the restrictive covenants for this development. It should be noted that the Planning Commission closed the public heating on this application. However, if desired, the Planning Commission may recognize individuals to answer questions or to speak specifically to new information provided at the meeting. ANALYSIS: On Monday, September 16, 2002, the staff received additional information addressing the above-listed six issues. Each of these issues, and the response, are listed below. · Provide calculations indicating the impervious surface in each tier, as well as the overall impervious surface. The Planning Commission indicated the additiona125' of right-of-way may be included within the impervious surface calculation, but the impervious surface may not exceed the allowable 25% in each tier. The total amount of impervious surface may not exceed 30percent. The attached chart lists the impervious surface calculations for each tier in the development, including 25' of CSAH 82 right-of-way. The overall impervious surface of the site is 27.2% of the land area. Tier 1 includes 25% impervious surface. Tier 2 includes 30.4% impervious surface. To reduce the mount of impervious surface, the developer is proposing to use a permeable pavement product, which is intended to mitigate stormwater runoff through infiltration, thereby reducing volume flows, improving water quality and recharging groundwater. Information on this type of product is attached for your information. · Review the configuration of the boat slips with respect to water safety and other issues. No more than 21 slips will be permitted. The revised plans did not change the boat slip configuration. However, the developer has verbally indicated that they have obtained lake depth information, and have determined the configuration may be changed to pull the dock slips closer to the shoreline (see attached fax). · Revise the tree inventory to include only those trees considered significant in the Zoning Ordinance. Identify which trees will be removed for roads and utilities, and which trees will be removed for building pads. l:\02files\02subdivisions\02prelim platskcrystal baykcrystal pc3.doc Page 2 The developer has submitted a revised plan identifying the trees to be removed. Some additional information is still required to allow staff to verify this information. It appears, based on the revised plans, the developer will be required to replace approximately 300 caliper inches of significant trees. This equals approximately 120, 2 ½ caliper inch trees. The landscaping plan lists replacement trees, but does not clearly identify these trees. Revise the landscapingplan to meet all ordinance requirements. The landscaping should also address any required tree replacement. The tree replacement requirements are over and above the required landscaping. The landscaping plan has not been revised to include the proper number of trees, or the mix of species required by the ordinance. Our calculations indicate a total of 73 trees are required for this site. The landscaping plan submitted includes 71 trees. The Zoning Ordinance also requires that at least 25% of the landscaping trees be deciduous, and 25% be coniferous. The plan submitted must be revised to include more coniferous trees. In addition, the Zoning Ordinance requires at least 20% of the plants must exceed the minimum sizes of 2 1/2 caliper inches for deciduous and 6' for coniferous. This requires that at least 20% of the deciduous trees be 3 V2 caliper inches, and at least 20% of the evergreens must be at least 8' high. The plan also does not indicate whether an irrigation system will be provided. Finally, the plan must be revised to clearly identify the required replacement trees. · Provide details, including height and materials, on the proposed privacy fence along the west lot line. The attached plan indicates the fence along the east property line will be 7' in height, and will be constructed of 1" by 6" cedar boards with a cedar lattice header. · Provide copies of the restrictive covenants for this development. Copies of the proposed restrictive covenants are attached for your information. PLANNING COMMISSION RECOMMENDATION: At this time, the Planning Commission should make a recommendation on the proposed PUD Preliminary Plan and the Preliminary Plat. The remaining issue is the impervious surface in Tier 2. The staff has discussed the use of the permeable pavers with the DN-R staff. As noted in the attached e-mail from Mark Osbom, the DNR will not oppose the use of this type of product if the City feels it is appropriate. The DNR has suggested additional ponding or infiltration be provided to accommodate the extra impervious surface. The City Engineering staff is reviewing the literature on this product at this time. Although the impervious surface in Tier 2 exceeds 25%, the impervious surface on the entire site is less than the 30% maximum. If this development were not a PUD, the 25% requirement would not apply. The developer would not be able to exceed the 30% impervious surface on the site. l:\02files\O2subdivisions\O2prelim plats~cvdstal bay~erystal pc3.doc Page 3 If the Commission feels the proposal should proceed to the Council, the staff would recommend the following conditions be attached: 1. The tree inventory must be revised to include only those trees considered significant in the Zoning Ordinance. All of the necessary information must be submitted to staff to verify the calculations. 2. The landscaping plan should be revised to meet all ordinance requirements. 3. The private streets must be platted as outlots. An 11 ' wide drainage and utility easements must be provided on either side of the outlot. 4. The developer must provide easements for the storm water pond. 5. All public improvements must be constructed to the standards of the Public Works Design Manual Revised plans must be submitted for review by the City. ALTERNATIVES: 1. Recommend approval of the PUD Preliminary Plan and the Preliminary Plat subject to the above conditions, or other conditions identified by the Planning Commission. 2. Recommend denial of the request. RECOMMENDATION: The Planning staff recommends Alternative #1. ACTION REQUIRED: A motion and second recommending approval of the following requests: · Approval of a Planned Unit Development Preliminary Plan to be known as Crystal Bay subject to the above conditions; · Approval of a Preliminary Plat to be known as Crystal Bay, subject to the above conditions. EXHIBITS: 1. Reduced Copy of revised PUD and Preliminary Plat Plans 2. Permeable Pavement Information 3. Restrictive Covenants 4. E-mails from Kyle Schroeder and David Retzlaff l:~02files\02subdivisions\02prelim plats\crystal bay~crysta] pc3.doc Page 4 °°o°~ 0 0 Landscape Plan CRYSTAL BaY DEVELOPMENT Z T © 0 -I- 0 F~ REMOVAL PLAN CRYSTAL BAY DEVELOPMENT i ~I FREMONT AVENUE ,,,.:ill,. ,, ,,:.,,'.1 '¢ ,,.,. ¢ ;ili!ll' '":: i'li ii[I Il:Il Iii .Ii ..--' . - [ II il' ( ¢ ' [ l!il .-, I Z 0 Page 1 of 1 Jane Kansier From: Mark Osborn [mark@mbi-nf.com] Sent: Thursday, September 19, 2002 3:36 PM To: jkansier@cityofpriorlake.com Subject: Crystal Bay Townhomes Jane, I recently spoke with Pat Lynch of the DNR regarding pervious pavements. I believe you have already spoken with Pat regarding this subject, and he informed me that the DNR would not recommend the product but also would not oppose it. They are interested in this product, but are unsure of it as of right now. He mentioned to me that it might be beneficial (for potential use of this product) to have the ponds designed as if all of the pervious pavement was actually impervious, thereby showing that we can detain and treat the stormwater runoff even if the product fails to be pervious. The current drainage plan does consider the entire pavement area as impervious, including the 9,065 sf listed as pervious pavement in the impervious calculations. It was easier at the time to overdesign the ponds based upon no pervious pavement being used. I thought you should be aware of this. Unfortunately I will not be able to attend the Planning Meeting on the 23rd, but we will have someone present who hopefully can answer any additional questions. Thank you, Mark Osbom, PE McGhie & Betts, [nc. 9/19/2002 Sep 19 O~ O~:47p McGhie & Be~$ ~ (SO?]G45-~B4~ p. i FACSIMILE TRANSMISSION COVER SHEET Northfield Minnesota Land Surveying Civil Engineering Geotechnical Engineering Construction Material Testing Environmental Services 1604 Riverview Lane Northfield, MN 55057 Tel. 507.645.0964 Fax. 507.645.2842 e-mail, mlc(~mbi-nf, com ATTN: Ms. Jane Kansier COMPANY: Ciw of Prior Lake - Planning FAX NUMBER: 952-447-4245 TIME SENT: PHONE NUMBER: DATE SENT: TOTAL OF PAGES W TH COVER SHEET , RE: Map of Boat Slips FROM: Mark Osborn If you do not receive the nm~oer of pages indicated or if you have problems with the transmission, please call 507-6454)964. MESSAGE: Jane, we finally received info regarding the lake contours. Our Boat !Slips will be as shown on the following map if approved by the DNR as Well as the City of Prior Lake. ~ks can be seen, we are an adequate distance from the surrounding boat ~slips. The DNR encouraged us to keep the slips as close to the west as ~ve can be without crowding the existing slips. This telefaxcd information is intended only for the use of the individual or entity to which it is addressed and contains information that is private. privileged and confidential. If the reader of this message is not the intended Yecipient, the employer, employee or agent responsible to deliver it to the intended recipient, you are hereby notified that dissemiuatiou, distribution or copying of this communication by any means or in any manner is strictly prohibited. If you have received Ihis fax in error, please notify us immediately by,telephone and return the original message to us by mail at the above address. Se~ 15 O~ 0~:48p McGhie & Bett$ ~F (507)~45-~B4~ p.~ / COMMON INTEREST COMMUNITY A Planned Community CRYSTAL BAY HOMEOWNERS DECLAR~4~TION SECYION l SECTION 2 SECTION 3 SECTION' 4 SECTION 5 SECTION 6 SECTION 7 SECTION g SECTION 9 SECTION 10 SECTION I 1 SECTION 12 SECTION 13 SECTION 14 SECTION 15 SECTION 16 SECTION 17 SECTION 18 SECTION 19 CRYSTAL BAY EIOIVtEOWNERS DECLARATION TABLE OF CONTENTS DEFINITIONS ........................................................................................ -4- DESCRIPTION OF UNITS AND APPURTENANCES ....................... -6- COMMON ELE/VIENTS AND LIMITED COMMON ELEMENTS ............................................................................................ -7- ASSOCIATION MEMBERSHIP: RIGHTS AND OBLIGATIONS ..... -8- ADMINISTRATION .............................................................................. -9- ASSESSMENTS FOR COMMON EXPENSES .................................. -10- RESTRICTIONS ON USE OF PROPERTY ....................................... -14- ARCFI1TECTURAL CONTROL ......................................................... -16- MAINTENANCE ................................................................................. - 1 g- PARTY WALLS ................................................................................... -19- INSURANCE ....................................................................................... -20- KECONSTRUCTION, CONDElVlNATION AND EMINENT DOMAIN .............................................................................................. -22- EASEMENTS ...................................................................................... -23- COMPLIANCE AND REMEDIES ...................................................... -24- SPECIAL DECLAILANT RIGHTS ...................................................... -27- RIGHTS TO .ADD ADDITIONAL REAL ESTATE, RELOCATE UNIT BOUNDARLES AND ALTER UNITS ...................................... -28- AMENDMBN'I S .................................................................................. -30- RIGHTS OF ELIGIBLE MORTGAGEES ........................................... -3 i- MISC :E. LLANEOUS ............................................................................. -33- -2- COMMON INTEREST COMMUNYrY NUMBER 56 A Planned Community CRYSTAL BAY DECLARATION This Declaration is made in the County of Carver, State of Minnesota, on this 11~ day of March 2002, by Kllngelhutz Development Company, a Mirmesota corporation (the "Declarant"), pursuant to the provisions of Minnesota Statutes Chapter 51513, known as the Minnesota Common Interest Ownership Act (the "Act"), for the purpose of creating Crystal Bay, a planned community. WI~.RF_,AS, Declarant is the owner of certain real property located in County, Minnesota, legally descn'bed in Exhibit A attached hereto and Declarant desires to submit said real property and all improvements thereon (collectively the "Property") to the Act; and WF~.REAS, Declarant desires to reserve the right and option, exercisable in Declarant's sole discretion, to add all or part of the propert7 legally described in Exhibit D attached hereto (the "Additional Real Estate") to the Property; and WFtF. REAS, Declarant desires to establish on the Property, and any Additional Real Estate added thereto, a plan for a p~anent residential community to be owned, occupied and operated for the use, health, safety and welfare of its resident Owners and Occupants, and for the purpose of preserving the value, the structural quality, and the original architectm'al and aesthetic character, of the Property; and WIt~.REAS, the Property is not subject to an orclin~nce referred to in Section 515B.i-106 of the Act, governing conversions to common interest ownership, and is not subject to a m~r association as defined in the Act; and ~'IEREAS, Crystal Bay Homeowners Association, Inc., a Minnesota non-profit corporation, has been formed as unit owners association to receive the power to attend to and effectuate policies and programs for the Property, to administer and enforce the covenants and restrictions herein, and to collect and disburse the assessments and charges herein.~fter created. NOW, THEREFORE, Declamut makes the Declaration and submits the Property to the Act as a planned community under the name "Crystal Bay Homeowners" initially consistiug of the Units referred to in Section II, declaring that thi~ Declaration shall constitute covenants to run with the Property, and that the Property, and all Additional Real Est.t~ ~aa~d thereto, shall be owned, used, occupied and conveyed subject to the covenants, restrictions, easements, charges and liens set forth herein, all of which shall be binding upon all Persons owning or acquiring any right, title or -3- interest therein, and their heirs, personal representatives, successors and assigns. SECTION I DEFI/hVlTION$ The following words when used in the Governing Documents uhall have the following meanings (unless the context indicates otherwise): 1.1 "Additional Real Estate" shall mean the real property legally described in Exhibit D, inclnclin£ all improvements located thereon now or in the future, and all easements and rights appurtenant thereto, which property Declarant ha~ the right to add to the common interest community. 1.2 "Associa~on" shall mean Crystal Bay Homeownen Association, Inc., a nonprofit corporation which is governed pursuant to Chapter 317A of the laws of the State of Minnesota and Minnesota Statutes Section 515B.3-101, whose members consist of all Owners as defined herein. 1.3 "Boa/d" shall mcan the Board of Directors of tha Association as provided for in the Bylaws. 1.4 "B.v/aw$" shall mean the Bylaws governing the opcxation of thc Association, as amended from time to time. 1.5 "Common Element~" uhall mean all parts o£the Property except the Units, including all improvements thereon, owned by the Association for the common benefit of the Owners and Occupants. The Common Elements are legally described in Exlfibit C attached hereto. 1.6 "Common Expenses" shall mean and include all expenditures made or liabilities incurred by or on behalf of the Axsodafion and incident Sa its operation, including without limitation allocations to reserves and those items specifically identified as Common Expenses in the Declaration or Bylaws. 1.7 "Dwelling" shall mean a part of a building consisting of one or more floors, designed and intended for occupancy as a single family residence, and located within the boundaries of a Unit The Dwelling includes any garage atla~hect thereto or otherwise included within the boundaries of the Unit in which the Dwelling is located. 