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PC 02-61 Braddy Appeal
Resolution and Minutes L:\TEMPLATE~FILEINTO.DOC City Counc# Meeting Minutes May 20, 2002 Oundlach: Suggested that a condition of the resolution would be to remove the remainder of the impervious surface. The motion and second accepted the amendment. VOTE: Ayes by Petersen, Gundlach, Zieska, and LeMair, the motion carded. The Council took a brief recess. Public Hearing to Consider Approval of a Resolution Upholding the Decision of the Planning Commission to Approve Variances to the Top of the Bluff Setback, Front Yard Setback, Lot Width and Driveway Width at the Front Property Line for the Construction of Single-Family Dwelling on Property Located at 5584 Candy Cove Trail and Zoned R. fSD. Rye: Reviewed the agenda item in connection with the staff report. Gundlach: Asked what the discussion was at the Planning Commission regarding the top of the bluff. Rye: Recalled that the issues relative to the bluff did not receive a great amount of discussion, and that the geo-technical report addressed the issues to the bluff. Gundlach: Asked how the rationale relates when the City has denied decks and eaves that encroach the bluff setback. Further asked if them is a potential for this structure to remain behind the top of the bluff. Rye: The stated policy is the bluff setback ordinance. Once the circumstances dictate that the ordinance is unduly prohibitive, you look for solutions that can be as beneficial as possible. Once the setback is encroached, there is not difference between 1 foot or 20 feet. The safety factor is determined by the engineering and geological reports. Acting Mayor Petersen declared the public headng open. Allison Gontarek (Attorney on behalf of Mr. Toohey): Advised that extensive geological studies have been completed, and based upon the bodngs, the engineer advised the bluff is stable for the purposes of constructing the proposed home. Mr. Toohey realized in advance that he would assume some dsk and therefore spent a great deal on engineering studies before applying for the variances. Further noted that without the variances, Mr. Toohey is denied reasonable use of his land. Advised that a tree inventory had been completed as well. LeMair: Asked when the property was purchased and the intent for the property. Mark Toohey (5584 Candy Cove Tra/I): Confirmed that he purchased the property 6 years ago, and intended to build a house. Zieska: Asked if Mr. Toohey had been assessed for improvements to Candy Cove Trail. Toohe¥: Confirmed. Gundlach: Asked Ms. Gontarek to address the engineer's report and the conditions it proposed relative to bluff setback. City Council Meeting Minutes May 20, 2002 Gontarek: Advised that through the engineering report and consultation with the City's planning and engineering staff, was to move the house forward so that most of the drainage will go across the public right-of-way. Dale Braddy (5572 Candy Cove Trail): Urged the City Council to overtum the decision of the Planning Commission. Believed that if he was able to be present at the Planning Commission meeting, the variances would have been denied and there would be no reason to be here tonight. Continued that the 28-foot driveway is not necessary when the rest of the properties have 24-foot driveways. Advised that the Watershed, DNR and Lake Advisory Committee should be involved in determining the impacts on the lake and surrounding neighborhood. Advised that the lots adjacent to this property are not buildable, and are used for access only due to the non-conformities. Believed development of the property will unreasonably impact the character and integrity of the surrounding properties, advising that the surrounding properties are higher and the bluff must be in place to hold those properties. Noted that he had the Vice President of James R. Hill Engineering walk the property and he reported that "Regarding Lot 31, Candy Cove Park, Per your request I have reviewed the reports, ordinances, surveys pertaining to the above referenced lot. 1. The hardship was created with the purchase of this lot. The present owner of the Lot 31 purchased the lot subject to the present ordinances. He purchased the lot with no building envelope. 2. The setbacks existing in the neighborhood are based on the averaging of adjacent homes. The adjacent setbacks do not support 0 setback on Lot 31. The soil boring logs do not indicate any blow counts. The standard penetration test blow counts are not indicated.' .Further commented that we do not know how stable that bluff is. He already has had to mud jack his house numerous times. Believes runoff from the lot will adversely impact his property. Believes the bluff ordinance is meaningless if the variances are granted. Further advised that the only access to the property is a blind curve. Dan Baxter (5496 Candy Cove Trail): Also opposed to the requested variances, and noted that Mr. Toohey was aware that the property was unbuildable, and sometimes you just get stuck. Believes that the borings were done in the area off the bluff, rather than on the bluff itself. His personal experience is that there are large pockets of sand in the area. Concerned that the bluff ordinance would be disregarded, and that the driveway impervious surface is excessive. Bruce Thomas (5547 Candy Cove Trail): Submitted a petition by the neighborhood opposing the variance requests. Agreed with the comments by the two previous property owners. Rye: Advised that most of the ddveway is 16 feet width, and only where the tuming radius begins is the driveway 28 feet. Thomas: Believed removing the bluff will adversely impact the neighborhood due to noise, the amount of the bluff that will be removed, and pointed out that this is not just an encroachment, the bluff is being removed. Matthew Long (5472 Candy Cove Trail): Read John Schlegel (5488 Candy Cove Trail) statement into the record opposing the variance requests. Further advised that Mr. Toohey told him that the lot was unbuildable. Debbie Thomas (5547 Candy Cove Trail): Added that their lot was bought in 1995 and that the pumhase price for Mr. Toohey's lot was not reflective of a buildable lakeshore lot, and that he knew at that time the lot was not buildable. Rich Zavrel (5472 Candy Cove Trail): Also opposed to the variances. Believes the hardships were known hardships, and that the Council should act on behalf of the citizens of Prior Lake as a whole, and that we must maintain the integrity of our ordinances. Shelley Hines (5540 Candy Cove Trail): Shares the concerns about impacts on the neighborhood. Asked that the variances not be granted. Believed that the adjacent vacant pieces of property may follow suit and would overall adversely impact the current homeowners and that the bluff provides a sound barrier for the neighborhood. 6 City Council Meeting Minutes May 20, 2002 Art Schoot (5562 Candy Cove Trail): Noted that there are already significant impacts from water runoff in the area, and if the structure is built and other lots follow, it will be too late for the homes currently in place that will suffer the impacts of the water runoff. Buddy Bronstein (5524 Candy Cove Trail): Believes the Council needs to consider that the lot is not buildable and that variances shouldn't necessarily be granted to make it buildable. Further commented on the significant noise impacts on the neighborhood. Jacqueline Bronstein (5524 Candy Cove Trail): Very concemed about the noise impacts on her property and that her property will be adversely impacted in value. Susan Braddy (5572 Candy Cove Trail): Stated that these variances allow the bluff to be removed, and once it's gone, it can't be replaced. Believes the Planning Commission did not do their job, and that the City Council should protect the current homeowners. Stated that Mr. Toohey knew that he purchased an access only lot, and he can't go back and change his mind. Gontarek: Advised that analysis quoted by Mr. Braddy from James R. Hill is not based on any soil borings. Mr. Toohey has worked closely with the City's Engineering department with respect to the engineering and drainage reports through this whole process. Believes the Council's action tonight is to determine if the Planning Commission did its job in considering the hardship cdteda. Believed that the screening of noise will be better with a structure, rather than the bluff. Further clarified that there was a MnDOT permit across the public right-of-way for lake access which was eventually blocked. Also noted that at this point, most of the houses in Candy Cove would not comply with the ordinances without variances. Repeated that that Mr. Toohey's proposed structure is modest in size and that he is not asking for extravagances. Mark Toohey: Advised that when he purchased the property, he was aware that it could be a buildable lot if the impacts to the bluff could be mitigated. MOTION BY GUNDLACH, SECOND BY ZIESKA TO CLOSE THE PUBLIC HEARING. VOTE: Ayes by Petersen, Gundlach, Zieska, and LeMair, the motion carded. The Council took a brief recess. MOTION BY ZIESKA, SECOND BY LEMAIR, TO UPHOLD THE PLANNING COMMISSION DECISION. Zieska: Commented that the Council must uphold the ordinance of the City and the statutes of the state. Asked the City Attomey to defined what a buildable lot of record is. Pa..ce: Read from Zoning Ordinance sections defining a buildable lot of record and non-conforming lots in the shoreland district. Further commented when considering a variance, the Council must look at the property as a whole, not who knew what or when. To deny some single-family use of this lot or being unduly restrictive, even though it may be non-conforming, would be denying the property owner reasonable use of his property, and could be argued as a regulatory taking. Petersen: Concerned about water drainage, and the zero lot line. Pace: Advised that the Council can consider implementing conditions which would mitigate the impacts on the surrounding properties. Gundlach: Suggested a compromise and selling the property vacated by the state to the City and then having the owner bring a revised plan back that would rum the house and move it, with the intent of mitigating the impact on the bluff and the 7 City Council Meeting Minutes May 20, 2002 water runoff and noise issues. There might be an opportunity to resolve the issues by, in effect, changing the property line. Suggested having the City work with the applicant to negotiate the transfer of the vacated right-of-way to the applicant, and if they are unable to make progress, the applicant could request the Council to vote on this appeal. Zieska: Commented that the Council has the deadline of June 17~h to act on the application, and that the sale of the property would be time consuming and subject to an easement to access the Toohey property. Pace: The question with this proposal is whether the City can sell this property, which would require that the City publish and sell to the highest bidder. LeMair: Commented that the Council cannot tell a property owner he can't use his property, and even though the topography creates difficult issues, there has to be some compromise. Believes the hardship criteda have been met. Zieska: Agreed that something has to be allowed, and that this home is modest for Prior Lake at 1800 square feet. Believes the hardship criteria have been met. It is unreasonable to deny the applicant the use of his property in order to act as a sound barrier for his neighbors. LeMair: Does understand the viewpoint of the neighbors in the area, and that construction will change the area. Concerned with the development of the other five lots in the area. Gundlach: Believes the purpose of the ordinance is to protect the bluff as much as possible, even though we can't deny that the lot is buildable. Suggested that some conditions be initiated to mitigate the impacts on the bluff. Zieska: There is no doubt that the bluff will be impacted in this area. Shared Councilmember Gundlach's concem with the soil borings. Offered that a condition could be imposed that another soil bodng be taken at the northeast comer of the proposed structure. Gundlach: Asked about the retaining wall. Pace: Advised that the retaining wall would require an additional building permit and would require substantiation by an engineer at that time. LeMair: Agreed with the additional soil boring provision. Pace: Concemed that the drainage plan is subject to the stability of the bluff soils. Zieska: Asked if there is a condition that can be imposed to mitigate the drainage impacts on adjacent properties. Petersen: Commented that it would be best to be able to hold the water on the lot, even though the drainage plan shows much of the runoff to the front of the house. Zieska: Added another condition that a separate storm water management plan be prepared that would show no additional runoff onto neighboring properties, or provide a plan to mitigate it. VOTE: Ayes by Zieska and LeUair, Nay by Gundiach and Petersen. The motion failed. Pace: Cladfied that because the Council is deadlocked, the Planning Commission decision stands without any of the mitigating factors suggested during the course of this meeting. City Council Meeting Minutes May 20, 2002 LeMair: Asked if Councilmembers would all agree that, understanding that the Planning Commission decision is upheld given the Council's vote, they would agreed to reconsider the item in order to impose conditions. There was consensus among the Council to hear an additional motion. MOTION BY ZIESKA, SECOND BY PETERSEN, TO APPROVING RESOLUTION 02-74 UPHOLDING THE PLANNING COMMISSION DECISION WITH THE FOLLOWING ADDITIONAL CONDITIONS: (1) REQUIRING AN ADDITIONAL SOIL BORING AT THE NORTHEAST CORNER OF THE HOUSE AS DETERMINED BY A REGISTERED ENGINEER, (2) REMOVAL OF THE DECK AT THE NORTHEASTERN MOST CORNER OF THE HOUSE, AND (3) REQUIRING A STORM WATER MANAGEMENT PLAN SHOWING NO ADDITIONAL DRAINAGE IMPACTS ON THE SURROUNDING PROPERTIES OR PROVIDING A PLAN TO MITIGATE THE DRAINAGE IMPACTS. VOTE: Ayes by Petersen, Gundlach, Zieska and LeMair, the motion carded. OLD BUSINESS: Consider Approval of a Resolution Receiving Bids and Awarding a Contract to Davies/Northern Water Works for the Meter Replacement and Automated Meter Reading System Project. Osmundson: Reviewed the agenda item in connection with the staff report. MOTION BY LEMAIR, SECOND BY ZIESKA TO APPROVE RESOLUTION 02-75 RECEIVING BIDS AND AWARDING CONTRACT TO DAVIES/NORTHERN WATER WORKS FOR THE METER REPLACEMENT AND AUTOMATED METER READING SYSTEM PROJECT. Boyles: Asked if the meter transmitters would interfere at all with television reception. Osmundson: No, the meters are FCC approved. Zieska: Asked how long the meter transmitters will last. Osmundson: Up to 15 years. And advised that the only access needed for an individual's home would be for initial install, and then to troubleshoot. VOTE: Ayes by Petersen, Gundlach, Zieska, and LeMair, the motion carried. Consider Approval of Two Resolutions (l) Accepting Bids and Awarding the Contract for CSAH 42 Trunk Watermain Improvements (City Project 02-01) and (2) Authorizing Bonestroo Rosene Anderlik and Associates, Inc. to Provide Construction Inspection and Surveying for Project 02-0f. Osmundson: Reviewed the agenda item in connection with the staff report. MOTION BY ZIESKA, SECOND BY LEMAIR, APPROVING RESOLUTION 02-76 ACCEPTING BIDS AND AWARDING CONTRACT FOR CSAH 42 TRUNK WATERMAIN IMPROVEMENTS. VOTE: Ayes by Petersen, Gundlach, Zieska and LeMair, the motion carried. 