1.8 "Eligible Mortgagee" shall mean a person or entity owning a mortgage on 1.9 1AO 1.11 1.12 1.13 1.14 1.15 1.16 1.17 1.18 any Unit, which mortgage is first in priority upon foreclosure to all othc-r mortgages wh/ch affect the Unit, and which has requested the Association, in writing, to notify it regarding any proposed action which requires approval by a specified percentage of Eligible Mortgagees. "Governing Documents" shall mean this Declaration, and the Articles of Incorporation and Bylaws of the Association, as amended from time to time, all of which shall govern the use and operation of the Property. "Member" shall mean all persons who are members of the Association by virtue of being Owners as defined in this Declaration. The words "Owner" and "Member" may be used interchangeably in the Govern/nE Documents. "Occupanl' shall mean any person or persons, other than an Owner, in possession of or residing in a Unit. "Owner" shall mean a Person who owns a Unit, but excluding contract for deed vendors, mortgagees and other secured parties within the meaning o£ Section 515B.1-I03(29) of the Act. The term "Owner" includes, without limitation, contract for deed vendees and holders ora life estate. "Party Walt' shall mean the shared wall between two Dwellings. "Person" shall mean a natural individual, corporation, limited hability company, partnership, trustee, or other legal entity capable of holding title to real property. "_Plat" shall mean the recorded plat depicting the Property pursuant to the requl.rements of Section 515B.2-110(d) of the Act, and satisfying the requLrements of Minnesota Statutes Chapter 505, 508 or 508A, as applicable, including any amended or supplemental Plat recorded from time to time in accordance with the Act. "Property" as previously set forth above shall mean all of the real property submitted to tiffs Declaration. including the Dwellings and all other structures and improvements located thereon now and in the future. "Rules and Regulations" shall mean the Rules and Regulations of the Association as approved from time to time pursuant to Section 5.6. "Unit" shall mean any platted lot subject to this Declaration upon which a Dwelling is located or intended to be located, as shown on the Plat, including all improvements thereon, but excluding the Common Elements. -5- Any terms used in the Governing Documents, and defined in the Act and not in this Section, shall have the meanings set forth in the Act. SECTION 2 DESCRIPTION OF UNITS AND APPURTENANCES 2.1 Units. There are s/xty-eight (68) Units, ail of which are restricted exclusively to residential use. Each Unit constitutes a separate parcel of real estate. No additional Units may be created by the subdivision or conversion of Units pursuant to Section 515B.2-112 of the Act. The Urdt identifiers and locations of the Units are as shown on the Plat, wtdch is incorporated herein by reference, and a schedule of Units is set forth on Exhibit B. The Unit identifier for a Unit shall be its lot and block numbers and the subdivision name. 2.2 Unit Boundaries. The front, rear and side boundaries of each Unit shall be the boundary lines of the platted lot upon which the Dwelling is located or intended to be located as shown on the Plat. The Units shall have no upper or lower boundaries. Subject to this Section 2 and Section 3.2, all spaces, walls and other improvements within the boundaries of a Unit are a part of the Unit. 2.3 Access Easements. Each Unit shall be the beneficiary of au appurtenant easement for access to a public street or highway on or across the Common Elements as shown on the Plat, subject to any restrictions set forth in the Declaration. 2.4 Use and Enjoyment Easements. Each Unit shall be the beneficiary of appurtenant easements for use and enjoyment on and across the Common Elements, and for use and enjoyment of any Limited Common Elements allocated to the Unit, subject to any restrictions authorized by the Declaration. 2.5 Utili~ and Maintenance Easements. Each Unit shall be subject to aud shall be the beneficiary of appurtenant easements for alt services and utilities servicing the Units and the Common Elements, and for maintenance, repair and replacement a.s described in Section 13. 2.6 Encroachment Easements. Each Unit shall be subject to and shall be the beneficiary of the appurtenant easements for encroachments as described in Section 13. 2.7 Recorded Easements. The Property shall be subject to such other easements as may be recorded against it or otherwise shown on the Plat. 2.8 Easements are Appurtenant. All easements and sknilar rights burdening or benefiting a Unit or any other part of the Property shall be appurtenant thereto, and shall be -6- permanent, subject only to termination in accordance with the Act or the terms of the easement_ Any recorded easement benefiting or burdening the Property shall be consmxed in a manner consistent with, and not in conflict with, the easements created by this Declaration. 2.9 Impairment Prohibited. No person shall mater/ally restrict or impair any easement benefiting or burdening the Property; subject to the Declaration and the right of the Association to establish and enforce reasonable Rules and Regulations governing the use of the Property. 2.7 Declarant's Easements. Declarant shall have and be the beneficiary of easements for construction and sa. les act/v/ties as described in Section 15.6. SECTION 3 COM/VlON ELEMENTS .~dXrl) LIMITED COMMON ELEMENTS 3.1 follows: Common Elements. The Common Elements and their characteristics are as All of the Property not included within the Un/ts constitutes Common Elements. The Common Elements include those parts of the Property described in Exl-fibit C or designated as Common Elements on the Plat or in the Act. The Common Elements are owned by the Association for the benefit of the Owners and Occupants. The Common Elements shaft be subject to certain easements as described in Section 2, and to the rights of Owners and Occupants in Limited Common Elements appurtenant to their Un/ts. Subject to Sections 5, 6 and 9, aL1 maintenance, repMr, replacement, management and operation of the Common Elements shall be the responsibility of the Association. Common Expenses for the ma/ntenance, repair, replacement, management and operation of the Common Elements shall be assessed and collected from the Owners in accordance with Section 6. 3.2 Limited Common Elements. The Limited Common Elements are those parts of the Common Elements reserved for the exclusive use of the Owners and Occupants of the Un/ts to which they are allocated, and the fights to the use and enjoyment thereof are automatically conveyed with the conveyance of such Un/ts. The Limited Common Elements are described and allocated to the Un/ts as follows: Chutes, flues, ducts, pipes, wires, conduit or other utility installations, bearing walls, bearing columns, or any other components or fix~:ures lying partially within and any -7- bo partially outside the boundaries of a Unit, and serving only that Unit, are allocated to the Unit they serve. Any portion of such installations serving or affecting the function of more than one Unit or any portion of the Common Elements is a part of the Common Elements, but is not a Limited Common Element. Improvements such as decks, patios, balconies, shutters, awnings, window boxes, doorsteps, stoops, perimeter doors and windows, constructed as part oft. he original construction to serve a single Unit, and authorized replacements and modifications thereof, if located outside the Unit's boundaries, are Limited Common Elements allocated exclusively to that Unit. SECTION 4 ASSOCIATION MEMBERSlfflP: RIGHTS AND OBLIGATIONS Membership in the Association and the allocation to each Unit of a portion of the votes in the Association and a portion of the Common Expenses of the Association shall be governed by the following provisions: 4.1 Membership. Each Owner shall be a member of the Association by virtue of Unit ownership, and the membership shall be transferred with the conveyance of the Owner's interest in the Unit. An Owner's membership shall terminate when the Owner's ownership terminates. When more than one Person is an Owner ora Unit, all such Persons shall be members of the Association, but multiple ownership of a Unit shall not increase the voting rights allocated to such Unit nor authorize the division of the voting fights. 4.2 Voting and Common Expenses. Voting rights and Common Expense obligations are allocated equally among the Units; except that special allocations of Common Expenses shall be permitted as provided in Section 6.1. 4.3 Appurtenant Rights and Obligations. The ownership of a Unit shall include the voting rights and Common Expense obligations described in Section 4.2. Said rights, obligations and interests, and the title to the Units, shall not be separated or conveyed separately. The allocation of the rights, obligations and interests described in this Section may not be changed, except in accordance with the Governing Documents and the Act. 4.4 Authority to Vote. The Owner, or some nat-uml person designated to act as proxy on behalf of the Owner, and who need not be an Owner, may cast the vote allocated to such Un/t at meetings of the Association; provided, that if there are multiple Owners of a Unit, only the Owner or other Person designated pursuant to the provisions of the Bylaws may cast such vote. The voting rights of Owners are more fully described ha Section 3 of the Bylaws. SECTION ADMINISTRATION The administration and operation of the Association and the Property, including but not limited to the acts required of the Association, shall be governed by the following provSsions: 5.1 General. The operation and aamlnislration of the Association and the Property shall be governed by the Governing Documents, the Pules and Regulations, and the Act The Association shall, subject to the fights of the Owners set forth in the Governing Documents and the Act, be responsible for the operation, management and control of the Property. The Association shall have all powers described in the Governing Documents, the Act and the statute under which it is incorporated. Ail power and authority of the Association shall be vested in the Board, unless action or approval by the inc[ividual Owners is specifically required by the Governing Documents or the Act. Ail references to the Association shall mean the Association acting through the Board unless specifically stated to the contrary. 5.2 Operational Purposes. The Association shall operate and manage the Property for the purposes of (i) artministering and enforcing the covenants, restrictions, easements, charges and liens set forth in the Governing Documents and the Rules and Regulations (ii) maint~inlng, repairing and replacing those portions of the Property for which it is responsible and (iii) preserving the value and architectural uniform/ty and character of the Property. 5.3 Binding Effect of Actions. All agreements and determinations made by the Association in accordance with the powers and voting rights established by the Governing Documents or the Act shall be binding upon all Owners and Occupants, and their lessees, guests, heirs, personal representatives, successors and assigns, and ail secured parties as defined in the Act. 5.4 Bylaws. The Association shall have Bylaws. The Bylaws and any amendments thereto shall govern the operation and admirdstration oftha Association. 5.5 Management. The Board may delegate to a manager or managSng agent the management duties imposed upon the Association's officers and directors by the Governing Documents and the Act; provided, however, that such delegation shall not rel/eve the officers and directors of the ultimate responsibil/ty for the performance of their duties as prescribed by the Governing Documents and by law. 5.6 Rules and Regulations. The Board shall have exclusive authori~' to approve and implement such reasonable Rules and Regulations as it deems necessary fi-om time to time for the purpose of operating and administering the affairs of the Association and regulating the use of the property; provided that the Rules and Regulations shall not be inconsistent with the Gove.ming Documents or the Act. The inclusion in other parts of the Governing Documents of authority to approve Rules and Regulations shall be deemed to be in furtherance, and not in limitation, of the -9- authority granted by this Section. New or amended Rules and Regulations shall be effective only after reasonable notice thereof has been given to the Owners. 5.7 Association Asset~; Sur~lux Funds. All funds and real or personal property acquired by the Association shall be held and used for the benefit of the Owners for the purposes stated in the Governing Documents. Surplus remaining a.f[er payment of or provision for Common Expenses and reserves shall be credited against future assessments or added to reserves, as determined by the Board. SECTION 6 ASSESSMENTS FOR COMMON EXPENSES 6.1 General. Assessments for Common Expenses shall be determined and assessed against the Un/ts by the Board, in its discretion; subject to the limitations set forth in Section 6.2 regarding armual assessments, Section 6.3 regarding special assessments, and the requirements of Section 8.1 of the Bylaws. Assessments for Common Expenses shall include annual assessments a.ud may include special assessments. Assessments shall be allocated among the Units according to the Common Expense allocations set forth in Section 4.2, subject to the following qualifications: Any Common Expense associated with the maintenance, repair, or replacement of a Limited Common Element undertaken by the Association may be assessed exclusively against the Unit or Units to which that Limited Common Element is assigned, on the basis of (i) equal/ty, (ii) square footage of the area being maintained, repaired or replaced, or (ii/) the actual cost with respect to each Unit. Any Common Expense or portion thereof benefiting fewer than all of the Un/ts may be assessed exclusively against the Units benefited, on the basis of (i) equality, (ii) square footage of the area being maintained, repaired or replaced, or (iii) the actual cost incurred with respect to each Unit. The costs of insurance may be assessed in proportion to value, risk or coverage, and the costs of utilifies may be assessed in proportion to usage. Reasonable attorneys' fees and other costs incurred by the Association in connection w/th (i) the collection of assessments and (ii) the enforcement of the Govern/rig Documents, the Act, or the Rules and Regulations, against an Owner or Occupant or kis or her guests, may be assessed against the Owner's Unit. Fees, charges, late charges, fines and interest may be assessed as provided in Section 14. -10- Assessments levied under Section 515B.3-116 of the Act to pay a judgment a~ainst the A~sociation may be levied only agalust the Un/ts existing at the time the judgment was entered, in proportion to their Common Expense liabilities. If any damage to the Common Elerneuts or another Unit is caused by the act or omission of any Owner or Occupant, or his or her guests, the Association may assess the costs of repairing the damage exclusively against the Owner's Unit to the ex'tent not covered by insurance. If any installment of an assessment becomes more than thirty (30) days past due, then the Association may, upon ten (10) days written notice of the Owner, declare the entire amount of the assessment immediately due and payable in full. In the event Common Expense liabi//ties are reallocated for any purpose authorized by the Act, Common Expense assessments and any installments thereof not yet due shall be recalculated in accordance with the reallocated Common Expense liabilities. Assessments under Subsections 6.1 a through h shall not be considered special assessments as described in Section 6.3. 