9 Doc. No. T 130986 Vol. 80 Page 286 Cert. 27003 OFFICE OF THE REGISTRAR OF Tm. ES SCOTT COUNTY, MINNESOTA Catified Filed on 06-07-2002 at 02:30 Pat Boeckman, Registrar of Tilles 01 Fee: $21.50 State of Minnesota County of Scott I, Kelly Meyer, being duly sworn, as Deputy City Clerk for the City of Prior Lake, do hereby certify that the attached RESOLUTION 02-74 is a true and correct copy of the original as passed and adopted by the City Council of the City of Prior Lak,~'at its May 20, 2002 meeting. Date: /~/~ ~/~ er~~' ~elly Mey Deputy Cit~' Clerk h:\certify.doc RESOLUTION 02-74 RESOLUTION OF THE PRIOR LAKE CITY COUNCIL UPHOLDING A DECISION OF THE PLANNING COMMISSION TO APPROVE A VARIANCE TO THE MINIMUM LOT WIDTH AT THE OHW, A VARIANCE TO THE REQUIRED FRONT YARD SETBACK, A VARIANCE TO THE BLUFF SETBACK, AND A VARIANCE TO THE MAXIMUM DRIVEWAY WIDTH AT THE RIGHT-OF-WAY LINE MOTION BY: ZIESKA SECOND BY: LEMAIR WHEREAS, On May 20, 2002, the Prior Lake City Council considered an appeal by Dale and Susan Braddy of the Planning Commission's approval of a request for a vadance by Mark Toohey to locate a single family home on the vacant property located at 5584 Candy Cove Trail, and legally described as follows: Lot 31, CANDY COVE PARK, Scott County, Minnesota WHEREAS, The City Council finds that the requested variances meet the standards for granting variances set forth in Section 1108.400 of the City Code, and that the appellant has not set forth adequate reasons for overturning the decision of the Planning Commission; and WHEREAS, The City Council has determined that the Planning Commission's decision approving the requested vadar~ces should be upheld. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE: 1) The above recitals are incorporated as if fully set forth herein, 2) The City Council makes the following findings: a. Mark Toohey has applied for variances from the Zoning Ordinance to allow a single family home to be constructed on property zoned R-lSD (Low Density Residential Shoreland District), located at 5584 Candy Cove Trail, and legally described as follows: Lot 31, Candy Cove Park, Scott County, Minnesota b. The Planning Commission reviewed the application for variances to the minimum lot width at the Ordinary High Water Elevation (OHW), the required front yard setback, to the bluff setback, and to the maximum driveway width as contained in Case #0-030 and held hearings thereon on April 22, 2002. c. The Planning Commission concluded the vadance request met the hardship criteria and approved the request. d. Dale and Susan Braddy appealed the decision of the Planning Commission in accordance with Section 1109.400 of the City Code on Apdl 29, 2002. ¢. The City Council reviewed the appeal of the Planning Commission's decision, and the information contained in Case File #02-030 and Case File #02-061, and held a hearing thereon on May 20, 2002. £. The City Council 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. 16200 Eagle Creek Ave. S.E,, Prior Lake, Minnesota 55372-1714 / Ph. (952) 447-4230 / Fax (952) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER 3) 4) 5) g. Because of conditions on the subject property and on the surrounding property, the proposed variance will not 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. h. There is a justifiable hardship caused by the width of the existing lot, and by the topography of the lot, so reasonable use of the property is not possible without the granting of the variance. J. The granting of the va'riance is necessary for the preservation and enjoyment of a substantial property right of the applicant. The variance will not serve merely as a convenience to the applicant, and is necessary to alleviate demonstrable hardship. The contents of Planning Case File #02-030 and #02-061 are hereby entered into and made a part of the public record and the record of decision for this case. Based upon the Findings set forth above, the City Council hereby upholds the decision of the Planning Commission granting the following requested variances: a) A 23.86' variance from the minimum 75' lot width at the Ordinary High Water Elevation (OHW); b) A 25' variance to the front yard setback requirement to allow the structure to be setback 0' from the front property line rather than the minimum requirement of 25 feet; c) A vadance to allow a structure to be located within the Bluff Impact Zone; d) A 4' variance to allow a 28' wide ddveway at the right-of-way line rather than the maximum 24 feet. The following conditions shall be adhered to and subject to the issuance of a building permit for the proposed room addition: a) The subject site shall be developed as shown on the attached survey to ensure additional variances are not required, except that the proposed deck on the northeast comer of the proposed house shall not be constructed. b) One additional soil boring shall be pedormed at the foundation location on the northeast comer of the proposed house. c) The property owner shall submit a Storm Water Management Plan for the property prepared by a registered engineer that demonstrates no additional storm water shall be directed unto adjacent property as a result of the development of the subject property. In the alternative, the property owner may submit a report from a registered engineer certifying that the grading and drainage plan submitted as part of this application does not increase runoff to adjacent properties. d) The permit is subject to all other City Ordinances and applicable County and State Agency regulations. e) The variance must be recorded and proof of recording submitted to the Planning Department within 60 days. An Assent Form must be signed and, pursuant to Section 1108.400 of the City Code, the variance will be null and void if the necessary permits are not obtained for the proposed structure within one year after adoption of this resolution. Passed and adopted this 20th day of May 2002. YES NO Haugen Absent Haucjen Absent Gundlach X Gundlach LeMair X LeMair Petersen X Petersen' Zieska X Zieska {Seal} Frank Boyles, City Manager ASSENT OF APPLICANT File #02-030PC File #02-061PC As Approved by Resolution # 02-74 The undersigned hereby assents to the following: 1. I have read the conclusions and conditions of said Resolution, and I am familiar with their contents and with the content of the exhibits. 2. I fully accept all of the terms and conditions of said Resolution. 3. I understand SectiOn 1 i08.400 of the Prior Lake Ordinance Code provides as follows: 1108.413 Revocation and Cancellation of a Variance. A Variance may be revoked and canceled if the Zoning Administrator determines that the holder of an existing Variance has violated any of the conditions or requirements imposed as a condition to approval of the Variance, or has violated any other applicable laws, ordinances, or enforceable regulation. 1108.414 After One Year, No Construction Required. All Variances shall be revoked and canceled if 1 year has elapsed from the date of the adoption of the resolution granting the Variance and the holder of the Variance has failed to make substantial use of the premises according to the provisions contained in the Variance. 1108.415 After One Year, New Construction Required. All Variances shall be revoked and canceled after 1 year has elapsed from the date of the adoption of the resolution granting the Variance if a new structure or alteration or substantial repair of an existing building is required by the Variance and the holder has failed to complete the work, unless a valid building permit authoriz~,ng such work has been issued and work is progressing in an orderly way. 1108.416 Upon OccurrenCe of Certain Events. If the holder of a Variance fails to make actual use of vacant land, or land and structures which were existing when the Variance was issued and no new structure, alteration or substantial repair to existing buildings was required; or if a new structure was required by the Variance and no building permit has been obtained, the Variance shall be deemed revoked and canceled upon the occurrence of any of the following events: L:\02FILES\02appeal\toohey appealXASSENT.DOC 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 (1) A change in the Use District for such lands is made by amendment to the Zoning Ordinance by the City Council. (2) Eminent domain proceedings have been initiated to take all or any part of the premises described in the Variance. (3) The use described in the Variance becomes an illegal activity under the laws of the United States of America or the State of Minnesota. (4) Title to all or part of land described in such Variance is forfeited to the State of Minnesota for nonpayment of taxes. (5) The person to whom the Variance was issued files a written statement in which that person states that the Variance has been abandoned. The statement shall describe the land involved or state the resolution number under which the Variance was granted. (6) The premises for which the Variance was issued are used by the person to whom the Variance was issued in a manner inconsistent with the provisions of such Variance. DATE~t ' l I understand the granting by the City of this Resolution is in reliance on the representations that I will fully comply with all of the terms and conditions of said Resolution. I understand and agree upon notice of non-compliance with any term or condition, I shall immediately cease conducting activities pursuant to the notice or will take all actions necessary to accomplish full compliance with said notice and conditions of the Resolution. SIGNA ANT Lot 31, CANDY COVE PARK, Scott County PROPERTY LEGAL DESCRIPTION L:\02FILES\02appeal\toohey appealXASSENT.DOC 2 RESOLUTION 02-74 RESOLUTION Of THE PRIOR LAKE CItY COUNCIL UPHOLDING A DECISION OF THE PLANNING COMMISSION TO APPROVE A VARIANCE TO THE MINIMUM LOT WIDTH AT THE OHW, A VARIANCE TO THE REQUIRED FRONT YARD SETBACK, A VARIANCE TO THE BLUFF SETBACK, AND A VARIANCE TO THE MAXIMUM DRIVEWAY WIDTH AT THE RIGHT-OF-WAY LINE MOTION BY: ZIESKA SECOND BY: LEMAIR WHEREAS, On May 20, 2002, the Prior Lake City Council considered an appeal by Dale and Susan Braddy of the Planning Commission's approval of a request for a variance by Mark Toohey to locate a single family home on the vacant property located at 5584 Candy Cove Trail, and legally described as follows: Lot 31, CANDY COVE PARK, Scott County, Minnesota WHEREAS, The City Council finds that the requested variances meet the standards for granting variances set forth in Section 1108.400 of the City Code, and that the appellant has not set forth adequate reasons for overturning the decision of the Planning Commission; and WHEREAS, The City Council has determined that the Planning Commission's decision approving the requested variances should be upheld. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE: !) The above recitals are incorporated as if fully set forth herein. The City Council makes the following findings: a. Mark Toohey has applied for variances from the Zoning Ordinance to allow a single family home to be constructed on property zoned R-lSD (Low Density Residential Shoreland District), located at 5584 Candy Cove Trail, and legally described as follows: Lot 31, Candy Cove Park, Scott County, Minnesota b. The Planning Commission reviewed the application for variances to the minimum lot width at the Ordinary High Water Elevation (OHW), the required front yard setback, to the bluff setback, and to the maximum driveway width as contained in Case #0-030 and held hearings thereon on April 22, 2002. c. The Planning Commission concluded the vadance request met the hardship criteria and approved the request. d. Dale and Susan Braddy appealed the decision of the Planning Commission in accordance with Section 1109.400 of the City Code on April 29, 2002. ¢. The City Council reviewed the appeal of the Planning Commission's decision, and the information contained in Case File #02-030 and Case File #02-061, and held a hearing thereon on May 20, 2002. £. The City Council 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. 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (952) 447-4230 / Fax (952) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER g. Because of conditions on the subject property and on the surrounding property, the proposed variance will not 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. h. There is a justifiable hardship caused by the width of the existing lot, and by the topography of the lot, so reasonable use of the property is not possible without the granting of the variance. L The granting of the variance is necessary for the preservation and enjoyment of a substantial property dght of the applicant. The variance will not serve merely as a convenience to the applicant, and is necessary to alleviate demonstrable hardship. The contents of Planning Case File #02-030 and #02-061 are hereby entered into and made a part of the public record and the record of decision for this case. 4) Based upon the Findings set forth above, the City Council hereby upholds the decision of the Planning Commission granting the following requested variances: s) a) A 23.86' variance from the minimum 75' lot width at the Ordinary High Water Elevation (OHW); b) A 25' variance to the front yard setback requirement to allow the structure to be setback 0' from the front property line rather than the minimum requirement of 25 feet; c) A variance to allow a structure to be located within the Bluff Impact Zone; d) A 4' variance to allow a 28' wide driveway at the right-of-way line rather than the maximum 24 feet. The following conditions shall be adhered to and subject to the issuance of a building permit for the proposed room addition: a) The subject site shall be developed as shown on the attached survey to ensure additional variances are not required, except that the proposed deck on the northeast comer of the proposed house shall not be constructed. b) One additional soil boring shall be performed at the foundation location on the northeast corner of the proposed house. c) The property owner shall submit a Storm Water Management Plan for the property prepared by a registered engineer that demonstrates no additional storm water shall be directed unto adjacent property as a result of the development of the subject property. In the alternative, the property owner may submit a report from a registered engineer certifying that the grading and drainage plan submitted as part of this application does not increase runoff to adjacent properties. d) The permit is subject to all other City Ordinances and applicable County and State Agency regulations. e) The vadance must be recorded and proof of recording submitted to the Planning Department within 60 days. An Assent Form must be signed and, pursuant to Section 1108.400 of the City Code, the vadance will be null and void if the necessary permits are not obtained for the proposed structure within one year after adoption of this resolution. Passed and adopted this 20th day of May 2002. YES NO Haugen Absent Hau~len Absent Gundlach X Gundlach LeMair X LeMair Petersen X Petersen Zieska X Zieska {Seal} Frank Boyles, City Manager ASSENT OF APPLICANT File #02-030PC File #02-061PC As Approved by Resolution # 02-74 The undersigned hereby assents to the following: 1. I have read the conclusions and conditions of said Resolution, and I am familiar with their contents and with the content of the exhibits. 