6.2 Annum Assessments. Annual assessments shall be established and levied by the Board, subject only to the 1Lm/tatious set forth in this section and in Section 6.3. Each ~nnual assessment shall cover all of the anticipated Common Expenses of the Association for that year. Annual assessments shall provide, among other things, for contributions to a separate reserve sufficient to cover the periodic cost of maintenance, repair and replacement of the Common Elements and those parts of the Un/ts for which the Association is responsible. Until a Common Expense assessment is levied, Declarant shall pay all accrued expenses of the common interest conununity. After a Common Expense assessment is levied, the annual assessment may be subsequently increased by the Board, subject to Section 6.2 c. Until the termination of the period of Declarant control described in Section 15.7, the increase in the annual assessment for any year shall not exceed the greater of (i) the increase in the U.S. Department of Labor Revised Consumer Price Index for Urban Wage Earners and Clerical Workers for All Items for the prior year; or (ii) 5% of the total annual assessment for the Association's previous year, unless such increase is approved by the vote of a majority of those Owners voting, in person or by proxy, at a meeting called for that purpose. Written notice of the meeting shall be sent to all Owners not less than 21 days nor more than 30 days in advance of the meeting. 6.3 Special Assessments. In addition to annual assessments, and subject to the !imlmtions set forth hereafter, the Board may levy in any assessment year a special assessment against all Units for the purpose of defraying in whole or in part (i) the cost of any foreseen or unbudgeted Common Expense, (ii) general or specific reserves for maintenance, repair or replacement, and (iii) the maintenance, repair or replacement of any part of the Property, and any fix-tures or other property related thereto. Notwithstanding the foregoing, any special assessment shall be subject to approval by the vote of a majority of those Owners voting, in person or by proxy, at an annual meeting or at a meeting called for that purpose. Written notice of the meeting shall be sent to all Owners as described in the Bylaws. 6.4 £iabiliry of Owners for Assessments. The obhgation of an Owner to pay assessments shall commence at the later of (i) the time at which the Owner acquires tide to the Unit, or (ii) the due date of the first assessment levied by the Board, subject to the alternative assessment program described in Section 6.6, The Owner at the time an assessment is payable with respect to the Unit shall be personally liable for the share of the Common Expenses assessed ag~ingt such Unit. Such liability shall be joint and several where there are multiple Owners of the Unit. The liability is absolute and unconditional. No Owner is exempt from liability for payment of his or her share of Common Expenses by right of set-off, by waiver of use or enjoyment of any part of the Property, by absence from or abandonment of the Unit, by the waiver of any other fights, or by reason of any claim against the Association or its officers, directors or agents, or for their failure to fulfill any duties under the Governing Documents or the Act. The Association may invoke the charges, sanctions and remedies set forth in Section 14, in addition to any remedies provided elsewhere in the Governing Documents, the Rules and Regulations, or by law, for the purpose of enforcing its fights hereunder. 6.5 Declarant'$ Alternative Assessment Program. The following alternative assessment program is established pursuant to Section 515B.3-115(a)(2) of the Act. Notwithstanding anyttfing to the contrary in this Section 6, if a Common Expense assessment has been levied, any Unit owned by Declarant for initial sale shall be assessed at the rote of 25% of the assessment levied on other Units of the same type until a certificate of occupancy has been issued with respect to the Declarant's Unit by the municipality in which the Unit is located. This reduced assessment shall apply to each Un/t owned by Declarant at the time that the Unit is created, and shall continue with respect to the Unit until the certificate of occupancy is issued for that Urfit. There are no assurances that th/s alternative assessment program will have no effect on the level of services for items set forth in the Association's budget. 6.6 Assessment Lien. The Association has a lien on a Unit for any assessment levied against that Unit from the time the assessment becomes due. If an assessment is payable in installments, the full mount of the assessment is a lien from the time the first insmllruent thereof becomes due. Fees, charges, late charges, fines and interest charges imposed by the Association pursuant to Section 515B.3-102(a)(10), (1t) and (12) of the Act are liens, and are enforceable as assessments, under this Section. Recording of the Declaration constitutes record notice and -12- perfection of any lien under this Section, and no further recordation of any notice of or claim for the lien is required. 6.7 Foreclosure of Lien; Remedies. A hen for Common Expenses may be foreclosed against a Unit under the laws of the State of Minnesota (i) by action, or (ii) by advertisement as a lien under a mortgage containing a power of sale. The Association, or its authorized representative, shall have the power to bid at the foreclosure sale and to acquire, hold, lease, mortgage and convey any Unit so acquired. The Owner and any other Person claiming an interest in the Unit, by the acceptance or assertion of any interest in the Unit, grants to the Association a power of sale and full authority to accomplish the 'foreclosure. The Association shall, in addition, have the right to pursue any other remedy at law or in equity against the Owner who falls to pay any assessment or charge against the Unit. 6.8 Lien Priority; Foreclosure. A lien under this Section is prior to all other liens and encumbrances on a Unit except (i) iiens and encumbrances recorded before the Declaration, (ii) any first mortgage on the Unit, and Cfi/) liens for real estate taxes and other governmental assessments or charges against the Unit. Notwithstanding the foregoing, if (i) a first mortgage on a Unit is foreclosed, (i/) the first mortgage was recorded on or after June 1, 1994, and (iii) no Owner redeems during the Owner's period of redempt/on provided by Chapters 580, 581, or 582, then the holder of the sheriffs cemificate of sale from the foreclosure of the first mortgage shall take title to the Unit subject to unpaid assessments for Common Expenses levied pursuant to Sections 515B.3-115(a), 0a)(1) to (3), .(i), and (1) of the Act which became due, without acceleration, during the six months mediately preceding the first day following the end of the Owner's period ofredemption: 6.9 Voluntary Conveyances; Statement of Assessments. In a voluntary conveyance of a Unit the buyer shalI not be personally liable for any unpaid assessments and other charges made by the Association against the seller or the seller's Unit prior to the time of conveyance to the buyer, unless expressly assumed by the buyer. However, the lien of such assessments shall remain against the Unit until satisfied. Any seller or buyer shall be entitled to a statement, in recordable fon-n, from the Association setting forth the amount of the unpaid assessments against the Unit, including all assessments payable in the Association's current fiscal year, which statement shall be binding on the Association, seller and buyer. 6.10 Special Fees Due upon Closing of lnitial Sale. There is a initial or special fee due from the purchaser to the Association at closing of the initial sale from Declarant to Purchaser in the amount of $300.00 per Unit for purposes of funding the Association's working capital account. This fee is calculated based on a flat amount of $300.00 for each Unit in P,2verwoods. -13- SECTION 7 RESTRICTIONS ON USE OF PROPERTY Al/Owners and Occupants, and all secured parties, by their acceptance or assertion of an interest in the Property, or by their occupancy of a Unit, covenant and agree that, in addition to any other restrictions which may be imposed by the Act or the Governing Documents, the occupancy, use, operation, alienation and conveyance of the Property shall be subject to the following restrictions: 7.1 General. The Property shall be owned, conveyed, encumbered, leased, used and occupied subject to the Governing Documents and the Act, as amended fi.om time to time. All covenants, restrictions and obligations set forth in the Governing Documents are in furtherance ora plan for the Property, and shall run with the Property and be a burden and benefit to al/Owners and Occupants and to any other Person acqniring or owning an interest in the Property, their heirs, personal representatives, successors and assigns. 7.2 Subdivision Prohibited. Except as permitted by the Act, no Unit nor any part of the Common Elements may be subdivided or partitioned without the prior written approval of all Owners and all secured parties holding first mortgages on the Units. 7.3 Residential Use. The Units shall be used by Owners and Occupants and their guests exclusively as pr/yarc, single family residential dwellings, and not for transient, hotel, commercial, business or other non-residential purposes, except as provided in Section 7.4. Any lease of a Urfit (except for occupancy by guests with the consent of the Owner) for a period ofless than seven (7) days, or any occupancy which includes any services customarily furnished to hotel guests, shall be presumed to be for transient purposes. 7.4 Business Use Restricted. No business, trade, occupation or profession of any kind whether carried on for profit or otherwise, shall be conducted, maintained or permitted in any Unit or the Common Elements; except (i) an Owner or Occupant residing in a Unit may keep and maintain his or her business or professional records in such Un/t and handle matters relating to such business by telephone or.correspondence therefrom, provided that such uses are incidental to the residential use, do not involve physical alteration of the Unit and do not involve any observable business activity such as sigms, advertising displays, bulk mailings, de//veries, or visitation or use of the Unit by customers or employees, and (ii) the Association may maintain offices on the Property for management and related purposes. 7.5 Leasing. Leasing of Units shall be allowed, subject to reasonable regulation by the Association, and subject to the following conditions: (i) that no Unit shall be leased for transient or hotel purposes, (ii) that no Unit may be subleased, (iii) that all leases shall be in writing, and (iv) that all leases shall provide that they are subordinate and subject to the provisions of the Governing Documents, the Rules and Regulations and the Act, and (v) that any fa/lure of the lessee to comply with the terms of such documents shall be a default under the lease. The Association may impose such reasonable Rules and Regulations as may be necessm-y to implement procedures for the leasing of Units, coasistent with this Sectior~ 7.6 Parking. Garages and parking areas on the Property shall be used only for parking of vehicles owned or leased by Owners and Occupants and their guests, and such other incidental uses as may be authorized in writing by the Association. The use of garages, driveways and other parking areas on the Property, and the types of vehicles and persona/property permitted thereon, shall be subject to regulation by the Association, including without limitation the right of the Association to tow illegally parked vehicles or to remove unauthorized personal property. 7.7 Animals. No animal may be bred, kept or maintained for business or commercial purposes, anywhere on the Property. However, the Board shall have the exclusive authority to prohibit, or to allow and regulate, by Rules and Regulations, the keeping of animals on the Property. The word "animal" shall be construed in its broadest sense and shall include all living creatures except human beings. 7.8 Quiet Enjoyment; Interference Prohibited. All Owners and Occupants and their guests shall have a right of quiet enjoyment in the/r respective Units, and shall use the Property in such a manner as will not cause a nuisance, nor unduly restrict, interfere with or impede the use of the Property by other Owners and Occupants and their guests. 7.9 Compliance with Law. No use shall be made of the Property which would violate any then existing municipal codes or ordinances, or state or federal laws, nor shall any act or use be permitted which could cause waste to the Property, cause a material increase in insurance rates on the Property, or otherwise cause any unusual liability, health or safety risk, or expense, for the Association or any Owner or Occupant. 7.10 Alterations. Except for those made by Declarant in consideration of its initial sale of a Unit, no alterations, changes, improvements, repaks or replacements of any .type, temporary' or permanent, slrucmral, aesthetic or otherwise (collectively referred to as "alterations") shall be made, or caused or allowed to be made, by an), Owner or Occupant, or their guests, in any part of the Corrmxon Elements, or in any part of the Unit which affects the Common Elements or another Unit or which is visible from the exterior of the Uuit, without the prior whtten authorization of the Board, or a committee appointed by it, as provided in Section 8. The Board, or the appointed committee if so authorized by the Board, shall have authority to establish reasonable criteria and requirements for alterations, and shall be the sole judge of whether the criteria are satisfied, 7. I 1 Time Shares Prohibited. The time share form of ownership, or any comparable form of lease, occupancy rights or ownership which has the effect of dividing the ownership or occupancy of a Unit into separate time periods, is prohibited. -15- 7.12 Access to Units. In case of emergency, all Units and Limited Common Elements are subject to entry, without notice and at any time, by an officer or member of the Board of the Association, by the Association's management agents or by any public safety personnel. Entry is also authorized for maintenance purposes under Section 9 and for enforcement purposes under Section 14. SECTION 8 ARCI3[ITECTURAL CONTROL 8.1 Restrictions on Alterations. The following restrictions and requirements shall apply to alterations on the Property: Except as expressly provided in this Section 8, and except for alterations made by Declarant in consideration of its initial sale of a Unit, no structure, building, addition, deck, patio, fence, wall, enclosure, window, exterior door, sign, display, decoration, color change, shrubbery, material topographical or landscap'mg change, nor any other exterior improvements to or alteration of any Dwelling or any other part of a Unit which is visible fi:om the exterior of the Unit (collectively referred to as "alterations"), shall be commenced, erected or maintained in a Unit, unless and nntil the plans and specifications showing the nature, kind, shape, height, color, materials and locations of the alterations shall have been approved in writing by the Board of Directors or a committee appointed by it. Notw/thstanding the foregoing, Declarant's written consent shall also be required for alterations until Declarant no longer owns any unsold Unit and has no further rights to add Additional Real Estate to the Property. The criteria for approval shall include and require, at a minimum, (~) substantial uniform/ty of color, size, location, type and design in relation to existing improvements and topography, (ii) comparable or better quality of materials as used in existing improvements, (iii) ease of maintenance and repair, (iv) adequate protection of the Property, the Association, Owners and Occupants from liability and liens ar/sing out of the proposed alterations, and (v) compi/ance with governmental laws, codes and regulations. Approval of alterations which encroach upon another Unit or the Common Elements shall create an appurtenant easement for such encroachment in favor of the Unit as to which the alterations are approved; provided,, that any easement for a deck or patio other than as origSnally constructed shall be approved by resolution of the Board of Directors and a file of such resolutions shall be maintained permanently as a part of the Association's records. d. Alterations described