2. I fully accept all of the terms and conditions of said Resolution. 3. I understand Section 1108.400 of the Prior Lake Ordinance Code provides as follows: 1108.413 Revocation and Cancellation of a Variance. A Variance may be revoked and canceled if the Zoning Administrator determines that the holder of an existing Variance has violated any of the conditions or requirements imposed as a condition to approval of the Variance, or has violated any other applicable laws, ordinances, or enforceable regulation. 1108.414 After One Year, No Construction Required. All Variances shall be revoked and canceled if 1 year has elapsed from the date of the adoption of the resolution granting the Variance and the holder of the Variance has failed to make substantial use of the premises according to the provisions contained in the Variance. 1108.415 After One Year, New Construction Required. All Variances shall be revoked and canceled after 1 year has elapsed from the date of the adoption of the resolution granting the Variance if a new structure or alteration or substantial repair of an existing building is required by the Variance and the holder has failed to complete the work, unless a valid building permit authorizing such work has been issued and work is progressing in an orderly way. 1108.416 Upon Occurrence of Certain Events. If the holder of a Variance fails to make actual use of vacant land, or land and structures which were existing when the Variance was issued and no new structure, alteration or substantial repair to existing buildings was required; or if a new structure was required by the Variance and no building permit has been obtained, the Variance shall be deemed revoked and canceled upon the occurrence of any of the following events: L:\02FILES\02appeal\toohcy appealXASSENT.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 (1) A change in the Use District for such lands is made by amendment to the Zoning Ordinance by the City Council. (2) Eminent domain proceedings have been initiated to take all or any pan of the premises described in the Variance. (3) The use described in the Variance becomes an illegal activity under the laws of the United States of America or the State of Minnesota. (4) Title to all or part of land described in such Variance is forfeited to the State of Minnesota for nonpayment of taxes. (5) The person to whom the Variance was issued files a written statement in which that person states that the Variance has been abandoned. The statement shall describe the land involved or state the resolution number under which the Variance was granted. (6) The premises for which the Variance was issued are used by the person to whom the Variance was issued in a manner inconsistent with the provisions of such Variance. I understand the granting by the City of this Resolution is in reliance on the representations that I will fully comply with all of the terms and conditions of said Resolution. I understand and agree upon notice of non-compliance with any term or condition,.I shall immediately cease conducting activities pursuant to the notice or will take all actions necessary to accomplish full compliance with said notice and conditions of the Resolution. DATE SIGNATURE OF APPLICANT SIGNATURE OF OWNER Lot 31, CANDY COVE PARK, Scott County PROPERTY LEGAL DESCRIPTION L:\02FILES\02appeal\toohey appeal\ASSENT.DOC 2 CITY COUNCIL AGENDA REPORT MEETING DATE: AGENDA #: PREPARED BY: REVIEWED BY: MAY 20, 2002 8C JANE KANSIER, PLANNING COORDINATOR DON RYE, COMMUNITY DEVELOPMENT DIRECTOR AGENDA ITEM: PUBLIC HEARING TO CONSIDER APPROVAL OF A UPHOLDING THE DECISION OF THE PLANNING COMMISSION TO APPROVE VARIANCES TO THE TOP OF BLUFF SETBACK, FRONT YARD SETBACK, LOT WIDTH AND DRIVEWAY WIDTH AT THE FRONT PROPERTY LINE FOR THE CONSTRUCTION OF A SINGLE FAMILY DWELLING ON PROPERTY LOCATED AT 5584 CANDY COVE TRAIL AND ZONED R-lSD DISCUSSION: History: In March 2002, the Planning Department received an application for a variance to allow the construction of a single family home on the vacant property located at 5584 Candy Cove Trail. The property is located in the R-1 (Low Density Residential) district and in the Shoreland District for Prior Lake. The applicant and property owner, Mark Toohey, requested the following variances: 1. A 23.86' variance from the minimum 75' lot width at the Ordinary High Water Elevation (OHW); 2. A 25' variance to the front yard setback requirement to allow the structure to be setback 0' from the front property line rather than the minimum requirement of 25 feet; 3. A variance to allow a structure to be located within the Bluff Impact Zone; 4. A 4' variance to allow a 28' wide driveway at the right-of-way line rather than the maximum 24 feet. On April 22, 2002, the Planning Commission held a public hearing to consider the requested variance. The Planning Commission heard testimony from Alison Gontarek, representing the applicant, who noted that the property owner had gone to great effort and expense to eliminate as many variances as possible. The Commission also heard testimony from residents of the Candy Cove neighborhood. The neighbors were mainly concerned about noise from Highway 13, l:\02files\02appeal\toohey appeal\toohey cc.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 runoffinto the lake and onto the neighboring property, and the size of the proposed house. Upon reviewing the hardship criteria, the Planning Commission concluded there is a hardship with respect to this property in several ways. First, the lot width is nonconforming and the applicant has no control over the existing lot width. Second, the legal building envelope on the lot is approximately 100 square feet in area. There is no buildable area without variances. The Planning Commission thus approved the variance request. A draft copy of the Planning Commission minutes is attached to this report. On April 29, 2002, Dale and Susan Braddy, owners of property within 350' of the site, submitted the attached letter appealing the decision of the Planning Commission. This letter is consistent with the provisions of Section 1108.408 of the Zoning Ordinance. Current Conditions: The property located at 5584 Candy Cove Trail was originally platted as Lot 31, Candy Cove Park, in 1921. The property is located within the R-1 SD (Low Density Residential Shoreland) district, and is a riparian lot. The applicant does not own either of the adjacent parcels. According to the survey submitted by the applicant, Lot 31, Candy Cove Park is 21,856 square feet in area. The lot is 81.47' wide at the front lot line, 51.14' wide at the OHW, and approximately 274 feet deep on the shortest side. The front lot line of this lot is located 90+ feet from the curb of Candy Cove Trail. There is an excess right-of-way at this location that was originally part of the TH 13 right-of-way, but has since been turned back to the City. The property to the west has an easement for landscaping and access across this excess right-of-way; the City expects to provide the same easements to this property. This excess right-of-way also provides access to the lots to the east of this site. The lot is considered a nonconforming lot of record because it does not have the minimum required lot width of 90' at the front building line. The lot also does not meet the minimum lot width of 75' at the OHW. The high point of this property is 986' MSL at the north side of the lot, and descends to 904' MSL at the lake. The lot is considered a bluff under the Shoreland provisions of the Zoning Ordinance. The top of bluff and the 25' bluff setback are shown on Exhibit A. Using the required setbacks, including the front yard, side yard, and top of bluff, this lot contains a building envelope approximately 100 square feet in area. l:\02files\02appeal\toohcy appeal\toohcy cc.doc 2 The property owner is proposing to construct a single family dwelling on this lot, as shown on Exhibit B. The proposed dwelling is a 1 Va story structure with a 20' by 22' attached garage. The footprint of the house and garage includes 1,796 square feet. The property owner is also proposing a 22' by 16' deck and a 19' by 18' deck, both located on the lakeside of the house. The proposed impervious surface on the site is 23%, which is within the allowed limits of the Zoning Ordinance. The property owner is proposing to place the structure on the lot so it is located 0' from the front property line, 8.7' from the west side lot line, 11.3' from the east side lot line, and approximately 210' from the OHW. Although the proposed structure would be located at the front property line, it would be at least 90' from the curb of the existing street. This setback has been proposed in order to pull the house as far out of the bluff as possible. The structure is also located within the bluff impact zone. The property owner submitted a geotechnical report, prepared by a licensed engineer, with the variance application. This report states that slope stability is not a concern at this location. Engineer's reports are required by the Zoning Ordinance for any lots with a bluff, and are usually submitted with a building permit. This report was prepared prior to submittal of the variance application to answer any questions about the stability of the bluff. A copy of this report is attached for your information. The DNR did not comment on this request. The City Engineering Department comments are attached. The Engineering Department comments note that the City will grant an easement for landscaping and access across the right-of-way. In addition, the City will be responsible for providing sewer service at the time the building permit is issued. The Issues: The City Council must determine if it concurs with the Planning Commission's decision that the proposed development meets the hardship criteria. The appellants did not include any specific or supporting information in the letter appealing this decision. The hardship criteria are listed in Section 1108.406 of the Zoning Ordinance. The following includes the hardship standard as well as a suggested finding relating to that standard. 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 l:\02files\02appeal\toohey appeal\toohey cc.doc 3 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 lot was platted in 1921, prior to the existence of any Shoreland Management requirements. The applicant has no control over the existing width of the lot at the OHW. In addition, the bluffon this lot extends nearly to the front property line, resulting in a building envelope of approximately 100 square feet. This is an exceptional or extraordinary condition on this lot resulting in an undue hardship. There is no building envelope without variances. 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 conditions applying to this lot are peculiar to this lot and to a few other lots in the immediate area. The lot is a nonconforming lot of record. 3. The granting of the proposed Variance is necessary for the preservation and enjoyment of a substantial property right of the owner. Granting this variance is necessary for the preservation of a substantial property right. The lot does not contain a building envelope without variances. 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. In staff's opinion, the granting of the variances would not impair light and air, increase congestion in the streets or endanger public safety. The applicant has submitted a geotechnical report prepared by a registered engineer that addresses the bluff stability at this site. The house also is set back as far out of the bluff as possible, without going over the front property line. 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. The granting of the requested variances would not unreasonably impact the character of the neighborhood. 6. The granting of the proposed Variance will not be contrary to the intent of this Ordinance and the Comprehensive Plan. l:\02files\02appeal\toohey appeal\toohey ce.doc 4 FISCAL IMPACT: ALTERNATIVES: This is a nonconforming lot of record that does not include a legal building envelope without the granting of variances. The applicant has submitted a geotechnical report to address bluff stability. 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 granting of the variances is necessary to allow a reasonable use of this property, and to alleviate a demonstrable hardship. 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 hardship is not a result of the owner's action, but rather as a result of the application of the ordinance. 9. Increased development or construction costs or economic hardship alone shall not be grounds for granting a Variance. This variance is not based on economic hardship. Conclusion: The Planning Commission and staff recommend approval of the requested variance on the basis the request meets the hardship criteria in that there is no legal building envelope on the lot without variances. The City Attorney has reviewed the correspondence dated March 13, 2002 addressed to the Planning Commission in support of Mr. Toohey's variance application. The City Attorney indicated no objection to the advocacy of Mr. Toohey's counsel; however, she disagrees with counsel's reliance on the decision in Rowell v. Board of Adjustment of the City of Moorhead as the basis for granting the variance. The City Attorney's objection on counsel's reliance on the language from Rowell is noted to avoid any future precedential reliance by counsel in unrelated applications. Approval of the variance will allow the construction of a single family home, thereby increasing the tax base. The City Council has three alternatives: 1. Adopt a Resolution upholding the decision of the Planning Commission to approve the variance requested by Mark Toohey. 2. Overturn the decision of the Planning Commission and direct the staff to prepare a resolution overturning the decision of the Planning Commission and denying the requested variance. 3. Defer this item and provide staff with specific direction. l:\02files\02appeal\toohey appeal\toohey cc.doc 5 RECOMMENDED MOTION: REVIEWED BY: The staff recommends Alternative #1, adoption of a upholding a decision of the Planning Commission approving the variance request to allow the constmctjpn of a single family dwelling on the property de~e7 L~y Cove Park. Fran~'~~/~i'~anager l:\02files\02appeal\toohey appeal\toohey cc.doc 6 RESOLUTION 02-XX RESOLUTION OF THE PRIOR LAKE CITY COUNCIL UPHOLDING A DECISION OF THE PLANNING COMMISSION TO APPROVE A VARIANCE TO THE MINIMUM LOT WIDTH AT THE OHW, A VARIANCE TO THE REQUIRED FRONT YARD SETBACK, A VARIANCE TO THE BLUFF SETBACK, AND A VARIANCE TO THE MAXIMUM DRIVEWAY WIDTH AT THE RIGHT-OF-WAY LINE MOTION BY: SECOND BY: WHEREAS, On May 20, 2002, the Prior Lake City Council considered an appeal by Dale and Susan Braddy of the Planning Commission's approval of a request for a variance by Mark Toohey to locate a single family home on the vacant property located at 5584 Candy Cove Trail, and legally described as follows: Lot 31, CANDY COVE PARK, Scott County, Minnesota WHEREAS, The City Council finds that the requested variances meet the standards for granting variances set forth in Section 1108.400 of the City Code, and that the appellant has not set forth adequate reasons for overturning the decision of the Planning Commission; and WHEREAS, The City Council has determined that the Planning Commission's decision approving the requested variances should be upheld. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE: 1) The above recitals are incorporated as if fully set forth herein. 2) The City Council makes the following findings: a. Mark Toohey has applied for variances from the Zoning Ordinance to allow a single family home to be constructed on property zoned R-1 SD (Low Density Residential Shoreland District), located at 5584 Candy Cove Trail, and legally described as follows: Lot 31, Candy Cove Park, Scott County, Minnesota b. The Planning Commission reviewed the application for variances to the minimum lot width at the Ordinary High Water Elevation (OHW), the required front yard setback, to the bluff setback, and to the maximum driveway width as contained in Case//0-030 and held hearings thereon on April 22, 2002. c. The Planning Commission concluded the variance request met the hardship criteria and approved the request. 16200 Ea§le Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (952) 447-4230 / Fax (952) 447-4245 l:\02files\02appeal\toohey appeal\cc res.doc AN EQUAL OPPORTUNITY EMPLOYER Page I 3) 4) 5) d. Dale and Susan Braddy appealed the decision of the Planning Commission in accordance with Section 1109.400 of the City Code on April 29, 2002. e. The City Council reviewed the appeal of the Planning Commission's decision, and the information contained in Case File #02-030 and Case File #02-061, and held a heating thereon on May 20, 2002. f. The City Council 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, tisk to the public safety, the effect on property values in the surrounding area and the effect of the proposed variance on the Comprehensive Plan. g. Because of conditions on the subject property and on the surrounding property, the proposed variance will not 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. h. There is a justifiable hardship caused by the width of the existing lot, and by the topography of the lot, so reasonable use of the property is not possible without the granting of the variance. i. The granting of the variance is necessary for the preservation and enjoyment of a substantial property tight of the applicant. j. The variance will not serve merely as a convenience to the applicant, and is necessary to alleviate demonstrable hardship. The contents of Planning Case File #02-030 and #02-061 are hereby entered into and made a part of the public record and the record of decision for this case. Based upon the Findings set forth above, the City Council hereby upholds the decision of the Planning Commission granting the following requested variances: a) A 23.86' vatiance from the minimum 75' lot width at the Ordinary High Water Elevation (OHW); b) A 25' variance to the front yard setback requirement to allow the structure to be setback 0' from the front property line rather than the minimum requirement of 25 feet; c) A variance to allow a structure to be located within the Bluff Impact Zone; d) A 4' vatiance to allow a 28' wide driveway at the tight-of-way line rather than the maximum 24 feet. The following conditions shall be adhered to and subject to the issuance of a building permit for the proposed room addition: The subject site shall be developed as shown on the attached survey to ensure additional variances are not required. b) The permit is subject to all other City Ordinances and applicable County and State Agency regulations. l:\02files\02appeal\toohey appeal\cc res.doc Page 2 c) The variance must be recorded and proof of recording submitted to the Planning Department within 60 days. An Assent Form must be signed and, pursuant to Section 1108.400 of the City Code, the variance will be null and void if the necessary permits are not obtained for the proposed structure within one year after adoption of this resolution. Passed and adopted this 20~h day of May 2002. YES NO Haugen Haugen Gundlach Gundlach LeMair LeMair Petersen Petersen Zieska Zieska {Seal} City Manager, l:\02files\02appeal\toohey appeal\cc res.doc Page 3 Lc~tion IV~p Loi~tion /- 0 © lq 200 0 200 400 Feet L__ Dale and Susan Braddy 5572 Candy Cove Trail SE Prior Lake, Minnesota 55372 952/440-7723 April 29, 2002 Frank Boyles, City Manager Prior Lake City Council This is a request for an Appeal to reverse the decision of the Planning Commission granting all variances requested by Mark Toohey to allow building on 5584 Candy Cove Trail, legally described as Lot 31, Candy Cove Park. Dale and Susan Braddy Adjacent Property Home Owners Received in the Office of Frank Boyles by: Date: ~////~ ¢ 2-~ Time: !1..~ ~4. Ft. EXHIBIT A ILOW FLOOR 970.3 / U,~R,~¢E FLOOR= 977.S J GN ~--ls--gg ~ 967.9 · X96§.9 '1 DWG NO 010f EXHIBIT B / / BRYCE D. HUEMOELLER JAMES D. BATES ALLISON J. GONTAREK HUEMOELLER & BATES ATTORNEYS AT LAW 16670 FRANKLIN TRAIL, #210 POST OFFICE BOX 67 PRIOR LAKE, MINNESOTA 55372 Telephone: 952.447.2131 Facsimile: 952.447.5628 E-mail: huemoellerbates(&aol.eom 1 3 2gl OF COUNSEL: CHARLES C. HALBERG March 13, 2002 Prior Lake Planning Commission 16220 Eagle Creek Avenue Prior Lake MN 55372 Via Hand Delivery Re: Request for variances to allow a building permit for property located at 5584 Candy Cove Trail, Prior Lake, Minnesota Dear Planning Commission Members: Our client, Mr. Mark Toohey, purchased a non-conforming platted lot of record, legally described as: Lot 31, Candy Cove Park with a street address of 5584 Candy Cove Trail, Prior Lake, Minnesota. He purchased the lot on August 18, 1995 from Esther A. Stankovich with the intention to build a home on it, a dream of his since childhood. The lot is steep, sloping to the shore of Candy Cove on Prior Lake. After conferring with the Prior Lake City Engineering and Planning Departments, Mr. Toohey's request involves three variances to the Ordinances currently in effect: (A) a variance from the bluff set back requirement (Ord. 1104.308(2)); (B) a variance from the width requirement at the ordinary high water mark and width requirement at the front of the lot (Ord. 1104.302(3)); (C) a variance from the standard front yard set back (Ord. 1102.405(3)). Prior Lake Planning Commission Page 2 March 13, 2002 At the suggestion Of Planning staff, the house was moved forward on the lot to minimize the impact on the bluff impact zone. Mr. Toohey has, as required by the City, performed borings to establish the stability of the soil and the engineer's report is enclosed with this application. To promote the most appropriate and orderly development within the community, the Minnesota statutes authorizes zoning ordinances and allows for the Board of Adjustment: To hear requests for variances from the literal provisions of the ordinance in instances where their strict enforcement would cause undue hardship because of circumstances unique to the individual property under consideration, and to grant such variances only when it is demonstrated that such actions will be in keeping with the spirit and intent of the ordinance. Minn. Stat. §462.357, Subd. 6(2) (emphasis added). Case law states that "[t]he statute is clearly intended to allow cities the flexibility to grant variances where.., the property owner would like to use the property in a reasonable manner that is prohibited by the ordinance." Rowell v. Board of Adjustment of the Ci_ty of Moorhead, 446 N.W.2d 917, 922 (Minn. Ct. App. 1989). Based on the nine hardship criteria used by the Planning Commission to evaluate variance requests, Mr. Toohey has significant obstacles to overcome under a strict application of the Ordinances. It is only reasonable to grant him the ability to build his modest, strategically placed dwelling as shown on the submitted drawings. Under the first criteria, Mr. Toohey's lot is a non-conforming, steep and oddly shaped platted lot of record. When Mr. Toohey originally purchased his property, access existed across adjacent public property. Mr. Toohey has now been arbitrarily excluded from the use of this original access. Based on this exclusion, Mr. Toohey has been assured by the City that he will be granted access over and across a public right of way ("Tract C") for ingress and egress purposes. In order to smooth this process, we have enclosed a proposed Agreement for Private Improvement of Public Property between Mr. Toohey and the City granting Mr. Toohey access and allowing a driveway improvement. As part of this variance request, we respectfully ask that this Agreement be approved. Prior Lake Planning Commission Page 3 March 13, 2002 To overcome the practical difficulties and undue hardships associated with his property, Mr. Toohey has developed a modest home plan which he proposes to place as far up on his property as possible. Although the adjustment to minimize the bluff impact created a need for a front setback variance, the buffer of Tract C was considered a mitigation to the front setback deviation. Mr. Toohey has valiantly complied with all requests of the City in locating his home site and his sole objective is to build a modest house and enjoy the property he purchased. Second, the lot and area surrounding it are steeply sloped, a condition that does not apply generally to other land in the Use District. Soil testing has been performed at the City's request to verify the stability of the soil (see enclosed engineer's report) and Mr. Toohey's proposed plan places his house significantly farther back on the bluff than the existing house to the west. Mr. Toohey has mitigated the peculiar challenges of his lot as much as possible, possibly more than his proposed neighbors. Third, the need for the variances is conclusive. Simply stated, without the requested variances, Mr. Toohey is unable to build on his property. This significantly devalues the lot. Mr. Toohey purchased a lot he was assured was "buildable." Denial of his ability to build is a removal of a substantial property right. Fourth, allowing Mr. Toohey to build in no way impairs the supply of light and air to any adjacent property. As previously mentioned, Mr. Toohey is substantially back from any neighboring houses. His proposed plan is a modest structure, placed as far back on the property as possible. No additional congestion will result from allowing-Mr. Toohey to build his house, no additional danger of fire or to the public safety will be created. Fifth, while Mr. Toohey's proposed plan is modest, it is well within the neighborhood standards. Allowing him to build in no way diminishes or impairs established property values and will actually increase the overall presence of the neighborhood. Tract C, over which Mr. Toohey's access will run, is unsightly and overgrown. His proposal allows for landscaping and creating a driveway, significantly improving the curb side appearance of the property and the entrance to the neighborhood. Sixth, the granting of the variance request will preserve the spirit and intent of the Prior Lake Zoning Ordinances by contravening the undue hardship created by conditions unique to the property due to its shape and size and proximity to the lakeshore. Prior Lake Planning Commission Page 4 March 13, 2002 Seventh, this request for variances is not a convenience but a necessity. Mr. Toohey has worked very hard with the City Engineering and Planning Departments to bring the house as far forward as possible and made other adjustments to bring the proposed building within Ordinance standards. The granting of variances is necessary in order for Mr. Toohey to build on his property. Eighth, the strict application of the Prior Lake Zoning Ordinances to Mr. Toohey property would provide for no buildable area. However, it was platted as a buildable lot. Mr. Toohey had no part in the platting and purchased the property in good faith and in reliance on the fact he could build a house on Candy Cove, his long held dream. Finally, while the house will be expensive to build, Mr. Toohey is willing to assume the cost and brings no argument regarding economic hardship, with the exception that if variances are denied, the direct result is an unbuildable platted lot of record. Based on the principles set forth under Minnesota statutes and the Rowell decision, we believe the Planning Commission should find as follows: 1. Strict application of the Prior Lake Zoning Ordinances will result in undue hardship with respect to Mark Toohey's property because it will preclude the preservation and enjoyment of Mr. Toohey's property rights, by denying him the ability to build on a platted lot of record. 2. The undue hardship results from the circumstances unique to the property because of the shape, size and grade of the lot. 3. The undue hardship is caused by the provisions of the Prior Lake Zoning Ordinances and is not the result of the actions of the owner, because the owner's proposed use of the land is reasonable and the strict application of the ordinances would preclude such reasonable use. 4. A variance preserves the spirit and intent of the Prior Lake Zoning Ordinances, produces substantial justice and is not contrary to the public interest, because the reasonable use is consistent in all respects with the existing and proposed land use in the neighborhood, and provides an enhancement to the neighborhood as a whole. Prior Lake Planning Commission Page 5 March 13, 2002 On behalf of Mr. Toohey, we respectfully request that the Planning Commission approve: (1) the requested variance from the bluff set back ordinance, (2) the requested variance from lot width requirements at the ordinary high water mark and at the front of the lot, (3) the requested variance from minimum set back from the front of the lot, and (4) the Agreement for Private Improvement of Public Property. This has been a protracted effort and Mr. Toohey has had many obstacles to overcome before this request could be submitted. He has unfailingly attempted to move within the channels provided for citizens and has communicated his plans openly with City staff. We appreciate your consideration. V~~j~.ruly yours× .~llison J. Gontarek Enclosures cc: Mark Toohey ' I have reviewed the attached proposed request ('roohey Variance, #02-030) for the following: Water ,X, City Code ?' Grading Sewer X Storm Water Signs zoning Flood Plain ,X County Road Access Parks Natural Features Legal Issues Assessment Electric Roads/Access Policy Septic System Gas Building Code Erosion Control ~ Other Recommendation: Approval Denial Conditional Approval Comments: t.f~~~b ~ ! ,.~ ~ ~~ ~~ ..~ ~_. ~ ~ Please return any comments by Thursday, April 4, 2002, to Jane Kansier, Planning Coordinator City of Prior Lake 16200 Eagle Creek Avenue SE Prior Lake, MN 55372 Phone: (612) 447-9812 Fax: (612) 447°4245 1:\02files\O2variances\O2-O30\referral.doc Page 2 EXTL Of C-~TORY BORINGS FOR MARK TOOHEY Job Number 010594 5300 S. County Road 10l Minnetonka. MN 55345 Phone: (612) 474 7964 .AD VANCE SUR V£YING & ENGINEERING CO. S. UR VEYL/VG / EiYGINEERIzYG / GEOTECHNICAL 5300 South Count.',' Road 101 Minnetonka..X, IN,.,.~,<<~ '< Phone 9<'~._ 474 7964 Fax 952 474 8267 November 20. 