in Section 16 shall be governed by that Section. -16- 8.2 Review Procedures. The following procedures shall govern requests for alterations under this Section: Detailed plans, specifications and related information regarding any proposed alteration, in form and content acceptable to the Board of Directors, shall be submitted to the Board of Directors at least sixty (60) days prior to the projected commencement of conslruction. No alterations shall be commenced prior to approval. The Board of Directors shall give the Owner written notice of approval or disapproval. If the Board of Directors fails to approve or disapprove within SiXty (60) days after receipt of said plans and specifications and all other information requested by the Board of Directors, then approval will not be required, and tiffs Section shall be deemed to have been fully complied with so long as the alterations are done in accordance with the plans, specifications and related information which were submitted. If no request for approval is submitted, approval is denied, unless (i) the alterations are reasonably visible and (ii) no written notice of the violation has been given to the Owner in whose Unit the alterations are made, by the Association or another Owner, within slx (6) months following the date of completion of the alterations. Notice may be direct written notice or the commencement of legal action by the Association or an Owner. The Owner of the Unit in which the alterations are made shall have the burden ofproo£ by clear and convincing exddence, that the alterations were completed and reasonably visible for at least six (6) months following completion and that the notice was not ~ven. 8.3 Remedies for Violations. The Association may undertake any measures, legal or administrative, to enforce compliance with this Section and shall be entitled to recover from the Owner causing or pertaining the violafion all attorneys' fees and costs of enforcement, whether or not a legal action is started. Such attorneys' fees and costs shall be a lien against the Owner's Unit and a personal obligation of the Owner as further described in the Act. In addition, the Association shall have the right to enter the Owner's Unit and to restore any part of the Dwelling or Unit to its prior condition if any alterations were made in violation of th/s Section, and the cost of such restoration shall be a personal obligation of the Owner and a lien against the Owner's Unit as further described in the Act. -17- SECTION 9 MAINTENANCE 9.1 Maintenance by ,4ssociation. The Association shall provide for al/maintenance, repaJ.r or replacement (collectively referred to as "maintenance") of the Common Elements. In addition, for the purpose of preserving the architectural character, quality, nn~form~ty and high standards for appearance o£the Property, the Association shall (i) provide for exterior maintenance upon the Dwelling in each Unit that is subject to assessment as follows: paint and replace roofs, gutters, downspouts, decks, garage doors (except hardware), and exterior siding and other bui/ding surfaces, (ii) provide for lawn, shrub and tree maintenance on all Units, except for watering, ('~) repair, maintain and replace the main sewer and water lines and lateral lines serving each DweLling, to the point where such lateral lines physically intersect with the wails of the Dwelling on either side of the Special Mechanical Corridor described in Section 13.3.b. hereof. The Association's obligations shall exclude patios, entry doors, door hardware, air conditioning equipment, glass and window fi:ames, foundations and foundation walls, s~-uctural members and any other items not speci~cally referred to in this Section, unless otherwise approved under Section 9.2. In addifien, the Association shall provide for snow removal from the private driveway areas, lawn mowing and spr~der system maintenance. The Association shall have easements as described in Section 13 to perform its obligations under this Section 9. 9.2 Optional Maintenance by Association. In addition to the maintenance described in this Section the Association may, with the approval of a majority of votes cast in person or by proxy at a meeting called for such purposes, undertake to provide additional exterior maintenance to the Units or Dwellings, or maintenance of water and sewer systems within the Units. 9.3 Maintenance by Owner. Except for the exterior maintenance required to be provided by the Association under Section 9.1 or 9.2, all maintenance of the Dwellings and Urdts shall be the sole responsibility and expense of the Owners thereof. However, the Owners and Occupants shall have a duty to promptly notify the Association of defects in or damage to those parts of the Property which the Association is obligated to maintain. The Association may requ/re that any exterior maintenance to be performed by the Owner be accomplished pursuant to specific uniform criteria established by the Association. The Association may also undertake any exterior maintenance which the responsible Owner fails to or improperly performs and assess the Unit and the Owner for the cost thereof. 9.4 Damage Caused by Owner. Notwithstanding any provision to the contrary in this Section, if, in the judgment of the Association, the need for maintenance of any part of the Property. is caused by the willful or negligent act or omission of an Owner or Occupant, or his or her guests, or by a condition in a Unit which the Owner or Occupant has willfully or negligently al/owed to ex/st, the Association may cause such dam~e or condition to be repaired or corrected (and enter upon any Unit to do so), and the cost thereof may be assessed against the Unit of the Owner -18- responsible for the damage. In the case of party wails between Dwellings, the Owners of the affected Dwellings shall be liable as provided in Section I0. SECTION 10 PARTY WALLS 10.1 General Rules of Law to A£ply. Each Dwell/ng wall built as part of the original construction of the Dwell/ng and located on the boundary line between Units shall constitute a party wall, and, to the extent not inconsistent with the provisions of this Section, the general rules of law regarding party walls and liability, for property damage due to negligent or willful acts or omissions shall apply thereto. 10.2 Repair and Maintenance. The Owners of the Units which share the party wail shall be responsible for the maintenance repair and replacement of the party wall in proportion with their use; provided (i) that any maintenance, repair or replacement necessary due to the acts or omissions of a certain Owner or Occupant sharing such party wall shall be paid for by such Owner, and (ii) that the Association may contract for and supervise the repair of damage caused by an O~vaer or Occupant and assess the Owners for their respective shares of the cost to the ex-tent not covered by insurance. 10.3 Destruction by Fire or Other Casualty. If a party wall is destroyed or damaged by fire or other casualty, any Owner who has use of the wall may, w/th the consent of the Association, restore it, and the other Owner shall promptly reimburse the Owner who restored the wall for his or her share of the cost of restoration thereof; provided, however, that the cost of restoration resulting from destruction or other casualty resulting from the acts or omissions of any Owner shall be the financial responsibility of such Owuer, and the Association may assess the responsible Owner for his or her share of the costs, without prejudice to the right of an Owner to recover a larger contribution from the other Owner. Insurance claims shalI be made promptly following any casualty. 10.4 Weatherproofing. Notwithstanding any other provision of this Section, any Owner who, by his or her negligent or willful act, causes a party wail to be exposed to the elements shall bear the whole cost of the repairs necessary for protection against such elements. 10.5 Right to Contribution Runs W~th Land. The right of any Owner to contribution from any other Owner under this Section shall be appurtenant to the Unit and shall pass to such Owner's assigxa and successors in rifle. 10.6 Arbitration. In the event of any dispute arising concerning a party wall, and if the same is not resolved v~thin tkirty (30) days of the event causing the dispute, the matter shall be submitted to binding arbitration under the rules of the American Arbitration Association, upon the -19- written demand of the Association or any Owner whose Dwelling shares the party wall. Each party agrees that the decision of the arbitrators shall be final and conclusive of the questions involved. The fees of the arbitrators shall be shared equally by the parties, but each party shall pay its own attorney fees or other costs to prove its case. SECTION 11 INSURANCE 11.1 Required Coverage. The Association shall obtain and maintain, at a minimum, a master policy or pol/cies of insurance in accordance with the insurance requirements set forth in the Act and the additional requirements set forth herein, issued by a reputable insurance company or compauies authorized to do business in the State of Minnesota, as follows; Property Insurance in broad form covering all risks of physical loss in an amount equal to one hundred percent (100%) of the insurable "replacement cost" oft he Property, less deductibles, exclusive of land, footings, excavation and other items normally excluded from coverage (but including all building service equipment and machinery). The policy or policies shall cover personal property owned by the Association. The policy or policies shall also contain "Inflation Guard" and "A~eed Amount" endorsements, i.f reasonably available. Such policy or policies shall include such additional endorsements, coverages and limits with respect to the foregoing and other b~Tsrds as may be required from time to time by the regulations of the FHA or Federal National Mortgage Association ("FNMA") as a precondition to their insuring, purchasing or financing a mortgage on a Un/t. The Board may also, on behalf of the Association, enter into binding written agreements with a mortgagee, insurer or servScer, including without limitation the FHA or FNMA, obligating the Association to keep certain specified coverages or endorsements in effect. Comprehensive pubhc 1/ability insurance covering the use, operation and maintenance of the Common Elements, with rainimum lira/ts of $1,000,000 per occurrence, against claims for death, bodily injury and property damage, and such other risks as are customarily covered by such policies for projects similar in construction, location and use to the Property. The policy shall contain a "severability of interest" endorsement which shall preclude the insurer from deny~g the claim of an Owner or Occupant because of negligent acts of the Association or other Owners or Occupants. The policy shall include such additional endorsements, coverages and I/rrfits with respect to such hazards as may be required by the regulations of the FHA or FNMA as a precondition to their insuring, purchasing or financing a mortgage on a Unit. -20- Fidelity bond or insurance coverage against dishonest acts on the part of directors, officers, manager, trustees, employees or persons responsible for handling funds belonging to or administered by the Association if deemed to be advisable by the Board or required by the regulations of the FHA or FNMA as a precondition to the purchase or financing of a mortgage on a Unit. The fidelity bond or insumuce shall name the Association as the named insured and shall,/f required by the regulations of the FHA or FNMA as a precondition to their insuring, purchasing or financing of a mortgage on a Unit, be written in an mount equal to the greater of (i) the estimated maximum of Association funds, including reserves, in the custody of the Association or management agent at any given time while the bond is in force, or (ii) a sum equal to three months aggregate assessments on all Units plus reserves. An appropriate endorsement to the policy to cover any persons who serve without compensation shall be added if the pohcy would not otherwise cover volunteers, or a waiver of defense based upon the exclusion of persons serving without compensation shall be added. d. Workers' Compemation insurance as required by law. Directors' and officers' liability insurance with such reasonable 1/mits and coverages as the Board shall determine from time to time. f. Such other insurance as the Board may determine from time to t/me to be in the best interests of the Association and the Owners. 11.2 Premiums; Improvements; Deductibles. Ail insurance pren~ums shall be assessed and paid as a Common Expense. The insurance need not cover improvements and betterments to the Units installed by Owners, but if improvements and betterments are covered, any increased cost may be assessed agaln~ the Units affected. The Association may, in the case ora claim for damage to a Unit, (i) pay the deductible amount as a Common Expense, (ii) assess the deductible amount against the Un/ts affected in any reasonable manner, or (/ii) require the Owners of the Units affected to pay the deductible amount directly. 11.3 Loss Payee; Insurance Trustee. Ali insurance coverage maintained by the Association shall be written in the name of, and the proceeds thereof shall be payable to, the Association (or a quaiL.fled insurance trustee selected by it) as trustee for the benefit of the Owners and secured parties, including Eligible Mortgagees, which suffer loss. The Association, or any insurance trustee selected by it, shall have exclusive authority to negotiate, settle and collect upon any cia/ms or losses under any policy ma/ntained by the Association. 11.4 IVaivers of Subrogation. All policies of insurance shall contain waivers of subrogation by the insurer against the Association, or an Owner, members of the Owners household, officers or directors, as applicable, and, if available, waivers of any defense based on co- insurance or of invalidity from any acts of the insured. -21- 11.5 Cancellation; Notice of Loss. Al/ pohcies of proper'Er insurance and comprehensive l. iabihty insurance maintained by the Association shall provide that the policies shall not be canceled or substantially modified, for any reason, without at least thirty (30) days prior written notice to the Association, to the FHA or FNMA (if applicable), all of the insureds and all Eligible Mortgagees. 11.6 Restoration in Lieu of Cash Settlement. All policies of property insurance maintained by the Association shall provide that, despite any provisions giving the insurer the right to elect to restore damage in lieu ora cash settlement, such option shall not be exercisable (i) without the prior written approval of the Association (or any Insurance Trustee) or (ii) when in conflict with provisions of any insurance trust agreement to which the Association may be a party, or any requirement by law. 11.7 No Contribution. Ali pohcies of insurance maintained by the Association shall be the prima.fy insurance where there is other insurance in the name of the Owner covering the same property, and may not be brought into contribution with any insurance purchased by Owners or their Eligible Mortgagees. 11.8 Effect of Acts Not Within Association's Control All policies of insurance maintained by the Association shall provide that the coverage shall not be voided by or conditioned upon (i) any act or omission of an Owner or E1/gible Mortgagee, unless acting witkin the scope of authority on behalf of the Association, or (ii) any failure of the Association to comply with any warranty or condition regarding any portion of the Property over which the Association has no control. 11.9 Owner's Personal Insurance. Each Owner may obtain additional personal hnsurance coverage at his or her own expense coveting fire and other casualty to the Unit, personal property or persona/liability. All insurance policies mah2tained by Owners shall provide that they are without contribution as against the insurance purchased by the Association. SECTION 12 RECONSTRUCTION, CONDEMNATION AND ENIINENT DOMA~ 12.1 Reconstruction. The obligations and procedures for the repair, reconstruction or disposition of the Property following d~mage or deslrucfion thereof shall be governed by the Act. Any repair or reconstruction shall be substantially in accordance with the plans and specifications of the Property as initially constructed and subsequently improved. The Association shall have all authority necessary to cause the Property to be reconstructed, including without limitation the authority (i) to require the Owners to enter into reconstruction contracts on their respective Units, or (ii) to contract for the reconstruction of the Units on behalf of the Owners. Notice of substantial -22 - dm'ua, ge or destruction sb~l! be given pursuant to Section 18.10. 