2001 ':r. Mark Toohey _ ,60 136th Street Court 5avaoe Minnesota. NEN' 55378 : . ne: 9__ 4,4.7 4860 Dear Mark: At your request, we have conducted a preliminary, investigation of soil conditions on your site at the locations you specified. The tbllow'ing is a tabulation of data about your site: Site Address: Ci.ty L e g..a_l__.D e__s c_n_'_ption: Benchmark: Datum: 'S'S 8-i' ~-~id.,;--e °;-e T;iO'Sl5 ............ Prior Lake, Minnesota Lot 317 Candy Cove Trail Top of manhole = 971.26 the North American Datum METHODS: The investigation consisted of exploratory, soil borings to aid in identifying soil and water conditions. We have indicated the approximate locations of' the borings on an attached site plan sketch. Elevations are very approximate. Borings were taken with a truck mounted C1V[E 45 drill rig using solid stem continuous-flight augers. Soils encountered in the borings were visually and manually examined in the field by the soils en~neer. The soils are classified on the basis of tex-ture and plasticity in accordance with ASTM D2487 "Unified Soil Classification System" and a chart explaining that system is attached. P,.E C 0 MMENDATI ON S: SB# . TOP [ WATER FIRM DESCRiPTION ,)F FIRST FiRM SOIL ENCOUNTERED . 1 . 974 DRY 974 Firm. brown sandy clay iCL). some rocks, dr',' 2 i 969 DRY 969 Firm. brown sandy clay (CL). some ~ravel 3 976 DRY 976 Firm, brown sandy clay (CL) The above table is a summary, of the soil boring results. The "SB#" column indicates the soil boring number which corresponds to the attached site plan. The "TOP" column indicates the assumed elevation at the top of the soil boring. The "WATER" column lists the elevation at which water ',vas encountered in the borings imrnediately after the completion of the boring or if no water table was encountered, "DRY". The "FIRiM" column indicates the elevation at which suitable soils were first encountered in the boring and the "DESCRIPTION" column describes these suitable soils. On this site, the firm brown sandy clay encountered at the surface is suitable for the support of your proposed dwelling. It is our opinion that these suitable soils are capable of supporting footings proportioned to exert a bearing pressure of no more than 2000 pounds per square foot. It is also our opinion that these soils are stable on slopes up to 1:1 and the grading and drainage plan which shows proposed contours and the existing topographic map, which shows the slope of the existing site, shows slopes that are much flatter, and it is therefore our opinion that slope stability is not a concern for the proposal to place a home on the site as shown by our grading and drainage plan. STANDARD CAUTIONS & LIMITATIONS: We measure the depth of any ground water that mav have accumulated in the borings immediately at completion of the borings. We do not monitor the borings over a period of time. Borings left open are a hazard to pedestrians, leave an opening ~br pollutants, and quickly cave in rendering any measurements of little value. The water levels we observe are thus only an indication of an immediate and rapid flow of water into the borings indicating that drain tile system might be over taxed in such soils. Slow inflows may not be detected and variations in rainfall can affect gound water levels. While it is our opinion that a properly desired and installed drain tile system and submersible sump pump will keep most below grade spaces dr3,,', and should be a standard part of all new construction, we make no guarantees in this regard. Of necessity, the area of the borin~ in relation to the area of the site and the depth of the borings are limited. Suggestions and recommendations of this report are opinions based on data obtained from the borings. If upon excavation, conditions that are not consistent with the borings are revealed, it is a~eed that you will notit'y us so that we may gather further information and modilS' our opinion or indicate that no modification is necessary in a written addendum to this report; or f~.iling to engage our services to prepare such written addendum it is a~eed that you proceed at your own peril. I hereby certify that is report was prepared by me or under my direct supervision and that I am a duly Re~stered Professional En~neer under the Laws of the State of Minnesota. ADVANCE SUR.VEYING & ENGINEERING CO. James H. Parker P.E. & P.S.. No. 9235, President UNIFIED SOIL CLASSIFICATION S'[STEM [inorganic To plasticity, b~avely cla.x s. sand.,,' cla)s, silt.,,' clays, clays iCL) ()['iOW medium lean Well sands and sands, little fines graded gravely or f SP) ?oor!y bq'aded gravely ~r s;.!l'lds and sands. little rilles (GW) We!l ~-raded .,~,.'¢~s and ~r~velosand mixtures. !i~'cle or no fines I Cl,~)'ey sand-tiny SC) ~,~nds. mixtures (GC) Cl,~?e)' Fn-avels. gr,~vel-s~nd-cl~y mixtures (SM) Silty snnds, sand-silt mixtures (OL) Orgnnic siirs ~nd organic silty clays of Iow (OH) Organic clays of medium to high plasticity (~) Peat. muck. ~nd od~er highly organic soils (ML) Inorg,~nic silts, rock flour, silty or ¢tayey fine sand (CH) lnorg,~nic clays or'high plasticity,, fat clays (MH) Inor~,~nic silts, micaceous or diatomaceous silts, elastic silts (GP) Poorly gr,~ded ~ra~ets and ~avel-sand mixtures, little or no fines (,GM) Silty gwvels. ~m~vel-sand-silt mixtures ] EXPLOI:L TORY SOiL BORING LOG [i~',~<~;,t.POJ i l.."08, Z01)l .\"q,. Mark Tool:ex ?!or Lake. Minnesota .:C:~'<t) !35' D.\V'E CITY CLIENT [ i::.::v.vr:~:s m:i,m "DESCRiP';'iON 974 0 973 1 972 2 971 3 970 4 969 5 Firm ,brown sandy clay(CL),some rocks, dry 968 6 967 7 966 8 965 9 964 10 963 11 962 12 961 13 Compact,brown poorly graded finesand (SP),gravellayers 960 14 959 15 958 16 continued next page '%V - DENOTES WATER LEVEL DETECTED AT COMPLETION OF BORING..MAY RISE ! (D=DRY) 'N - STANDARD PENETRATION TEST BLOW COUNT ADVANCE SURVEYING / ENGINEERING / GEOTECHNICAL 5300 HIGHWAY 101 SO. MINNETONKA. MINNESOTA 55345 PHONE: 474 7964 EXPLO~,TORY SOIL BOR,?,iG r OG: 11 ! I/0g~Z!~l)': N!r. Mark Toc. i'~e~ Prior Lake. Minnesota I .it". BNO BY DATE CL:ENT C iT":' { z.i :.'...x: ;~,, :~ui,'m DESCR: P'UC, N W* 957 17 Compact. brown poor!y zraded fine sand (5P). gravel layers 956 18 Compact. brown well ..,raded sand (SW) 955 19 -D- *W - DEN{)TES WATER LEVEL DETECTED AT COMPLETION OF BORING. MAY RISE ! rD=DRY) 'N - S'FANDARD PENETRATION TEST BLOW C{)t;NT ADVANCE SURVEYING 5300 HIGHWAY 101 SO. / ENGINEERING / GEOTECHNICAL .MINNETONIC-X. MINNESOTA 55345 PHONE: 474 7q64 t EXPLOI atTORY SOIL BORING LOG-," · ! :_! :.:., T'T~N ~:!,':'H DESCRIPTION ;,~" X 969 0 968 967 2 Firm, brown sandy clay (CL), some gravel 966 3 965 4 964 5 963 6 962 7 961 8 960 9 959 10 Compact, brown well graded sand (SW) 9E8 11 957 12 956 13 955 14 954 15 953 16 Compact ~ brown poorly ~raded fine sand (SP) continued next page -*W - DENOTES W,\'rER LEVEL DETECTED AT COMPLETION OF BORING. MAY RISE ! (D=DRY) *N - ST:-\NDARD PENETRATION TEST BLOW COUNT ADVANCE SURVEYING / ENGINEERING / GEOTECHNICAL { 5300 HIGHWAY I01 $O. MINNETONKA. MINNESOTA 55345 PHONE: 47,1 v064 i~'XPLORATORY SOIL BORING LOG # 21 !,11 ~4 POJ I i 0:8,'2()01 Mr. Mark Te. oh¢'. Prior Lake. Minnesota t .;OBNO BY DATE CLIENT CITY I'7'' ,:,' ~ ;':oN :mi,,~ DESCRii:'FiO'4 \V:.: x':,~ 952 17 951 18 1 Compact, brown poortv. ,..*~ad~d~ fine sand (SP) 950 19 -D- DENOTES WATER LEVEL DETECTED :-\T COMPLETION ()F BORING. MAY RISE ! (D=DRY) STANDARD PENETIL~.TION TEST BLOW COL~T ADVANCE SURVEYING / ENGINEERING / GEOTECHNIC.M. 5300 HIGHWAY 101 SO. MINNETONKA. MINNESOTA 55345 PHONE: 474 7964 ,]EXPLORATORY SOiL BORING LOG # · 3[ i'.;! fiS,:-tp(.)j I i. 08,2!)0i ),Ir. \.lark Toot~ey Prier Lake. Minnesota ; .ioi:x(() BY DATE CLIENT CITY I [ :.; ~. x i:l,~; DEPTI-I DESCRIPTION \\" N'"' 976 0i 975 1 974 2 973 3 972 4 Firm, brown sandy clay (CL) 971 5 970 6 969 7 968 8 967 9 966 l0 965 11 Compact, brown poorly graded sand (SP), some gravel 964 12 963 13 962 14 961 15 Compact, brown well graded sand (SW) 960 16 continued next page "~.;' - DENOTES WATER LEVEL DETECTED AT COMPLETION OF BORING. MAY RISE ! (D=DRY) "N - STANDARD PENETRATION TEST BLOW COL,NT ADVANCE SURVEYING / ENGINEERING / GEOTECHNICAL 5300 HIGHWAY 101 SO. MINNETONKA. MINi~ESOTA 55345 PHONE: 474 7964 EXPLOi:L TORY SOIL BORING LOG" :'":5,)- POJ I !,.'08,2001*Ir. Mark Too. i:ev .Prior Lake. Minnesota ' '2",";3xO BY DATE Ci_iEN T CITY !: ':" ~::~5: :~l":'~-'. DESCRIPTR3',: W':: 959 17 ' Compact . brown well ~raded sand 958 18 957 19 956 20 955 21 Compact, brown poorly ~raded fine sand ($P) 954 953 23 952 24 -D- DENOTES W..'\TER LEVEL DETECTED AT COMPLETION OF BORING. MAY RISE ! (D=DRY) STANDARD PENETRATION TEST BLOW COUNT ADV.-UNCE SURVEYING / ENGINEERING / GEOTECHNICAL 5300 HIGH%'AY 101 SO. MINNETONKA. MINNESOTA 55345 PHONE: 474 7964 .5 u.z I 24.0 "~ NOTE: EXTRA REQUIRt 0 r~ TRACT C, AS DESCRIBED E SURVE'I'ING CO. FOR THE C PRIOR LAKE. Planning Commission Meeting April 22, 2OO2 Comments from the public: There were from the public. closed at 7:05 p.m. Comments from th, All the Commissioners a title process and should be approved. MOTION BY RINGSTAD. COUNCIL APPROVE BLOCK 4, REGAL TO RECOMMEND CITY SURVEY FOR LOTS 22-24, Vote taken indic~ all. MOTION CARRIED. This matter go before the City Council on May 6, 200~ C. Case File #02-030 Mark Toohey is requesting a variance to the front yard setback and bluff setback on the property located at 5584 Candy Cove Trail. Planning Coordinator Jane Kansier presented the Planning Report dated April 22, 2002, on file in the office of the Planning Department. The Planning Department received a variance application for the construction of a single family dwelling with an attached garage for the property located at 5584 Candy Cove Trail, and legally described as Lot 31, Candy Cove Park. The following variances are being requested: 1. A 23.86' variance from the minimum 75' lot width at the Ordinary High Water Elevation (OHW); 2. A 25' variance to the front yard setback requirement to allow the structure to be setback 0' from the front property line rather than the minimum requirement of 25 feet; 3. A variance to allow a structure to be located within the Bluff Impact Zone; 4. A 4' variance to allow a 28' wide driveway at the right-of-way line rather than the maximum 24 feet. The lot is considered a nonconforming lot of record because it does not have the minimum required lot width of 90' at the front building line. The lot also does not meet the minimum lot width of 75' at the OHW. The lot is considered a bluff under the Shoreland provisions of the Zoning Ordinance. Using the required setbacks, including the front yard, side yard, and top of bluff, this lot contains a building envelope approximately 100 square feet in area. L:\02FILES\02planning comm\02pcminuteshMN042202 .doc 5 Planning Commission Meeting April 22, 2002 The applicant is requesting variances to construct a single family dwelling on this lot. The proposed dwelling is a 1 V2 story structure with a 20' by 22' attached garage. The footprint of the house and garage includes 1,796 square feet. The applicant is also proposing a 22' by 16' deck and a 19' by 18' deck, both located on the lakeside of the house. The proposed impervious surface on the site is 23%, which is within the allowed limits of the Zoning Ordinance. The DNR did not comment on this request. The City Engineering Department cormnents note the City will grant an easement for landscaping and access across the right-of-way. In addition, the City will be responsible for providing sewer service at the time the building permit is issued. Based on the above findings, the staff found this request meets the nine hardship criteria. There is no legal alternative for the construction of a house on this lot. The staff therefore recommended approval of the requested variances. Comments from the public: Allison Gontarek, attorney for the applicant, Mark Toohey, explained working with staff to address their concerns. The proposed single family home is simple and the applicant has gone to great effort and expense to make a reasonable request. He has complied in every respect. Ringstad questioned Toohey if he was promised it was a buildable lot when he purchased the property. Toohey responded the lake setbacks have changed since he purchased the property. Criego questioned the decks. Toohey responded they were walkout platforms. Criego also questioned the front yard setback. Gontarek responded there were two alternatives. Staff had suggested pulling the house forward so it would be as far out of the bluff as possible. Lemke questioned whether the number of borings were adequate for the engineer's analysis. Staff noted the applicant had received a separate grading permit for that work. They were restricted by the ordinance as to the location of the borings. Bruce Thomas, a neighbor, stated he had several concerns. First, the impact on the remaining lots. Runoff into the lake and Mr. Braddy's property. Another concern was the proposed size of home being less than any other home in Candy Cove and that it would not conform to the rest of the neighborhood. He also questioned the additional noise from Highway 13 with the bluff impacted. Thomas suggested the Commissioners go out and see the property before they make a decision. L:\02FILES\02planning comm\02pcminuteshMN042202 .doc 6 Planning Commission Meeting April 22, 2002 Shelly Hines, 5540 Candy Cove Trail, stated he was not clear on the plan from the drawings. His concern was for noise coming off the highway with the bluff being shaved off. He also felt the driveway would be a blind curve. Art Shoot, lives two houses down from the property, felt that originally Mr. Braddy's property as well as this property would be unbuildable. Noise is also an issue. He cannot open his windows until the leaves come out on the trees. This house will not impact the noise. The public hearing was closed. Kansier pointed out the City has a Tree Protection Ordinance. The Shoreland District also restricts the type of cleating permitted on a bluff. It is not clear-cutting. The other issue is there is no minimum size for a house or garage building pad. The applicant is proposing a modest house that fits the limitations of the lot. McDermott stated the Engineering Department reviewed the runoff very carefully. The design will minimize runoff to Braddy's property. The road was recently reconstructed and problems should not occur. Parking will only be allowed on one side of the street. Kansier addressed Mr. Shoot's concern regarding subdividing two adjoining lots. The other lots have been addressed. These lots are under separate ownership and not combined. The lots were all platted long before the current ordinance. Stamson asked staffto address the neighbor's concern for buildable lots. Kansier explained the ordinances and property lots. Most of the lots on Candy Cove would not be permitted under today's ordinances. She also said it takes pretty extreme conditions to say a lot was unbuildable. Any application would be asked to provide an Engineer's Report with a variance application to ensure the conditions on the lot would not preclude a building. Comments from the Commissioners: Criego: · Questioned staff on the streets. McDermott explained the right-of-way obtained from MNDOT. Part of the easement was granted to Dale Braddy. If this is application is approved, staff will take this before City Council for easement approval. McDermott explained the potential access