12.2 Condemnation and Eminent Domain. In the event of a taking of any part of the Property by condemnation or eminent domain, the provis/ons of the Act shall govern; provided, that notice shall be given pursnant to Section 18.10. Eligible Mortgagees shall be entitled to priority for condemuation awards in accordance with the priorities established by the Act and the Governing Documents, as their interests may appear. 12.3 Notice. All Elig/ble Mortgagees shall be entitled to receive notice of any condemnation proceedings or substantial destruction of the Property, and the Association shall give written notice thereof to an Eligible Mortgagee pursuant to Section 18.I0. SECTION 13 EASEMENTS 13.1 Eusementfor Encroachments, Each Unit and the Common Elements, and the rights of the Owners and Occupants therein, shall be subject to an exclusive easement for encroachments in favor of the adjoiniug Units for fireplaces, walls, roof overhangs, ak conditioning systems, decks, balconies, porches, patios, utility installations and other appurtenances (i) which are part of the original construction of the adjoixfing Unit or the Property or (ii) which are added pursuant to Section §. If there is an encroachment by a Dwelling, or other building or ~nprovement located in a Un/t, upon another Unit or Dwelling as a result of the construction, reconstruction, repair, shifSng, settlement or movement of any part of the Property, an appurtenant easement for the encroachment, for the use, enjoyment and habilation of any encroaching Dwelling, building or improvement, and for the maintermnce thereof, shall exist; provided that with respect to improvements or alterations added pursuant to Section 8, no easement shall exist unless the same have been approved, and the proposed improvements constructed, as required by this Declaration, Such easements shall continue for as long as the encroachment exists and shall not affect the marketability of ritie. 13.2 Easement for Maintenance, Repair, Replacement and Reconstruction. Each Unit, and the rights oft. he Owners and Occupants thereof, shall be subject to the r/ghts of the Association to an exclusive, appurtenant easement on and over the Units for the purposes of maintenance, repair, replacement and reconstruction of the Units, and utilities serving the Units, to the extent necessary to fulfill the Association's obligations under the Governing Documents. 13.3 Utilities Easements. The Property shall be subject to non-exclusive, appurtenant easements for all utilities, water and sewer, and similar services, which exist from time to time, as constructed or referred to in the Plat, or as otherwise described in this Declaration or any other duly recorded insmm~ent. a. General non-exclusive Easemen~ Each Unit, and the rights of the Owners and -23- Occupants thereof, shall be subject to a non-exclusive easement in favor of the other Units for all such services, including without limitation any sewer or water lines servicing other Units. Each Unit shall also be subject to an exclusive easement in favor of the Association and all util/ties companies providing service to the Units for the installation and maintenance of utilities metering devices. St~ecial Mechanical Corridor Easernen~ Certain Units identified on Exhibit E attached hereto, and the fights of the Owners and Occupants thereof, shall also be subject to a non-exclusive easement in favor of the other Un/ts, the Association and all utilities companies providing service to the Units for the installation and maintenance, repair and replacement of utilities serdces to the Units tkrough the *'Special Mechanical Corridor" described on Exhibit E attached hereto. Each Special Mechanical Corridor shall be a part of the Un/ts and Dwellings that it serves, and is not a part of the Common Elements. 13.4 License in Favor of the City of Chaskra Declarant hereby grants to the City of Chaska, a license to enter upon the common Elements described in Exhibit C hereto, for the purpose of inspecting, maintaining mud repairing the sanitary sewer and water facilities located therein. The grant of license set forth in this paragraph 13.4 is exclusively for the purposes set forth herein and does not create a license or right of use in favor of the public. Notwithstanding any other provisions of this Declaration, this Paragraph 13.4 may not be modified or mended without the written consent of the City of Chaskm 13.5 Continuation and ScoRe of Easements. Notwithstanding anything in this Declaration to the contrary, in no event shall an Owner or Occupant be den/ed reasonable access to his or her Unit or the right to utility services thereto. The easements set forth in this Section shall supplement and not limit any easements described elsewhere in this Declaration or recorded, and shall include reasonable access to the easement areas through the Units and the Common Elements for purposes of maintenance, repair, replacement and reconstruction. SECTION 14 COM]PLI_42NCE AND REMEDIES Each Owner and Occupant, and any other Person owning or acquixing any interest in the Property, shall be governed by and comply with the provisions of the Act, the Governing Documents, the Rules and Regulations, the decisions of the Association, and such amendments thereto as may be made from time to t~rne. A failure to comply shall entitle the Association to the relief set forth in this Section, in addition to the fights and remedies authorized elsewhere by the Governing Documents and the Act. 14.1 Entitlement to Relief. The Association may commence legal action to recover sums -24- due, for damages, for injunctive relief or to foreclose a hen owned by it, or any combination thereof, or an action for any other relief authorized by the Governing Documents or available at law or in equity. Lega/relief may be sought by the Association againgt any Owner, or by an Owner against the Association or another Owner, to enforce compliance with the Governing Documents, the Rules and Regulations, the Act or the decisions of the Association. However, no Owner may withhold any assessments payable to the Association, or take (or omit) other action in violation of the Governing Documents, the Rules and Regulations or the Act, as a measure to enforce such Owner's position, or for any other reason. 14.2 Sanctions and Remedies. In addition to any other remedies or sanctions, expressed or implied, administrative or legal, the Association shall have the fight, but not the obligation, to implement any one or more of the following actions against Owners and Occupants and/or their family, guests, tenants or invitees, who violate the provisions of the Governing Documents, the Rules and Regulations or the Act: Commence legal action for damages or equitable relief in any court of competent jurisdiction. bo Impose late charges in any reasonable amount as determined by the Board of D/rectors in its discretion from 6me to time for each past due assessment or installment thereof, and any other amounts lawfully assessed against an Owner or a Unit and interest at up to the highest rote permitted by law. In the event of default of more than thirty (30) days in the payment of any assessment or installment thereof, all rem~irfing installments Of assessments assessed against the Urfit owned by the defaulting Owner may be accelerated and shall then be payable in full if all delinquent assessments, together with all costs of collection and late charges, are not paid in full prior to the effective date of the acceleration. Reasonable advance written notice of the effective date of the acceleration shall be given to the defaulting Owner. Impose reasonable fines, penalties or charges for each violation of the Act, the Governing Documents or the Rules and Regulations of the Association. Suspend the rights of any Owner or Occupant and their fam/ly, guests, tenants or invitees to use any Common Element amenities; provided, that this Iimitation shall not apply to Limited Common Elements or deck, balcony, porch or patio easements, appurtenant to the Unit, and those portions of the Common Elements providing utilities service and access to the Unit. Such suspensions shall be limited to periods of default by such Owners and Occupants in their obligations under the Governing Documents, and for up to thirty (30) days thereafter, for each violation. f. Restore any portions of the Common Elements or l.imlted Common Elements -25- damaged or altered, or allowed to be damaged or altered, by any Owner or Occupant or iris or her family, guests, tenants or invitees in violation of the Governing Documents, and to assess the cost of such restoration against the responsible Owners and their Units. Enter any Unit or Limited Common Element in which, or as to which, a violation or breach of the Governing Documents exists which materially affects, or is Likely to materially affect in the near furore, the health or safety of the other Owners or Occupants, or their guests, or the safety or soundness of any Dwelling or other part of the Property or the property of the Owners or Occupants, and to abate and remove, at the expense of the offending Owner or Occupant, any structure, thing or condition in the Unit or Limited Common Elements which is causing the violation; provided, that any improvements which are a part of a Unit may be altered or demolished only pursuant to a court order or with the agreement of the Owner. Foreclose any lien arising under the provisions of the Governing Documents or under law, in the manner provided for the foreclosure of mortgages by action or under a power of sale in the state where the Property is located 14.3 Rights to Hearing. In the case of imposition of any of the remedies authorized by Section 14.2 d., e., f. or g. of this Section, the Board shall, upon written request of the offender, grant to the offender a fair and equ/table hearing as contemplated by the Act The offender shall be given notice of the nature of the violation and the right to a hearing, and at least ten (10) days with/_u which to request a hearing. The hearing shall be scheduled by the Board and held within fhlrty (30) days of receipt of the heating request by the Board, and with at least ten (10) days prior written notice to the offender. If the offending Owner fails to appear at the hearing then the fight to a heating shall be waived and the Board may take such action as it deems appropriate. The decision of the Board and the rules for the conduct of hearings established by the Board shall be fln~l and binding on all parties. The Board's decision shall be delivered in writing to the offender within ten (10) days following the hearing, ff not delivered to the offender at the hearing. 14.4 I, ien for Charges, Penalties, etc. Any assessments, charges, fines, penalties or interest imposed under th/s Section shall be a lien against the Unit of the Owner or Occupant against whom the same are imposed and the personal obligation of such Owner in the same manner and with the same priority and effect as assessments under Section 6. The lien shall attach as of the date of imposition of the remedy, but shall not be final as to v/olafions for which a heating is held until the Board gives written notice following the heating. Ail remedies shall be cumulative, and the exercise of, or failure to exercise, any remedy shall not be deemed a waiver of the right to pursue any others. 14.5 Costs of Proceeding and Attorneys' Fees. With respect to any collection measures, or uny measures or action, legal, administrative, or otherwise, which the Association takes to enforce the provisions of the Act, Governing Documents or Rules and Regulations, whether or not -26- finally dete~ .~ined by a court or arbi~ator, the Association may assess the violator and his or her Unit with any expenses incurred in connection with such enforcement, including without limitation fines or charges previously imposed by the Association, reasonable attorneys' fees, and interest (at the nighest rote allowed by law) on thc delinquent mounts owed to the Association. 14.6 Liability of Owners' and Occupants' Act& An Owner shall be liable for the expense of any maintenance, repair or replacement of the Property rendered necessary by such Owner's acts or omissions, or by that of Occupants or ;Family, guests, tenants or invitees in the Owner's Unit, to the extent that such expense is not covered by the proceeds of insurauce carried by the Association or such Owner or Occupant However, any insurance deductible amount and/or increase in insurance rates, resulting fi.om the Owner's acts or omissions may be assessed, agaln~t the Owner responsible for the condition and against nis or her Unit. 14.7 Enforcement by Owners. The provisions of this Section shall not limit or impair the independent fights of other Owners to enforce the provisions of the Governing Documents, the Rules and Regulations, and the Act as provided therein. SECTION 15 SPECIAL DECLARANT RIGHTS Declarant hereby reserves exclusive and unconditional authority to exercise the following special declarant rights with/n thc meaning of Section 515B.1-103 (32) of thc Act for as long as it owns a Unit, or for such shorter period as may be specifically indicated: 15.1 Complete Improvements. To complete all the Un/ts and other improvements indicated on the Plat, or otherwise included in Dectaranfs development plans or allowed by the Declaration, and to make alterations in the Units and Common Elements to accommodate its sales facilities;. 15.2 Add Additional Real Estate. To add Additional Real Estate to the Property as described in Section 16. 15.3 Relocate Boundaries andAlter Units. To relocate boundahes between Units and to alter Units owned by it, to the extent permitted by Section 16. 15.4 Sales Facilities. To construct, operate and maintain a sales office, management office, model Units and other development, sales and rental facilities w/thin the Common Elements and any Units owned by Declarant fi:om time to time, located anywhere on the Property. 15.5 Signs. To erect and maintain sigmas and other sales displays offering the Un/ts for sale or lease, in or on any Unit owned by Declarant and on the Common Elements. -27- 15.6 Easements. To have and use easements, for itself, its employees, contractors, representatives, agents and prospective purchasers through and over the Common Elements for the purpose of exercising its special declarant rights; 15.7 Control of Associ,,t~on. To control the operation and adrninlstratiOll of the Association, including without limitation the power to appoint and remove the members of the Board purs~mnt to Section 515B.3-103 of the Act, until the earliest of: (i) voluntary surrender of conlrol by Declarant, (ii) an Association meeting which shall be held within 60 days atier conveyance to Owners other than a Declarant of 75% of the total number of Units authorized to be included in the Property or Cni) the date five (5) years following the date of the first conveyance ora Unit to an Owner other than a Declarant. Notwithstanding the foregoing, the Owners other than a Declarant shall have the right to nominate and elect not less than 33 1/3 % of the directors at a meeting of the Owners which shall be held w/thin 60 days following the conveyance by Declarant of 50% of the total number of Urfits authorized to be included in the Property. 