to the other lots. · Questioned the access and land locking the properties. Kansier responded there would be easement accesses recorded. · Can understand this applicant requesting access but concerned for the other adjoining properties. · Kansier explained why the City requested Mr. Toohey to have an engineering report up front. · Questioned why the driveway would be 28 feet wide instead of 24 feet. McDermott said it would be 24 feet at the roadway. L:\O2FILES\O2planning comm\02pcminutesWIN042202.doc 7 Planning Commission Meeting April 22, 2002 · Has been at the sight, the applicant has done his best to comply. · It would not interfere with the quality of the lake. · Questioned the zero lot line. Kansier explained the measurement from the bluff. They were minimizing the effect as best as they could. · Good application. In favor. Lemke: · Questioned staff what would happen if the surveyor was offa few inches. Kansier explained private use of public property. It has happened before and that is how it is addressed. · McDermott said property boundaries are marked clearly and will make every effort to make sure it does not happen. · Agreed with Criego, it is a good application. · Clarified he had been to the site. Atwood: · It is a good use of the property. Approve. Ringstad: · It meets all 9 hardships. Approve. Stamson: · This lot is clearly unbuildable without variances. · Support the variances as proposed. MOTION BY CRIEGO, SECOND BY ATWOOD, TO ADOPT RESOLUTION 02- 007PC APPROVING THE REQUESTED VARIANCES TO THE LOT WIDTH AT THE OHW, THE FRONT YARD SETBACK, THE BLUFF SETBACK AND THE DRIVEWAY WIDTH. Vote taken indicated ayes by all. MOTION CARRIED. Kansier explained the appeal process. D. Case File #02-029 Steven & Patricia Mosey are requesting variances to permit a garage and room addition to be setback less than 25 feet to front lot line; less than 5 feet to side lot line; a sum of side yards less than 15 feet; eave encroachment less than 5 feet to front and side lot line; a 63.8 foot building wall setback to side lot line less than required; and a driveway setback less than 5 feet to side lot line for the property located at 14620 Oakland Beach Avenue SE. Zoning Administrator Steve Horsman presented the Planning Report dated April 22, 2002, on file in the office of the Planning Department. The Planning Department received a variance application from the property owners for the construction of an attached garage and second story addition to an existing single- L:\02FILES\02planning comm\02pcminuteshMN042202 .doc 8 Dale and Susan Braddy 5572 Candy Cove Trail SE Prior Lake, Minnesota 55372 952/440-7723 April 29, 2002 Frank Boyles, City Manager Prior Lake City Council This is a request for an Aooeal to reverse the decision of the Planning Commission granting all variances requested by Mark Toohey to allow building on 5584 Candy Cove Trail, legally described as Lot 31, Candy Cove Park. Dale and Susan Braddy Adjacent Property Home Owners Received in the Office of Frank Boyles by: Date: ~///~¢ 2~ Time: Jane Kansier From: Sent: To: Subject: Jane Kansier Tuesday, April 30, 2002 10:23 AM Legal Dept. Prior Lake American (E-mail) Legal Notices Please publish the attached legal notice in the Prior Lake American on Saturday, May 4, 2002. please contact me at 952-447-9812. Jane Kansier, Planning Coordinator City of Prior Lake publish note. DOC If you have any questions, May 16, 2002 Mark Toohey 5663 136th Street Court Savage, MN 55378 Huemoeller and Bates Attention: Allison Gontarek 16670 Franklin Trail SE Prior Lake, MN 55372 RE: Agenda and Agenda Report Attached is a City Council Agenda and Staff Report for the May 20, 2002, City Council meeting. The meeting begins at 7:30 p.m. and is held at the Fire Station located at 16776 Fish Point Road (east of HWY 13 on the south side of CR 21). If you cannot attend the meeting or have any questions, please contact me at 447-9810. Sincerely, J~,te A. Jane Kansier, AICP Planning Coordinator Enclosure I:\deptwork\blankfrm\meetlrcc.doc 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (952) 447-4230 / Fax (952) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER May 16, 2002 Dale and Susan Braddy 5572 Candy Cove Trail SE Prior Lake, MN 55372 RE: Agenda and Agenda Report Attached is a City Council Agenda and Staff Report for the May 20, 2002, City Council meeting. The meeting begins at 7:30 p.m. and is held at the Fire Station located at 16776 Fish Point Road (east of HVVY 13 on the south side of CR 21). If you cannot attend the meeting or have any questions, please contact me at 447-9810. Sincerely, Ja~ect. Kan~ Jane Kansier, AICP Planning Coordinator Enclosure I:\deptwork\blankfrm\meetlrcc.doc ].6200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-].7].4 / Ph. (952) 447-4230 / Fax (952) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER JAMES R. HILL, INC. PLANNERS ENGINEERS SURVEYORS '2500 WEST COUNTY ROAD 42, May 17, 2002 SUITE 120, IIURNSVILLE, MINNESOTA 55337 (952) 890-6044 FAX 890-6244 Mr. Dale E. Braddy 5572 Candy Cove Trail Southeast Prior Lake, MN 55372 RE: Lot 31, Candy Cove Park Dear Mr. Braddy: Per your request I have reviewed reports, ordinances and survey pertaining to the above referenced lot. 1. The hardship was "created" with the purchase of the lot. The present owner of Lot 31 purchased the lot subject to the present ordinances. He purchased a lot with no building envelope. 2. Setbacks in existing neighborhoods are based on averaging adjacent homes. The adjacent setbacks do not support a "0" setback on Lot 3 1. 3. The soil boring logs do not indicate any blow counts. The standard penetration test blow counts are not indicated. 4. The grading of the drive for Lot 31 will reduce the existing elevation of Lot 31 exposing the existing neighbor to Highway 13. 5. The drainage arrows and the proposed contours on the west side of Lot 31 are in conflict. The drainage will move perpendicular to the proposed contours. Water runs onto the adjacent lot to the west. 6. The existing elevations on the soil boring do not match the contours on the certificate of survey by as much as 5 feet. 7. I have also shaded an additional area where grade will take place to provide drainage from the rear of the proposed house. If you have any questions, please do not hesitate to call me. Respectfully, JAMES R. HILL, INC. Harold C. Peterson, L.S. Vice President HCP:hf Jane Kansier From: Sent: To: Subject: Shelley. G.Hines@supervalu.com Tuesday, May 21,2002 9:40 AM JKansier@OityofPRIORLAKE.com RE: Question on City Council Agenda Report Thanks for the response. It confirmed my suspicion that I did not fully know or understand the context of the first item about hardship. Your explanation of nonconforming lots also makes sense to me given the way the term was used. I gained some sense of these items in last night's meeting, but your explanations make them much clearer for me. Thank you for your help in understanding these items. Shelley Hines Super Valu - Distribution Analysis Phone 952-996-7431 Agenda Report JKansier@CityofPRI ORLAKE.com 05/21/02 09:19 AM To: Shelley. G.Hines@supervalu.com @ PMDF cc: Subject: RE: Question on City Council Shelley: I am sorry I did not reply sooner, but I was out of the office until today (Tuesday) and so I did not receive your message. The comments pertaining to the economic hardship do sound contradictory, but in fact refer to two different things. The first means that the variance is not based on an economic hardship. That is, it is not required because it would be more expensive to build without the variance. The second reference pertains to the economic result to the City if the variance is approved (increased tax base). A nonconforming lot of record is a lot that does not meet the current standards, usually in terms of size and/or width, but was legally created prior to the current ordinances. In other words, the lot met whatever requirements, if any, were in effect at the time it was platted. hope this answers your questions. Jane Kansier, Planning Coordinator City of Prior Lake ..... Original Message ..... From: Shelley. G.Hines@supervalu.com [mailto:Shelley. G.Hines@supervalu.com] Sent: Monday, May 20, 2002 11:02 AM To: jkansier@cityofpriorlake.com Subject: Question on City Council Agenda Report I am confused about something in a City Council Agenda Report for a meeting being held tonight. It is the report for the agenda item about the requested variances at 5584 Candy Cove Trail. Either I am misunderstanding something, or a couple statements in the report ended up contradicting each other. I thought you could maybe help me understand it before tonight's ! meeting. I have very little experience with these issues, so I don't always understand the jargon or the context that is inherently familiar to people who frequently work with these issues. So that you know where I am coming from, I should explain that I own the third house down the street from the property that is at issue. I attended the Planning Commission hearing and still have some concerns about the proposal, so want to try to better understand the issues involved in granting variances. On page 5, in item number 9 of the "Issues" section, the report says that "This variance is not based on economic hardship." In the "Conclusion" section, also on page 5, the report says that approval of the requested variance is recommended "on the basis the request meets the hardship criteria". Where I get confused is that these statements seem to be contradictory. Something else you could help me understand is what it means when the report says "The lot is a nonconforming lot of record". The report made this comment on page 4 in item number 2. Thanks for your help in understanding these items. Shelley Hines Daytime Phone 952-996-7431 FILE COPY TO: FROM: DATE: RE: Suesan Lea Pace, City Attorney Jane Kansier, Planning Coordinator~ May 21,2002 Lot 31, Candy Cove Park When reviewing the agenda report for the appeal to the Planning Commission's decision to approve variances on Lot 31, Candy Cove Park, we discussed the nonconforming status of this lot. As noted then, the staffhad made a determination that this lot was a nonconforming lot of record prior to the submittal of any applications for construction on this lot. Section 1104.902 (1) of the Zoning Ordinance lists the conditions that must be applied to a nonconforming lot of record if it is to be considered buildable. Before a variance application was filed for this lot, the staff looked at all these criteria. The staff determined the lot met the criteria as follows: a. The lot exceeds the minimum lot width of 50' and the minimum lot area of 7,500 square feet. b. The lot was previously assessed for sewer and water and the connections are available. c. The lot was created in 1921, consistent with whatever controls existed at that time. The use of the lot is consistent with the Comprehensive Plan. The impervious surface on the lot will not exceed 30 percent. An erosion control plan must be submitted with the building permit, and City inspectors will monitor compliance with that plan. A complete grading and drainage plan is required at the time a building permit is submitted. Without such a plan, a building permit will not be issued for this lot. h. The structure on the lot is consistent with other Ordinance and Building Code requirements. Based on these criteria, the staff determined this was a buildable lot of record. 1:\02files\02appeal\toohey appeal\pace memo.doc Tuesday, May 28, 2002 9:22 AM JAMES H. PARKER (952) 470-8854 p.02 ADVANCE SURVEYING & ENGINEERING CO. 5300 Highway 101 Minnetonka, 1VIN 55345 Phone (952) 474 7964 Fax (952) 474 8267 May 28, 2002 Attn: Ms. Sue McDermott City of Prior Lake BY FAX: 952 447 4263 RE: Mark Toohey soil borings Dear Sue: It is our ophfion that whether tracked or wheeled equipment is used to test soil on the parts of thc Toohey site where the home is proposed, a substantial risk of the equipment ovcrmrnhlg and rolling down the lfill exists on the irregular and steep terrah~. We feel it would be best to have an excavator prepare a path to the boring sites that soil testh~g equipment could travel with safety. W~ undcr~tand that Mark i.~ willfi~§ to rc~torc thc .qt~ to migfi~al ~ondition if hi,~ project doc,~ not progress and has made deposits with the City to guarantee thi.q. Please let us ka~ow your thoughts on this as soon as possible shlce Mark would like to have his excavator prepare a path and schedule our testh~g so he can get on with his home building. Sh~cerely, ADVANCE SURVEYING & ENGINEERING CO. James H. Parker P.E. & P.S. No. 9235, lh~idcnt Jane Kansier From: Sue McDermott Sent: Wednesday, May 29, 2002 10:33 AM To: Frank Boyles Cc: Jane Kansier Subject: Toohey Variance Frank- In November, the City issued a grading permit to Mr. Toohey in order for him to grade a temporary access to his lot to obtain soil borings. The access was chosen to minimize disturbance to the property. Mr. Toohey's engineer would have obtained borings on the east side of the lot had it been accessible from the temporary driveway or if we had allowed additional grading on the lot. I understand that the council has conditioned Mr. Toohey's variance on him obtaining another soil boring in the northeast corner of the proposed house location. The only way the boring could be taken is to allow additional grading on the lot. I have given you a copy of a letter from Mr. Toohey's engineer stating that he is unable to access the required soil boring site with either a wheeled or tracked vehicle. Although I was not at the May 20th council meeting, I don't believe the council was aware that additional grading would be needed in order for the engineer to provide the soil boring. I met with Bob Hutchins yesterday to discuss conditions that we could require with the building permit to accomplish what I believe was intended with the requirement for an additional boring. Mr. Toohey's engineer would be responsible for the following once the building permit is issued: 1)The additional boring would be obtained once the building permit is issued and site grading allowed. If deemed necessary by the results of the boring, the foundation is to be designed by a licensed engineer. 