15.8 Consent to Certain Amendments. As long az Declarant owns any unsold Unit for sale, Declarant's written consent shall be required for any amendment to the Goverrfing Documents or Rules and Regulations which directly or indirectly affects or may affect Declarant's rights under the Governing Documents or the Act. SECTION 16 RIGHTS TO ADD ADDITIONAL REAL ESTATE, RELOCATE UNIT BOUNDARIES AND ALTER UNITS 16.1 Declarant's Rights to Add Additional Real Estate. Declarant hereby expressly reserves the right to add the Additional Real Estate to the Property, by unilateral action under Section 515B.2-111 of the Act, subject to the following conditions: The right of Declarant to add the Additional Real Estate to the common interest community shall terafirmte ten (10) years after the date of recording of this Declaration or upon earlier express written withdrawal of such right by Declarant or a successor Declarant, unless extended by a vote of the Owners pursuant to Section 515B.2-106(2) of the Act. There are no other limitations on Declarant's fights, except as may be imposed by law. The Additional Real Estate is described in Exhibit D. The Additional Real Estate may be added to the Property in parcels consisting of one or more platted lots, or portions thereof, and may be added at different times. There are no assurances az to the times at wkich all or any part of the Additional Real Estate will be added to the Property, the order in which it will be added, the -28- number of parcels per phase nor the size of the parcels. Declarant is under no obligation to add the Additional Real Estate to the Property, and the Additional Real Estate may be developed by Declarant or its successors in interest for other purposes, subject only to approval by the appropriate government~/authorities. The maximum number of Units that may be created w/thin the Additional Real Estate described as such on the date of this Declaration is twenty-four (24). All Units created on the Additional Real Estate shall be restricted exclusively to residential use. Any Units, including Dwellings and other structures, created upon the Additional Real Estate, when and if added, shall be compatible with the other Dwellings, Structures and Units which are part of the Property in terms of architectural style, quality of construction, principal mater/als employed in construction and size; subject (i) to any changes required by governmental authorities or lenders and (~i) to any interior and minor exterior changes made by Declarant to meet changes in the market. All covenants and restrict/om contained in this Declaration affecting the use, occupancy and alienation of Units shall apply to all Units created on the Additional Real Estate. go The statements made in Subsections c through f above shall not apply to any Additional Real Estate wh/ch is not added to the Property. 16.2 Rights to Relocate Boundaries and Alter Units. Existing or future Units may be altered and Unit boundaries may be relocated only in accordance with the following conditions: Combining Units. An Owner may make improvements or altemtious to such Unit or, may, after acquiring an adjoining Unit, remove or alter any intervening partition or create apertures therein in accordance with Section 515B.2-113 of the Act and Subsection d of this Section. Relocation of Boundaries. The boundmSes between adjoining Units may be relocated in accordance with Section 515B.2-114 o£the Act and Subsection d of this Secfio~ Subdivision or Conversion. No add/tional Units may be created by the subdivision or conversion ora Unit (w/thin the meaning of the Act) into two or more Un/ts, nor into other Units, Common Elements or Limited Common Elements. d_ Requirements. The alteration, relocation of boundaries or other modification of Units or the Dwellings or other stractures located therein (collectively referred to -29- herein as "alteration" or "alterations") pursuant to this Section, Section 8, and the Act may be accomplished only in accordance with the following conditions: No Unit may be altered if, thereafter, the Dwell/rig located therein, or any other DwelLing affected by the alteration, would no longer be habitable or practicably usable for its intended purpose or would violate any law, code or orrlln~nce of any governmental authority having jurisdiction over the Property. (2) No alteration may be made which adversely affects the structural or functional integrity of any building system or the structural support or weather tight integrity of any portion of any building or other structure. (3) The prior written consent of the Association shall be required for any alteration, except alterations by Declarant. Where requ/red, such consent shall be requested in writing by each Owner whose Unit is proposed to be altered, accompanied by such explanation, drawings and specifications relating to the proposed alterations as may be reasonably required by the Association or the first mortgagee of the Unit. The Association shall give such Owner(s) notice in an expeditious manner, granting, denying or qualifying its consent. (4) As a precondition to consenting to alterations the Association may require, among other things, the following: (i) that all alterations will be done in a wor!crwnl~ke manner and without impairing the structural, mechanical or weather-tight integrity of the Building; (5) that the Common Elements and altered Units will be repaired and/or restored in the future as required by the Association; (ii/) that the construction of the alterations will not create dangerous conditions for any Owners or Occupants; (iv) that the Property, the first mortgagees and the Owners and Occupants will be protected from liens and other liabilSty arising from the alterations; and (v) that the alterations will be done in compliance with the applicable laws, regulations and ordinances of the governmental authorities having jurisdiction over the Property. (5) The Association may requ/re that the Owners of the Units to be altered pay all costs of processing and documentation for the request and the preparation and recording of any necessary to the Governing Documents, including without lim/tafion such costs as filing, architects and attorneys fees, by the Association in connection with the alterations. SECTION 17 AMENDMENTS -30- This Declaration may be amended by the consent of (i) Owners of Units to which are allocated at least sixty-seven percent (67%) of the votes in the Association, (ii) the percentage of Eligible Mortgagees (based upon one vote per first mortgage owned) required by Section 18 as to matters prescribed by said Section and (inf') the consent of Declarant to certain amendments as provided in Section 15.8. Consent of the Owners may be obtained in writing or at a meeting of the Association duly held in accordance with the Bylaws. Consents of Eligible Mortgagees and the Declarant shall be in writing, Any amendment ~hall be subject to any greater requirements imposed by the Act. The Amendment shall be effective when recorded as provided in the Act. An affidavit by the Secretary of the Association as to the outcome of the vote, or the execution of the foregoing agreements or consents, shall be adequate evidence thereof for all purposes, inclnalng without I/mitation, the recording of the ame~clment. SECTION 18 RIGttTS OF ELIGIBLE MORTGAGEES Notwithstanding anything to the contrary in the Governing Documents, and subject to any greater requirements of the Act or other laws, Eligible Mortgagees shall have the following rio~hts and protections: 18.1 Consent to Certain Amendments. The written consent of Eligible Mortgagees representing at least fifty-one (51%) percent of the Units that are subject to first mortgages held by Eligible Mortgagees (based upon one vote per first mortgage owned) shall be required for any Amendment to the Governing Documents which causes any change in the following: (i) voting rights; (ii) increases in assessments that raise the previously assessed amount by more than twenty- five (25%) percent, assessment liens, or priority of assessment liens; (in) reductions in reserves for maintenance, repair and replacement of Common Elements; (iv) responsibility for maintenance and repairs; (v) reallocation of interests in the Common Elements, or Limited Common Elements, or fights to their use; (vi) redefinition of any Unit boundaries; (vii) convertibility of Units into Common Elements or vice versa; (viii) expansion or contraction of the Property or the addition, annexation or withdrawal of property to or from the Property; (ix) hazard or fidelity insurance requixements; (x) leasing of Units; (xi) imposition of any restrictions on the leasing of Units; (xia') if the common interest community consists of 50 or more Units, a decision by the Association to establish self management when professional management is in effect as required previously by the Governing Documents or by an Eli~ble Mortgagee; (xili) restoration or repair of the Property (after a h.~?ard damage or partial condemnation) in a manner other than that specified in the Governing Documents; (xiv) any action to terminate the legal status of the corrunon interest community after substantial destruction or condemnation occurs; or (xv) any prov/sions that expressly benefit mortgage holders, or insurers or guarantors of mortgages. Notwithstanding the foregoing, implied approval of a proposed amendment shall be assumed when an Eligible Mortgagee fails to submit a response to any written proposal for an amendment within 30 days after it receives proper notice of -31- the proposal, provided that the notice was delivered by certified marl with a remm receipt requested. 18.2 Consent to Certain Actions. The written consent of Eligible Mortgagees representing at least sixty-seven (67%) percent of the Units that are subject to first mortgages (based upon one vote per first mortgage owned) shall be required to abandon or terminate the common interest subject to any greater requirements contained in the Act_ 18.3 Consent to Subdivision. No Unit may be partitioned or subdivided without the prior written approval of the Owner and Eligible Mortgagee thereof, and the Association. 18.4. No Right of First Refusal. The right of an Owner to sell, transfer or otherwise convey his or her Unit shal! not be subject to auy right of first refusal or similar restrictions. 18.5 Priority of I, ien. Any holder of a first mortgage on a Unit or any purchaser of a fn-st mortgage at a foreclosure sale, that comes into possession of a Unit by foreclosure of the first mortgage or by deed or assignment in lieu of foreclosure, takes the Unit flee of any claims for unpaid assessments or any other charges or liens imposed against the Unit by the Association which have accrued against such Unit prior to the acquisition of possession of the Unit by said first mortgage holder or purchaser; (i) except as provided in Section 6.7 and the Act and (ii) except that any unpaid assessments or charges with respect to the Unit may be reallocated among all Units in accordance with the/r interests in the Common Elements. 18.6 Priority of Taxes and Other Charges. All taxes, assessments and charges that may become liens prior to the first mortgage under state law shall relate only to the individual Units and not to the Property as a whole. 18.7 Priority for Condemnation Awards. No provision of the Governing Documents shall give an Owner, or any other party, priority over any rights of the Eli~ble Mortgagee of the Unit pursuant to its mortgage in the case of a distribution to such Owner of insurance proceeds or condemnation awards for losses to or a talcing of the Unit and/or the Common Elements. The Association shall ~ve written notice to all Eligible Mortgagees of any condemnation or eminent domain proceeding affecting the Property promptly upon receipt of notice from the condemning authority. 18.8 Requirements of Management Agreements. The term of any agreement for professional management of the Property may not exceed two (2) years. Any such a~eement must provide at a minimum for termination without penalty or termination fee by either party, (i) with cause upon (30) days prior written notice, and (ii) without cause upon ninety (90) days prior w~kten notice. 18.9 Access to Books and Records/Audit. Eligible Mortgagees shall have the right to examine the books and records of the Association upon reasonable notice during normal business -32- defend aga~n~ the action. 19.4 No~ie~. Unless specifically provided otherwise in the Governing Documents or the Act, all notices required to be given by or to the Association, ihe Board of Directors, the Association officers or the Owners or Occupaut~ ~h~ll be in writing and shall be effective upon hand delivery, or mailing if properly ad~essed with postage prepaid and deposited in the United States m~i]; except that registrations pursuant to Section 2.2 of the Bylaws shall be effective upon receipt by the Association. 19.5 Con. fliers Among Documents. In the event of any conflict among the provisions of the Act, the Declaration, the Bylaws or any Rules or Regulations approved by the Axsociafion, the Act shall control. As among the Declaration, Bylaws and Rules and Regulations, the Declaration sha~ control, and as between the Bylaws and the Rules and Regulations, the Bylaws shall control. IN WITNESS WlqE. REOF, the undersigned has executed this insmm~ent the day and year first set forth in accordance with the requirements of the Act 212 DEVEOPMENT COIVIPANY a M~n,~esota corporation Page 1 of 1 Jane KansJer From: Kyle [kyles@integraonline.com] Sent: Friday, September 13, 2002 12:37 PM To: Planning Dept Subject: Crystal Bay Development Jane it is my understanding that you will include these requests / comments in the commissioners packet. Please send me a response so I know you got this ... thanks Prior Lake Planning Commissioners: Please address the following at the planning meeting on 9/23 regarding the Crystal Bay Development 1. Will the four significant maple and ash trees behind units 9 & 10 be preserved? Please reference the picture I provided Jane. At this time, 9/13, there is no tree removal plan flied with the city based on the current plan. In fact, I think it would be nice to have the developer review both the tree removal plan and tree replacement plan on 9/23. 2. Before you vote, will you please summarize the modification (variances) the developer is requesting A general comment on the lake and pervious surface area I believe there is more direct run off into the lake due to development. About 10 years ago there was a study regarding the Prior Lake watershed, this study indicated that the direct run off into Prior Lake was about 15% of the total. That is, when it rains the majority of the direct run off, for the entire watershed, flows into Fish or Spring. Yes, it eventually ends up in Prior but not until Fish and Spring are at levels that can feed Prior. Today, I believe we get more direct run off into Prior, Spring and Fish probably do as well due to development around those lakes. So we get a double whammy, more direct runoff and both Spring and Fish fill up faster, so we get their water sooner then before. This is why, it is so important not to allow developers to exceed the pervious surface area percentage. For example, in the Crystal Bay development. Even though they may come in under the 30% overall impervious surface area there is still an increase of pervious surface of 30%. Currently, the land is 100% pervious after the development it will be 70% pervious and we will have "No Wake". The city will not allow individual homeowners to exceed the pervious surface area ordinance why should we allow developers to exceed it, Any clue what the direct run off into Prior is now. Would be an interesting fact. Can someone from the Watershed tell us. Page 1 of 1 Jane Kansier From: Dretzlaff2@aol.com Sent: Sunday, September 15, 2002 8:51 PM To: jkansier@cityofpriorlake.cam Subject: Crystal Bay Development Jane, 1 understand a packet regarding the Crystal Bay Development is being assembled to give to the planning commissioners. have one and only one concern, ts the developer exceeding ANY non pervious limits? IF so, please include the following input. Otherwise disregard it. This is being sent to you eight days prior to the meeting on the 23rd. You gave us no deadline to submit input, so I fully expect my statements to be timely and will be reviewed by the planning commitee. If this is not timely, email me asap with what I need to do to get this information to the city council prior to their vote on the issue. 1. I would like it clearly spelled out in the meeting on the 23rd that the developer is exceeding the ordinance's maximum percentage of non-pervious surface area to the total parcel. In the last meeting it was NOT clear. 2. If the developer exceeds it at one tier and not the other tiers, he is still breaking the ordinance requirements. 3. The situation is easily rectified. The developer must reduce the size of one or many of his units or eliminate a unit. This does not disolve the project, it just brings it to conformity once the developer makes this adjustment. Be mindful of the fact that the developer's capitalistic greed is clearly the only reason for requiring a variance. 4. The ordinance setting the maximum non- pervious surface percentage was calculated and implemented, not as a guide, not as a targeted average percentage, but as a maximum for each and every parcel of land being newly developed. 5. A statement was made in the last meeting that up to 35 individual units (albeit smaller units) could actually "fit" on this parcel and the developer is "giving" back to the community by only putting in 24 larger units, If you think about it, you will realize that the potential of up to 35 units is in error if the homes are greater than 900 SF. In essence, the additional driveways alone leading to the garages would put the plan over the maximum. The developer is going with fewer but larger units only because his ROI on the project is the highest using this strategy. Driveways produce significantly lower dollars per square foot as compared to actual living space per square foot. 6. Lastly, this donation of land as it's called by the developer makes me very uncomfortable as you the commisioners decide on what to recommend to the City Council. I have a hard time understanding the motivational factor as to why is a for profit corporation donating land to the county/city? Possibly there is a charitable answer to this. If this is the case, we as city/county residents are very appreciative. However, my fear is it's a strategy on the developer's part to sway you, the planning commitee to recommend a variance. This variance would allow the developer to exceed existing percentage limits of non-pervious sudace area. All I ask is that you consider these valid points prior to submitting your recommendations to the City Council. David Retzlaff 15596 Skyline Avenue NW Prior lake, Mn 447-4298 9/191200') 6A Case File #02-07 - 212 Development is requesting consideration of a Preliminary Plat and Preliminary PUD Plan to be known as Crystal Bay Townhomes consisting of 10.62 acres to be subdivided into lots for 26 townhomes. This property is located on the south side of CSAH 82, east of Fremont Avenue and ½ mile west of CSAH 21. Commissioners: We are still waiting for information from the developer on Crystal Bay. Hopefully we can send the info out by Friday. I'll send the Minutes out on Friday as well. Thanks, Connie PLANNING REPORT AGENDA ITEM: SUBJECT: SITE: PRESENTER: REVIEWED BY: PUBLIC HEARING: DATE: CASE FILE: 6B CONSIDER VARIANCES TO ALLOW AN 8 FOOT STOOP TO BE LOCATED 11.7 FEET FROM THE FRONT LOT LINE, A 6 FOOT EAVE/OVERHANG TO BE LOCATED 14.1 FEET FROM THE FRONT LOT LINE, AND A 27 FOOT WIDE DRIVEWAY 16994 MONROE AVENUE SW CYNTHIA KIRCHOFF, PLANNER JANE KANSIER, PLANNING COORDINATOR X YES NO SEPTEMBER 23, 2002 02-088 INTRODUCTION: Richard Gau is requesting variances to permit a 6 foot eave/overhang and 8 foot stoop to encroach into a required front yard setback on the property located at 16994 Monroe Avenue SW. The existing single family dwelling maintains a 19.9 foot front yard setback. The steps of the stoop are proposed to be 11.7 feet from the front property line and the cave/overhang over the garage is proposed to be 14.1 feet from the property line abutting Monroe Avenue. In conjunction with the stoop and cave addition, the applicant is also increasing the width of the driveway to 27 feet (see Attachment 1). The project was started without a building permit. The applicant requests the following variances: 1) An 8.3 foot variance from the permitted 20 foot from yard setback for the construction of an 8 foot stoop and 6 foot overhang (Zoning Ordinance Section 1102.402: Dimensional Standards). 2) A 3 foot variance from the maximum width of 24 feet for residential driveways (Zoning Ord'mance Section 1107.205. Driveways). BACKGROUND: On September 9, 2002, the Planning Commission held a public hearing on this item and unanimously voted to table the requests so that the applicant and staff could discuss other alternatives. On September 16, 2002, staff met with the applicant to present another alternative. The applicant feels the proposed design is the most appropriate for the 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (952) 447-4230 / Fax (952) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER Planning Report - Gau Variances September 9, 2002 Page 2 home's east facing elevation and would like to proceed with the original request. The staff asked Mr. Gau to elaborate these reasons in writing, but as of the date of this report (September 18, 2002) we have not received any additional information. The subject property was platted as Lot 12, Block 32, Spring Lake Village, in the 1850s, which was one of the first plats in Prior Lake. The site is zoned R-1 (Low Density Residential) and SD (Shoreland District). The platted dimensions of the lot are approximately 50 feet wide by 142 feet in depth for a total lot area of approximately 7,100 square feet. In 1983, a 5 foot variance was granted from the 25 foot required front yard setback and a 4 foot variance was granted from the 10 foot required side yard setback to allow for the construction of a single family dwelling with attached garage. DISCUSSION: According to the attached survey, the existing dwelling maintains a 19.9 foot setback from the property line abutting Monroe Avenue SW. An 8 foot stoop and 6 foot overhang/eave are proposed along the front of the home. The proposed front yard setback, as measured from the step of the stoop is 11.7 feet. The minimum front yard setback from Monroe Avenue for this property is 20 feet (because of the variance granted in 1983), thus the request for an 8.3 foot variance. In conjunction with other home improvements, the applicant is proposing to increase the width of the driveway to 27 feet. The zoning ordinance permits residential driveways to be a maximum of 24 feet in width at the public right-of-way. According to the survey, other applicable bulk standards, such as maximum impervious surface coverage, minimum setback from 170t~ Street SW, and minimum rear yard setback, are met. The zoning ordinance permits eaves to encroach 2 feet into a required yard, and Planning Report - Gau Variances September 9, 2002 Page 3 awnings and platform decks to encroach 5 feet into a required front yard. However, the proposed features are larger than the encroachments permitted by the zoning ordinance. The Spring Lake Townsite lots were platted 50 feet in width, thus many of the lots have been combined to provide a larger buildable area for modem year round dwellings; however, some of the single lots have received relief from zoning ordinance provisions to allow a reasonable use to be conslructed. Records on file at City Hall indicate that three properties within 350 feet received setback variances for the construction of residential structures. The applicant has indicated that the reason for the setback variance request is to "eliminate the potential of physical harm to anyone that uses the existing stairs...when leaving [the] residence in the winter when said stairs are iced over.., and ... add a touch of character to this 20 year old house." (See Attachment 2.) VARIANCE HARDSHIP STANDARDS Where by reason of narrowness, shallowness, or shape of a lot, or where by reason of exceptional topographical or water conditions or other extraordinary and exceptional conditions of such lot, the strict application of the terms of this Ordinance would result in peculiar and practical difficulties or exceptional or undue hardship upon the owner of such lot in developing or using such lot in a manner customary and legally permissible within the Use District in which said lot is located. The subject lot is only 50 feet in width and approximately 7,100 square feet in area. This lot does exhibit eXceptional conditions that result in practical difficulties upon the owner in constructing a single family dwelling, as permitted in the R-1 zoning district, however, variances have already been granted to allow for the construction of a reasonable use. The lot is relatively flat and rectangular in shape, so the topography and shape of the lot does not impact driveway width or location, so the property owner does not have a practical difficulty to warrant relief from the maximum driveway width permitted by the zoning ordinance. 2. Conditions applying to the structure or land in question are peculiar to the property or immediately adjoining property, and do not apply, generally, to other land or structures in the Use District in which the land is located. The 50 foot wide lot is a unique condition of the property, but is not exclusive to this subject lot or neighborhood. There are several subdivisions within the City of Prior Planning Report - Gau Variances September 9, 2002 Page 4 Lake that were platted with narrow lots. Furthermore, the property owner received relief to construct the existing single family dwelling. As mentioned previously, the conditions of the property do not impact the driveway width or location. 3. The granting of the proposed Variance is necessary for the preservation and enjoyment of a substantial property right of the owner. A single family dwelling with an attached two stall garage is present on the site, so the owner enjoys a reasonable use of the property. The inability to construct an 8 foot stoop is not impacting the overall enjoyment of the property. A smaller eave and stoop could provide the same protection from the elements and add interest to the architectural style of the home, without such a large variance. A 24 foot wide driveway offers ample area to park to vehicles side by side. The granting of the proposed Variance will not impair an adequate supply of light and air to the adjacent property, unreasonably increase the congestion in the public streets, increase the danger of fire, or endanger the public safety. The granting of the setback variance will neither impair an adequate supply of light and air to adjacent property nor increase congestion of public streets, but it will establish a precedent for an 11.7 foot front yard setback within the Spring Lake neighborhood, when a 25 foot front yard setback is required. Also, the driveway width variance will establish a precedent for other residential properties and may impact snow storage in the boulevard. The granting of the Variance will not unreasonably impact on the character and development of the neighborhood, unreasonably diminish or impair established property values in the surrounding area, or in any other way impair the health, safety, and comfort of the area. The granting of the setback variance does not appear to impair health and safety of the immediate area, but it will impact the character and development of the neighborhood by establishing a new front yard setback for the Spring Lake neighborhood. 6. The granting of the proposed Variance will not be contrary to the intent of this Ordinance and the Comprehensive Plan. One purpose of the zoning ordinance is to "prevent the overcrowding of land and undue concentration of structures and population by regulating the use of land and Planning Report - Gau Variances September 9, 2002 Page 5 buildings and the bulk of buildings in relation to the land surrounding them." The proposed 11.7 foot front yard setback is significantly less than the minimum 25 feet required, but the property is only required to maintain a 20 foot setback due to a previous variance, and appears to be inconsistent with the intent of the ordinance provision. The purpose of the maximum driveway width is to limit vehicular access to a public street, allow for adequate on-street parking availability, and provide an area for snow storage. A 24 foot wide driveway also allows parking for two vehicles. An additional 3 feet of driveway width appears inconsistent with the intent of the ordinance. 7. The granting of the Variance will not merely serve as a convenience to the applicant but is necessary to alleviate a demonstrable undue hardship or difficulty. The existing single family dwelling is approximately 20 feet from the property line, so any architectural feature that intends to provide protection from the elements and add interest on the front of the home would require a variance. However, the proposed features could be reduced in depth as to limit the amount of encroachment. Since the encroachment could be reduced, the setback variance would appear to serve as a convenience. Also, the increased driveway width serves as a convenience to the property owner. A driveway that complies with maximum zoning ordinance standards would still allow for ample ingress and egress to the property, as well as vehicle storage. 8. The hardship results from the application of the provisions of this Ordinance to the affected property and does not result from actions of the owners of the property. The subject site is 50 feet in width. The zoning ordinance requires lots within the R-1 zoning district to be 86 feet in width, so this lot is nonconforming. However, the fact that the property owner has proposed the addition that extends into the setback approved in 1983 and driveway width greater than permitted by ordinance makes the hardship self-ereated. 9. Increased development or construction costs or economic hardship alone shall not be grounds for granting a Variance. Although the addition will likely increase the value of the home, staff does not believe that it is the sole purpose of the request. Planning Report - Gau Variances September 9, 2002 Page 6 CONCLUSION: The applicant was granted relief from the zoning ordinance in 1983 to construct a reasonable use on the property. The dwelling was placed at the approved front and side yard setbacks, therefore any additions to the front or rear of the home would require an additional variance. The purpose of the current variance is to provide a safe entrance and interest to the home. Staff appreciates that the property owner wants to improve the entrance to the home. However, by granting the proposed setback variance the property owner would receive a greater benefit than other properties within the Spring Lake Townsite plat and the R-1 zoning district. Also, since a 24 foot wide driveway provides reasonable ingress/egress, the driveway width variance would establish a precedent for all residential properties. RECOMMENDATION: Staff believes that all nine-hardship criteria have not been met with respect to the requested variances to permit the 8 foot stoop, 6 foot cave/overhang, and 27 foot wide driveway. The applicant created the hardship by the design of the addition and the driveway. Staff could support a smaller front yard setback variance to improve the safety of the dwelling entrance, but not the proposal. The stafftherefore recommends denial of the requested variances as proposed by the applicant. ALTERNATIVES: Approve the variances requested by the applicant, or approve any variances the Planning Commission deems appropriate in the circumstances. In this case, the Planning Commission should direct staff to prepare a resolution with findings approving the variance requests. 2. Table or continue discussion of the item for specific purpose. 