2) Provide site observation during foundation excavation 3) Approve footing placement 4) Provide site observation for backfilling, including stabilization of bluff 5) Provide compaction test results for all areas where a slab is to be installed 6) Sign off that the project was completed per the design I have discussed this with Mr. Toohey's engineer and he believes that these are reasonable requirements. Let me know if you have any additional questions. Sue McDermott City Engineer City of Prior Lake (952) 447-9831 Jane Kansier From: Sent: To: Cc: Subject: Frank Boyles Wednesday, May 29, 2002 4:41 PM Chad LeMair; Jack Haugen; Jim Petersen; Joe Zieska; Mike Gundlach SUESAN PACE (E-mail); Sue McDermott; Jane Kansier FW: Toohey Variance When the council approved the Toohey Variance request they directed, in addition to the storm water plan, and removal of one deck that an additional boring be made on the far side of the parcel next to the proposed footing. We have asked the engineer to accomplish this work and he has advised that he cannot safely do so without grading an access to the footing location. Since everyone's objective was to assure a stable slope, we intend to issue the building permit subject to the conditions set forth in Sue's e-mail below. We believe that these safeguards are comprehensive and will be even more effective in addressing concerns raised by the city council and the surrounding neighborhood. I would appreciate you feedback as soon as you are able. Thanks. Frank ..... Odginal Message ..... From: Sue McDermott Sent: Wednesday, May 29, 2002 10:33 AM To: Frank Boyles Cc: .lane Kansier Subject: Toohey Variance Frank- In November, the City issued a grading permit to Mr. Toohey in order for him to grade a temporary access to his lot to obtain soil borings. The access was chosen to minimize disturbance to the property. Mr. Toohey's engineer would have obtained borings on the east side of the lot had it been accessible from the temporary driveway or if we had allowed additional grading on the lot. I understand that the council has conditioned Mr. Toohey's variance on him obtaining another soil boring in the northeast corner of the proposed house location. The only way the boring could be taken is to allow additional grading on the lot. I have given you a copy of a letter from Mr. Toohey's engineer stating that he is unable to access the required soil boring site with either a wheeled or tracked vehicle. Although I was not at the May 20th council meeting, I don't believe the council was aware that additional grading would be needed in order for the engineer to provide the soil boring. I met with Bob Hutchins yesterday to discuss conditions that we could require with the building permit to accomplish what I believe was intended with the requirement for an additional boring. Mr. Toohey's engineer would be responsible for the following once the building permit is issued: 1)The additional boring would be obtained once the building permit is issued and site grading allowed. If deemed necessary by the results of the boring, the foundation is to be designed by a licensed engineer. 2) Provide site observation during foundation excavation 3) Approve footing placement 4) Provide site observation for backfilling, including stabilization of bluff 5) Provide compaction test results for all areas where a slab is to be installed 6) Sign off that the project was completed per the design I have discussed this with Mr. Toohey's engineer and he believes that these are reasonable requirements. Let me know if you have any additional questions. Sue McDermott City Engineer City of Prior Lake (952) 447-9831 FILE COPY June 3,2002 Allison J. Gontarek Huemoeller & Bates Attorneys 16670 Franklin Trail, #210 Prior Lake, MN 55372 RE: Recording of Variance Resolution and Assent Form Acknowledgment Dear Ms. Gontarek: Enclosed is a certified copy of Resolution 02-74, upholding the decision of the Planning Commission and approving the requested variance for Lot 31, Candy Cove. This resolution must be recorded within 60 days, or by July 20, 2002, at the Scott County Land Records Office. In addition to the certified copy, I have also enclosed a second copy to be stamped as recorded by the Recorder's Office and returned to the Planning Department as proof of recording. Also included is a copy for your records. Also, the enclosed Assent Form must be signed by all property owners and returned to the Planning Department. A building permit will not be issued until proof of recording has been submitted to the Planning Department. Please keep in mind that the variance will be null and void if the project is not completed or if construction has not commenced within one year of the date of the resolution, or by May 20, 2003, as per Section 1108.400 of the Zoning Ordinance. Thank you for your prompt attention to this matter. If you have any questions about this matter, please contact me at 952-447-9810. Sincerely, ~n~ioe ro'rdAi InCa?o r Enclosures 1:\02files\02vadances\02-030\record letter.doc 16200 Ea§le Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph, (952) 447-4230 / Fax (952) 447-4245 AN EQUAL OPPORTUNITY EHPLOYER BRYCE D. HUEMOELLER JAMES D. BATES ALLISON J. GONTAREK HUEMOELLER & BATES ATTORNEYS AT LAW 16670 FRANKLIN TRAIL, #210 POST OFFICE BOX 67 PRIOR LAKE, MINNESOTA 55372 Telephone: 952.447.2131 Facsimile: 952.447.5628 E-mail: priorlakelaw~integraonline.com OF COUNSEL: CHARLES C. HALBERG June 19, 2002 Jane A. Kansier, AICP Planning Coordinator City of Prior Lake 16200 Eagle Creek Avenue SE Prior Lake MN 55372 Re: Grant of variance to Mark Toohey for Lot 31, Candy Cove Park Dear Ms. Kansier: Enclosed please find the Assent of Applicant signed by Mr. Toohey for your file. Mr. Toohey was recording the Resolution with Scott County today and will drop off a stamped copy for your records. I spoke with Sue McDermot about the resolution condition regarding a stormwater/drainage plan. Mr. Toohey will have his engineer forward a statement that the drainage plan incorporated into the survey submitted will not increase or have a detrimental effect on the neighboring properties. Further, Mr. Toohey has been informed by his builder that a drainage plan will be submitted with the building permit application and that the builders' standard policy is to meet with City engineering, at the site, at least twice to discuss drainage and requirements. An additional boring, a condition of the resolution, was originally planned and could not be performed due to Mr. Toohey's engineer's inability to the access the bluff without additional grading. While Mr. Toohey is prepared to meet all conditions under the resolution granting the variances, we are open to suggestions on how to comply with this condition. A hand boring can be performed, if that is adequate. Please advise on what you'd like Mr. Toohey to do. Jane A. Kansier, AICP Planning Coordinator June 19, 2002 Page 2 Please consider this a request for an easement for Mr. Toohey, across the public right of way, to access his property. Enclosed is a deed for grant of easement, similar to that granted to Dale and Susan Braddy. Thank you for your aid and assistance. (bry truly yours~ Allison J. Gontarek Enclosures cc: Mark Toohey June 1, 2002 Jack Haugen, Mayor City Council Members PdorLake, MN 55372 Dear Mayor and City Council Members: The May 20, 2002, vote on our Appeal brought before the City Council ended in a 2/2 vote. Participating in this process proved to us that there was no clear-cut understanding by any member of the Planning Commission, by the City Engineer, or the City Council of exactly where this house is to be built. We are asking you to "Review" this decision. The decision should not be based in anyway on financial reasons; the possibility that the City would have to purchase the property IF Mr. Toohey was unable to build on this site. In addition, the following questions were not answered or even addressed: · VVhere is the exact site of this home, how much earth will be remo~ied, and how much vegetation - and what impact will this have on the lake; · Mr. Toohey "created" the hardships with the purchase of the lot; and purchased the lot subject to the present ordinances. He purchased a lot with n..~o building envelope; · Setbacks in existing neighborhoods are based on averaging adjacent homes. The adjacent setbacks do not support a "O" setback on Lot 31; · The soil bodng logs do not indicate any blow counts. The standard penetration test blow counts are not indicated; · The drainage arrows and the proposed contours on the west side of Lot 31 are in conflict. The drainage will move perpendicular to the proposed contours. Water runs onto the adjacent lot to the west; · The existing elevations on the soil bodng do not match the contours on the certificate of survey by as much as 5 feet; · Additional grading will take place to provide drainage from the rear of the proposed house. The City Council did not address the impact this building will have on the existing neighborhood and lake, and remaining lots. Not one person addressed the question of "How will the removal of the bluff affect the remaining lots?" A decision of this magnitude should have required the input of the Watershed, DNR, and Lake Advisory Committee. All measurements and clear markings should have been done on this site, so that ALL persons voting on this matter knew exactly where the proposed home, the bluff, the Lake, lot lines, adjoining homes, lots, easements, etc. truly were located. This matter should not be a guess. No one walking this lot KNEW the placement of the building, how far down the house would be placed, how much of the 'lot' would be removed while standing on the existing roadway, where the ddveway would actually be placed, and looking up- · how much earth and vegetation would be removed in total how the slope would be graded/changed, · where the water would run · that the existing drainage plan was wrong · that water runs downhill · that additional grading was not indicated in submitted material and will have to be done · etc., etc. This decision was made too quickly, without compiling and understanding all of the facts, implications, and results of allowing all of the variances. We challenge every member of the City Council, Planning Commission, and City Engineer to come to Lot 31 and point out all of the markings. Our impression with meetings with some of the people mentioned - no one knew! Everyone was just walking the lot, and trying to 'figure it out'. Not one involved or reading the 'plan' could correctly identify where this home will be built and all of the markings. If allowed to stand, every property on Prior Lakeshore is buildable, and every lot owner has hardships. If this Decision is allowed to stand, the Planning Commission, City Engineer and City Council by their votes, recommendations, and stamp of approval, are also jointly taking full liability for our property, 5572 Candy Cove Trail SE; for any problems caused by removing the bluff, for the movement of our home, building in the bluff, going against the bluff ordinance, and allowing the many variances, and building of this house. Please review your Decision, do a complete investigation, and know what you have approved and the inevitable consequences. Sin rely, Dale and Susan B~ldy 5572 Candy Cove Trail SE Prior Lake, MN 55372 952/440-7723 CC: Thomas M. Braddy, Esq. Kelly Christie, Esq. Jack P. Fite, Esq. Editor, Prior Lake Amedcan TO: FROM: DATE: RE: CC: Frank Boyles, City Manager Appeal File #02-061 Jane Kansier, Planning Coordinator~ June 28, 2002 Braddy Letter, dated June 1, 2002 Suesan Lea Pace, City Attorney This memorandum is designed to address the statements in Dale and Susan Braddy's letter submitted to the City Council on June 1, 2002. The staff feels a response to some of the items listed in their letter should be documented for the file. The Braddy letter implies that the Planning Commission and City Council were not aware of the issues pertaining to this lot. The minutes of both the Planning Commission meeting and the City Council meeting seem to dispute this. There was ample opportunity for public testimony at both meetings. Furthermore, the decision of the Planning Commission and the City Council was based on the hardship criteria spelled out in the City Zoning Ordinance Section 1108.400 and prescribed by State Statute. According to these criteria, a variance may be granted if there is an undue hardship in applying the Zoning Ordinance regulations. In this case, the Planning Commission and the Council found an undue hardship based on the width of the existing lot of record and the existing topography of the lot. In addition, Section 1104.902 of the Zoning Ordinance lists the criteria to be used to determine whether a nonconforming lot is buildable. These criteria were applied to the lot. Again, both the Commission and the Council found that the existing conditions of the lot would allow a 100 square foot building envelope without the granting of variances; therefore, they concluded a reasonable use of the property did not exist without variances. Both the Zoning Ordinance and State statute prohibit the use of a financial hardship as a reason for granting variances. Financial hardship is usually defined as a more costly alternative to building without the requested variances. The minutes indicate that the applicant is not proposing an oversize house for the lot. Neither the Planning Commission nor City Council considered financial hardship in granting the requested variances. The letter also indicates that the DNR, the Watershed District and the Lake Advisory should have been allowed to provide input into this request. The DNR l:\02files\02appeal\toohey appeal~response.doc was notified of the request, as required by law, and had no objections. The Watershed District does not issue permits for existing single family lots. The Lake Advisory Committee, of which Mr. Braddy is the chairman, has no authority to review and comment on variances. The Braddy letter also lists the following questions they felt were not addressed. These same questions were included in a letter to Mr. Braddy by Harold Peterson, a land surveyor. Mr. Braddy presented this letter to the City Council at the public heating. · "Where is the exact site of this home, how much earth will be removed, and how much vegetation - and what impact will this have on the lake." The information submitted by the applicant included a certificate of survey that identified the location of the proposed house, a tree inventory and a grading plan. This information was forwarded to the Planning Commission and the City Council. In addition, the house location was staked on the site; these stakes were viewed by the staff. Several of the Planning Commissioners also indicated they had walked the site. · "Mr. Toohey "created" the hardships with thepurchase of the lot; and purchased the lot subject to the present ordinances. He purchased the lot with no building envelope." We have no way of knowing what Mr. Toohey knew or did not know when he purchased the lot. We do know Mr. Toohey purchased the lot in August, 1995. The Shoreland Ordinance was approved by the DNR in December, 1995. Prior Lake Zoning Ordinance Section 1101.501 provides that lots of record existing on the effective date of the current ordinance (May 1, 1999) are may be utilized for a single family dwelling if the dimensions of the area and the width are at least 66 2/3% of the requirements of this ordinance (7,500 square feet and 50' respectively). Lot 31 meets this criterion. "Setbacks in existing neighborhoods are based on averaging adjacent homes. The adjacent setbacks do not support a "0" setback on Lot 31." Setback averaging is a provision of the Zoning Ordinance; this is why a variance to that provision was requested. The purpose of the O' setback was to pull the house forward as far as possible in order to minimize the impact on the bluff. The excess right-of-way at this location reduces the impact of the O' setback on the right-of-way and still maintains the appearance of a larger setback. "The soil boring logs do not indicate any blow counts. The standard penetration test blow counts are not indicated." Exploratory borings were done with an auger. The standard penetration test (SPT) was not done as it most often will provide unnecessary information. The boring logs are completed on standard forms. The standard penetration tests were not necessary for this application