3. Deny the application because the Planning Commission finds a lack of demonstrated hardship under the zoning code criteria. ACTION REQUIRED: Staffrecommends Alternative #3. This requires the following motion: A Motion and second adopting Resolution 02-011PC denying the variances to allow a 11.7 foot front yard setback from the public fight-of-way abutting Monroe Avenue and a 27 foot wide driveway. L:\02FILES\02variances\02-088~PC Report.doc RESOLUTION 02-011PC A RESOLUTION DENYING VARIANCES TO PERMIT A 11.7 FOOT FRONT YARD SETBACK FOR AN 8 FOOT STOOP, A 14.1 FOOT FRONT YARD SETBACK FOR A 6 FOOT EAVE, AND A 27 FOOT WIDE DRIVEWAY BE IT RESOLVED BY the Board of Adjustment of the City of Prior Lake, Minnesota; FINDINGS Richard Gau has applied for variances from the Zoning Ordinance in order to permit the construction of an 8 foot stoop and a 6 foot eave addition to an existing single family dwelling and a 27 foot wide driveway on the property located in the R-1 (Low Density Residential) and SD (Shoreland Districts) at the following location, to wit; 16994 Monroe Avenue SW, Prior Lake, MN, legally described as follows: Lot 12, Block 32, Spring Lake Village, Scott County, Minnesota. The Board of Adjustment has reviewed the application for variances as contained in Case #02-088PC and held a hearing thereon on September 9, 2002. The Board of Adjustment has considered the effect of the proposed variance upon the health, safety, and welfare of the community, the existing and anticipated traffic conditions, light and air, danger of fire, risk to the public safety, the effect on property values in the surrounding area and the effect of the proposed variance on the Comprehensive Plan. Because of conditions on the subject property, the proposed variance will result in the impairment of an adequate supply of light and air to adjacent properties, unreasonably increase congestion in the public streets, increase the danger of fire, and danger to the public safety, unreasonably diminish or impair health, safety, comfort, morals or in any other respect be contrary to the Zoning Ordinance and Comprehensive Plan. 5. The proposed variance request is a result of the property owner's actions by designing the proposed addition within the required front yard setback and 1:\02files\02variances\02-088\deny resolution.doc 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372~1714 / Ph. (952) 447-4230 / Fax (952) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER the proposed driveway wider than permitted by ordinance. The applicant has control over the property, and as such, the applicant has created the hardship. There is an existing structure on the lot, so there is not a justifiable hardship caused, and that reasonable use of the property does exist without the granting of the variances. 7. The granting of the variances, as determined by the Planning Commission, is not necessary for the preservation and enjoyment of a substantial property right of the applicant. The variances will serve merely as a convenience to the applicant, and are not necessary to alleviate a demonstrable hardship. 8. The contents of Planning Case #02-088PC are hereby entered into and made a part of the public record and the record of decision for this case. CONCLUSION Based upon the Findings set forth above, the Board of Adjustment hereby denies the following variances to allow the addition to the existing single family dwelling and driveway expansion as shown in Attachment 1 - Certificate of Survey: 1) An 8.3 foot variance from the permitted 20 foot front yard setback for the construction of an 8 foot stoop and 6 foot overhang (Zoning Ordinance Section 1102.402: Dimensional Standards) 2) A 3 foot variance from the maximum width of 24 feet for residential driveways (Zoning Ordinance Section 1107.205. Driveways). Adopted by the Board of Adjustment on September 23, 2002. ATTEST: Anthony J. Stamson, Commission Chair Donald R. Rye, Planning Director 1:\02files\02vadances\02-088\deny resolution.doc Location Map ? Spdng Lake ,/ KENT ST VALE CIR ,',SW KENT ST VALE CIR / 170TH ST SW ST 20 0 20 40 Feet BLOG PERMIT SURVEY PREPAREO FOR RICK 8, JUNE GAL) 15gg4 MONROE AVE. SW Valley Surveying Co., P.A. SUITE I:>O-C ~ 16670 FRANKLIN TRAIL FRANKLIN TRAIL OFFICE CONDOMINIUM PRtOR LAKE~ MINNESOTA 5537~ TELEPHONE ISI2) 4,47 - Z570 ATTACHMENT I PROPOSED ADDITION ALkE¥ s~6.~_ 50.04 meal. SPRING LA~E ROAD DESCRIPTION: Lot 12, Block 32, SPRING LAKE VILLAGE, Scott County, Minnesota. Also showing Ihe location of all visible improvements and enGroachmcnts on to s~id properly as ol'lhi~ 9Ih day of August, 2002. NOTES: Benchmark Elevation 933,3~ Tog. of the existi~,g garage slab. 933 1 Denotes existing grade elevation 40 hlr~ At~, I b 71~? fi: ATTACHMENT 2 17 July 2002 Proposal to the City of Prior Lake Mn. This proposal, to the City of Prior Lake, is for a variance to the property located on the N.W. corner of Monroe Ave. S.W. and 170th St. W. Proper address for the variance will be 15994 Monroe Ave. S.W. Property owners are Richard F. Gau, and June L. Gau. Reason for requesting a variance is to eliminate the potential of physical harm to anyone that uses the existing stairs. We have had two people who injured themselves using our stairs when leaving our residence in the winter when said stairs are iced over. By turning our stairs to face the east, or Monroe Ave. S.W., instead of now facing south,or 170th St. W., and placing an "A" frame structure over the stairs and "eye brow" over the garage door car entrance, protruding off of the Monroe Ave. side, east, or front of the house, would add much safer entrance and exit during the winter and spring seasons. An "A" frame and "eye brow" would also add a touch of character to this 20 year old house. We are presently in the middle of residing this house, widening the driveway, and adding a utility door entrance on the 170th St. W. or south side, of garage. All of the above said projects are now "on hold", until a decision on this variance is made. I must add that the way things are with these projects, posses an extremely high risk for injury. There is a hole that has been dug to put in the frost footings and it is covered by plywood. The retaining walls need to be back filled and the asphalt needs to be laid. The house is all sided except for the front of the house. As you can see.this leaves our front yard a "Danger Zone"! Thank You Rick And June Gau PLANNING REPORT AGENDA ITEM: SUBJECT: PRESENTER: REVIEWED BY: PUBLIC HEARING: DATE: 7A DISCUSS AN AMENDMENT TO THE ZONING ORDINANCE CONCERNING FENCES ON CORNER AND RIPARIAN LOTS CYNTHIA KIRCHOFF, AICP, PLANNER JANE KANSIER, PLANNING COORDINATOR YES X NO SEPTEMBER 23, 2002 INTRODUCTION: The purpose of this report is to provide an overview of regulations pertaining to residential fences on comer and riparian lots. The City Council initiated this amendment on June 10, 2002. Staff seeks direction from the Planning Commission concerning the recommended amendments. A public hearing can be held at the October 14, 2002, Planning Commission meeting, should the amendments be deemed appropriate. DISCUSSION: The Zoning Ordinance currently defines a fence as follows: Any artificially constructed barrier of any material or combination of materials erected to enclose or screen areas of land. City Code Section 1101.504 regulates the height and location of fences. This section currently reads as follows: 1101.504 Fences. Fences may be permitted in required yards, subject to the following provisions: O) The height of fences and walls permitted in required yards shall be limited. The height shall be measured from the ground level to the top of the fence or wall section. Fence posts may extend no more than 8 inches above the required height limit of a fence. In the case where the fence section has variable heights, the 1:\02files~O2ordamend~zoning~pcreport-fen ceord I .doc 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (952) 447-4230 / Fax (952) 447~4245 AN EQUAL OPPORTUNITY EMPLOYER Planning Report - Fence regulations September 16, 2002 Page 2 height of the fence shall be the average height. Fence heights shall be limited as follows: A fence or wall shall not exceed 6 feet in height if it is located in any side or rear yard. A fence or wall may be located in a front yard if the fence or wall does not exceed 4 feet in height and 50 percent opacity. Fences in the front yard shall be limited to decorative fences, such as picket fences, split rail fences and decorative iron fences. Chain link fences are not permitted in the front yard. (amd. Ord. 00-07-pub. 6/10/00) A fence or wall shall not exceed 8 feet in height if the yard in which it is placed abuts State Highway 13 or County Roads 21, 42, 82 or 83. A fence or wall exceeding 8 feet in height may be allowed if placed in any side or rear yard separating a commercial or industrial use from a residential use, a school, church or other public building. A fence or wall may exceed 6 feet in height in any side or rear yard when it is installed as part ofa bufferyard, but may not exceed 8 feet in height. A fence or wall in one front yard of any through lot may be at the height permitted in a rear yard if it complies with ali of the provisions of subsection 1101.506, is used as a rear yard, and the fenced yard used as the rear yard does not adjoin a yard used as a front yard. (2) Where a fence or wall 6 feet in height or less is used as part of an animal kennel or mn, it may not be located in any required side or front yard, and it shall be located at least 10 feet from any rear lot line. (3) Temporary snow fences shall be permitted in any yard from November 1 st to April 1st. (4) No fence, hedge or wall or visual obstruction of any kind shall be permitted which is not in compliance with subsection 1 I01.506. (5) Any fence or wall over 6 feet in height constructed as a result of this subsection shall be constructed of a nonmetallic mater/al and shall be 90% opaque. It shall be considered a structure, shall require a building peri'nit, and shall meet all Minnesota State Building Code requirements for a structure. 6) No fence may be located in any public right of way. CORNER LOTS: Although the zoning ordinance does not specifically mention fences on comer lots, the height along both public rights-of-way is limited to 4 feet and 50 percent opacity, because a comer lot has two front yards. The zoning ordinance defines a comer lot as "a lot situated at the junction of, and abutting on 2 or more intersecting streets." Properties that abut roadways classified as arterials in the Comprehensive Plan are 1:\02files\O2ordamend~zoning~pcreport-fen ceord 1 .doc Planning Report - Fence regulations September 16, 2002 Page 3 specifically permitted to have fences along that particular lot line do not exceed 8 feet in height. The most recent discussion about fences is the result ora discussion at the City Council forum. A City resident with a comer lot would like to place a 6' high fence along Carriage Hills Parkway. Since this street is not classified as an arterial, the front yard fence provisions apply. The City Council directed staff to review an amendment to the ordinance addressing these situations. RIPARIAN LOTS: Riparian lots are also not specifically mentioned in the fence ordinance. A riparian lot can be defined as any lot that abuts a natural watercourse such as a lake. This type of lot is considered to have a front and rear lot line (lake side) similar to a non-riparian lot. A rear lot line is defined as the property line most closely parallel to the front property line. Since the shoreland pr6perty line is typically opposite the front property line, it would be considered the rear lot line and fences are limited to 6 feet in height in rear yards. Fences along the side lot lines on riparian lots are also limited to 6' in height. There is no restriction on the location of a fence along a side lot line to the lakeshore. The subject offences in the area between houses and the lakeshore is not new. In 1996, the Council considered an amendment to the fence ordinance to restrict the placement of fences in the 75-foot lakeshore setback. Staff made no recommendation on the draft ordinance that limited fence height to 5 feet and opacity to no more than that ora chain- link fence. After a great deal of discussion, the Planning Commission recommended denial of the proposed ordinance. One of the reasons given was that it did not appear to be a widespread problem that necessitated an ordinance amendment. The City Council subsequently denied the ordinance on a 4-1 vote. This issue was prompted by a dispute between two neighbors. At that time, staff conducted extensive research on the way other communities with lakeshore dealt with the fence issue. Of the 13 communities surveyed at that time, 6 did not allow fences within the lakeshore setback. Five of the cities allowed fences in the setback consistent with fences on non-lakeshore lots. Two cities allowed fences with restrictions on height and/or opacity. Those ordinances that prohibit fences within the setback are responsive to the intent of the DN-R Shoreland roles which, among other things, is to preserve the visual character of urban lakes and to preserve lakeshore views for riparian property owners. In contrast to this is the interest of riparian owners to secure their property from intrusion in a manner permitted in other parts of the City. This may be more significant on Prior Lake, which has a large number of small lakeshore lots. The establishment of regulations that limit fences in the lakeshore setback to a greater degree than is the case on non-riparian lots would restrict the ability of owners of such property to control entrance to their property and to protect their privacy. In this regard, it would mean the loss of a property right enjoyed by all non-r/parian owners. 1:\02files\O2orflamend~zoning~creport-fenceord I .doc Planning Report - Fence regulations September 16, 2002 Page 4 One of the concems raised by staff at that time, which we feel the same today, is that additional regulation of fences would mean the establishment of a permitting process for fences. At the very least, this would require staff review of fence plans. It could also lead to a requirement for surveys to verify location relative to property lines. It would also mean field inspections. Given our current staffing circumstances, establishing a permit system for fences will add an additional load on the staff while addressing what appears to be an infrequent problem. The issue has arisen twice in the past 6 years and would hardly seem to justify an ordinance amendment and potential staffing modifications to deal with it. In both cases, a disagreement between neighbors has raised the issue. Unless the Council has an experience different than the staff, it does not appear to be a problem of such magnitude and frequency as to require an ordinance amendment. However, as in most of these cases, it becomes a policy matter for the Council to determine whether the current situation justifies an amendment. OTHER SUBURBAN ORDINANCES: This section summarizes fence regulations on comer and riparian lots in other area suburbs. FENCE REGULATIONS FOR CORNER LOTS City Height Location Comments Apple Valley 3.5 feet From yard Subject to 30 foot 8 feet Side slreet behind sight triangle principal structure Chanhassen 3 feet - opaque Front yard: 4 feet - chain link determined by the 6 feet - open location of the garage 6.5 feet Side/rear yard 4 feet Front yard Subject to 30 foot Farmington 6 feet Side behind the sight triangle comer ofbldg Plymouth 3-4 feet, depending From Subject to 30 foot on opacity level sight triangle Stillwater 3.5 feet From yard and Subject to 30 foot exterior side yard sight triangle White Bear Lake 4 feet Front yard 6 feet "Side" yard abutting r-o-w, but must maintain 17.5 foot setback 1:~02files\O2ordamend~zoning\pcreport-fenceord 1 .doc Planning Report - Fence regulations September 16, 2002 Page 5 FENCE REGULATIONS FOR RIPARIAN LOTS Location Comments City Height Chanhassen White Bear Lake 3.5 feet Rear yard/lake side 4 feet Side and rear yards PLANNING COMMISSION ACTION: The staff is looking for some guidance on the proposed amendments as they pertain to fences. We plan to bring this issue to the Planning Commission for a public hearing on October 14, 2002. Prior to the heating, we would like some idea of the Planning Commission's opinions on this matter. 1:\02files\O2ordamend~.oning\pcreporMenceord 1 .doc Planning Report - Fence regulations September 16, 2002 Page 5 FENCE REGULATIONS FOR RIPARIAN LOTS City Height Chanhassen 3.5 feet White Bear Lake 4 feet PLANNING COMMISSION ACTION: Location Comments Rear yard/lake side Side and rear yards The staffis looking for some guidance on the proposed amendments as they pertain to fences. We plan to bring this issue to the Planning Commission for a public hearing on October 14, 2002. Prior to the hearing, we would like some idea of the Planning Commission's opinions on tkis matter. [:\02files\O2ordamend~zoning~creport-fenceord 1 .doc