due to the good soils on the site. Section 1104.902 of the Zoning Ordinance requires a complete grading and drainage plan be submitted to the City Engineer for review. l:\02files\02appeal\toohey appeal~response.doc "The drainage arrows and the proposed contours on the west side of Lot 31 are in conflict. The drainage will move perpendicular to the proposed contours. Water runs on the adjacent lot to the west." A drainage swale is shown on the west side of Lot 31; this swale will direct runoff to the road and the lake. · "The existing elevations on the soil boring do not match the contours on the certificate of survey by as much as 5feet." The elevation of one of the soil borings doesn't match the existing contours on the survey because the applicant was allowed to grade a driveway to access the site. · "Additional grading will take place to provide drainage from the rear of the proposed house." We are unsure about this comment. The Uniform Building Code and standard practice requires additional grading to take place to provide drainage away from the house. Mr. Toohey submitted an Engineer's Report on the impact of this construction on the bluff with his application. This report was prepared by a registered civil engineer, and reviewed by the City Engineer. The City will continue to monitor this impact with a grading plan and storm water runoff plan, submitted as part of the building permit application. As construction proceeds, staff will further monitor the impact on the bluff with regular site inspections. The minutes of the City Council meeting also clearly indicate that the Council considered the impact of the new house on the neighborhood in terms of both noise and aesthetics. The Council noted the house would buffer noise from Highway 13. The Council also noted the proposed house fits the size and limitations of the lot. Finally, the Council considered the impact on the lake, once again by requiring a storm water runoff plan with the building permit application. As the City Council is aware, each variance is site specific and considered on its own merits. The Planning Commission and the City Council analyzed this request based on the hardship criteria and concluded the variances were justified by the substantial hardship created by the conditions of the existing lot. The Planning Commission and the City Council also followed the appropriate procedures in hearing this request. There were two public hearings, properly published and noticed. At each hearing, interested parties were given the opportunity to testify. Both the Planning Commission and the City Council reached their decisions with ample information. The main point of Mr. and Mrs. Braddy's letter seems to be that the Council did not have adequate information to consider the impact of this variance on the bluff, on the existing neighborhood and on the lake. We disagree with this assessment. In our judgment, all of the issues raised were considered in one way or another. We appreciate that Mr. Braddy was disappointed by the City Council's decision; nevertheless, the staff believes the Planning Commission and City Council decision was supported by the evidence in the record and both City ordinances and State law. l:\02files\O2appeal\toohey appealXresponse.doc FRANKBOYLES TO: SUBJECT: September 27, 2002 MAYOR HAUGEN, CITY COUNCILMEMBERS AND CITY ATTORNEY PACE Toohey Variances and Building Permit For your' information, I am sharing a second request from the Braddy's to reconsider the Toohey variances. I telephone Mr. Braddy last week to advise him that this item would not be reconsidered. My phone call was a response to a request he had made a few weeks ago. This time, Mr. Braddy's attorney is making the request. I am assuming that the answer remains the same. 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (952) 447-4230 / Fax (952) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER PATRICK J. KELLY SONG LO FAWCETT CHAD D. LEMMONS ROBERT J. FOWLER SARAH J. SONSALLA DAVID L. PALM Kelly & Fawcett, P.A. ATTO RN E Y S AT L A W 2350 US BANCORP PIPER JAFFRAY PLAZA 444 CEDAR STREET SAINT PAUL, MN 55101 Of Counsd: GALLAGHER LAW FIRM (651) 224-3781 Facsimile (651 ) 223-8019 E-Mail: admin~kellyandfawcett.com September 23, 2002 Susan Pace, Esq. City Attorney City of Prior Lake 16200 Eagle Creek Avenue, S.E. Prior Lake, Minnesota 55372-1714 RE: 5584 Candy Cove Trail Dear Ms. Pace: Please be advised that we have been retained by Dale and Susan Braddy (the "Braddys") with respect to the granting of variances and possible issuance of building permit to 5584 Candy Cove Trail ("Subject Property"). It is our understanding in that the City of Prior Lake ("City") has granted the Subject Property the following variances: A 23.86 foot variance from the minimum 75 foot lot width at the Ordinary High Water Elevation; A 25 foot variance to the front yard setback requirement to allow the structure to be set back 0 feet from the front property line rather than the minimum requirement of 25 feet; 3. A variance to allow a structure to be located within the Bluff Impact Zone; and A 4 foot variance to allow a 28 foot wide driveway at the right-of-way line rather than the maximum 24 feet. It is also our understanding that the variances were granted despite the concerns raised by the Braddys and other neighbors in the area. Documentation was submitted to the Braddys by Harold C. Peterson of James R. Hill, Inc., Planners, Engineers & Surveyors which discusses several concerns. The following is a list of these concerns: The hardship was "created" with the purchase of the lot. The present owner of the Subject Property purchased the lot subject to the present ordinances. He purchased a lot with no building envelope; Susan Pace, Esq. September 23, 2002 Page 2 of 3 Setbacks in existing neighborhoods are based on averaging adjacent homes. The adjacent setbacks do not support a "0" setback on the Subject Property; The soil boring logs do not indicate any blow counts. The standard penetration test blow counts are not indicated; The grading of the drive for the Subject Property will reduce the existing elevation of the Subject Property exposing the existing neighbor to Highway 13; The drainage arrows and the proposed contours on the west side of the Subject Property are in conflict. The drainage will move perpendicular to the proposed contours. Water runs onto the adjacent lot to the west; The existing elevations on the soil boring do not match the contours on the certificate of survey by as much as 5 feet; and There is an additional area where grade will take place to provide drainage from the rear of the proposed house. In addition to the above concerns raised by Mr. Peterson, the Braddys state the following: As nearby property owners/residents, the Braddys are "persons aggrieved" under Minnesota Statute Section 462.361 by the City's decision in approving the aforementioned variances; The City's approval of the aforementioned variances was unreasonable, arbitrary, capricious and unlawful because the City violated its own procedures and standards in approving the variances and because the purported need for the variances is not supported by substantial evidence in the record; o The City failed to include in its process key agencies such as the Department of Natural Resources and applicable watershed districts; The City's approval of the variances is further unreasonable, capricious, arbitrary and unlawful because if implemented it will alter the essential character of the neighborhood and be injurious to neighboring property; The City' s approval of the variances is further unreasonable, capricious, arbitrary and unlawful because the variances are not justified by any undue hardship but rather are solely to assist the violation and contradiction to City ordinances; The Braddys will be irreparably harmed if the building site is allowed to build in conformance with the above-referenced unlawfully approved variances; Susan Pace, Esq. September 23, 2002 Page 3 of 3 The Braddys will be irreparably harmed if the City continues to violate its own procedures and standards by issuing any building permit allowing construction in conformance with unlawfully granted variances; Based on information and belief, the Braddys will suffer damages due to loss of lateral support to their house in allowing the Subject Property to build in contradiction to the bluff ordinance; Based on information and betief tlaat the Braddys will suffer damages as a result of an ill-conceived drainage plan in allowing the Subject Property to develop in conformance with the variance; 10. Based on information and belief, the Braddys will suffer damages due to loss of light and air if the adjacent property is allowed to build according to the variances; and 11. The granting of the variance will diminish surrounding property values and set precedence for other properties. It is our understanding that the Subject Property owner has placed soil erosion fencing which is now in a state of disrepair. The Braddys are also experiencing erosion and as a result, placement of soils from the Subject Property. Please be advised at this time that the Braddys are hereby requesting a reconsideration of the City's actions and if not, they will exercise their rights pursuant to applicable statutes, ordinances and regulations. This letter is serving to place the City on notice for any damages the Braddys may incur as a result of the City's actions. Respectfully yours, KELLY & FAWCETT, P.A. cc: Mr. Dale and Ms. Susan Braddy .0/2002 16:34 FAX 6122387858 HALLELAND LE~I$ ~o04 halleland lewis nilan sipkins & johnson Attorr~s ~( b~w I P.A. 600 Piilr.,bu~y Cemer South 220 South S~xth Stm~t Minneapc~'l~, MN ~5402-4SO1 Office: 612,.~38.1838 lax: 612.33B.TBSB www. hal[elaad.cam Dire~ Dial: F. eall: q~aa~halleland.com October 9, 2002 Patrick J. Kelly, Esq. Kelly & Fawcett, P.A. 2350 US Bancorp Piper Jaffray Plaza 4~.4 Cedar Street St. Paul, MN 55101 RE: 5584 Candy Cove Trail Dear Mr. Kelly: This letter is in response to your letter to me dated September 23, 2002 advising that you have been retained by Dale and Susan Braddy in connection with their objections to a variance that was granted to property located at 5584 Candy Cove Trail ("Property"). The City Council will not reconsider the variance granted to the Property. As you know, the process to obtain a variance involves a public hearing. Your clients received notice of the public hearing and, I understand, your clients testified at the public hearing. The appeal of the variance to the City Council also involves a public hearing. Your clients received notice of the hearing before the City Council. Both Mr. and Mrs. Braddy testffied at the hearing. In deciding any kind of land use issue, the City Coundl considers all of the evidence in the record. It is up to the Council to determine what is reasonable based on the evidence in the official record. The City has issued a building permit for the Property, and it will not reconsider its decision. Further, despite your letter, the City will not be responsible for any damage to Mr. and Mrs. 8raddy's property. During the public hearing, Mr, Rraddy testified that he has had to mud jack his house on several occasions. He has already made a record that he has experienced problems with his home. Problems in the future cannot now arbitrarily be blamed on the construction of a home on the Property. The final point in your letter involved the condition of the erosion fendng installed in connection with the grading and construction on the property. I have spoken with City Staff. They are inspecting the conditiol, of the fencing on a routine basis. If your clients have concerns, they should direct their comments to Mr. Hutchins at the City. DN: 163989 .0/2002 16:34 FAX 6122387858 HALLELAND LEWIS ~oo5 Patrick J. Kelly, Esq. October 9, 2002 Page 2 If you have any questions please feel free to contact me. · Very truly yours, Suesan Le,5 Pace, Esq. Prior Lake City Attorney SLP/mrg cc: Frank Boyles, City Manager City Council DN: 16~989 16200 OF A PUBLIC HEARING TO CONSIDER THE FOLLOWING: AN APPEAL TO THE DECISION OF THE PLANNING COMMISSION TO APPROVE VARIANCES TO TOP OF BLUFF SETBACK, FRONT YARD SETBACK, LOT WIDTH AND DRIVEWAY WIDTH AT THE FRONT PROPERTY LINE FOR THE CONSTRUCTION OF A FUTURE SINGLE FAMILY DWELLING ON PROPERTY LOCATED IN THE R-1 (LOW DENSITY RESIDENTIAL) DISTRICT AND THE SD (SHORELINE OVERLAY) DISTRICT IDENTIFIED AS 5584 CANDY COVE TRAIL. You are hereby notified that the Prior Lake City Council will hold a public heating at Prior Lake Fire Station #1, located at 16776 Fish Point Road SE (Southwest of the intersection of C.R. 21 and Fish Point Road), on: Monday, May 20, 2002 at 7:30 p.m. or as soon thereafter as possible. APPELLANTS: Dale and Susan Braddy 5572 Candy Cove Trail Prior Lake, MN 55372 SUBJECT SITE: 5584 Candy Cove Trail, legally described as Lot 31, Candy Cove Park REQUEST: The appellants are appealing the decision of the Planning Commission to approve variances to the top of bluff setback, the front yard setback, lot width and driveway width at the front lot line to allow the construction of a single-family home with attached garage on the vacant lot located at 5584 Candy Cove Trail. If you are interested in this issue, you should attend the heating. Questions related to this heating should be directed to the Prior Lake Planning Department by calling 952-447- 4230 between the hours of 8:00 a.m. and 4:30 p.m. Monday through Friday. The City Council will accept oral and/or written comments. Oral or written comments should relate to how the proposed construction and requested variances are or are not consistent with the hardship criteria. Prepared this 10th day of May, 2002. Jane Kansier City of Prior Lake Mailed to owners of property within 350' of site on Friday, May 10, 2002. L:\02FILES\02appeal\toohey appeal\mail note. DOC ~ Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (952) 447-4230 / Fax (952) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER / / / / I AFFIDAVIT OF SERVICE BY MAIL COUNTY OF SCOTT ) )ss STATE OF MINNESOTA) '~~[~ ~ff~ of the City of Prior Lake,,County of Scott, State of Minnesota, being ~d/y sworn, says on the /,04x day of ~,, 2002, she seryed tha attached list of persons _to have an interest in the ~ ~ ~')~ ~~'" "1-"~ , by ~ailing to them a COl:}ylthereof, enclosed in an ~avelope, postage(~repaid, and be depositing same in the post office at Prior Lake, Minnesota, the last known address of the parties. Subscribed and sworn to be this ~ day of ,2000. NOTARY PUBLIC L:kl)Elrr WORK~BLANK.FRiVlXMAILAFFD. D0C /. IST' C~CL£ Z AOO'N HILLS OAKS 2NO AOD'N ~ · QUILO? · JAMES A TERCERO 5630 LUTHER DR PRIOR LAKE MN 55372 ST PAULS LUTI-IERAN CHURCH 5634 LUTHER DT PRIOR LAKE MN 55372 ESTHER STANKOVICH 5512 CANDY COVE TRL SE PRIOR LAKE MN 55372 SAMUEL B III BRONSTIEN JACQUELIN L BRONSTIEN 5524 CANDY COVE TRL SE PRIOR LAKE MN 55372 SHELLEY G & PATRICIA E HINES 5540 CANDY COVE TRL SE PRIOR LAKE MN 55372 ARTHUR A $CHOOT 5562 CANDY COVE TRL SE PRIOR LAKE MN 55372 DALE E & SUSAN A BRAI)DY 5572 CANDY COVE TRL SE PRIOR LAKE MN 55372 ELMER W CLARKE 16280 PARK AVE SE PRIOR LAKE MN 55372 CHARLES W CLARKE 16280 PARK AVE E PRIOR LAKE MN 55372 DANIEL DAUFFENBACH 15402 FORSYTHE RD SE PRIOR LAKE MN 55372 ROBERT W & MABEL R DUTTON 15414 FORSYTI'IE AVE PRIOR LAKE MN 55372 THOMAS & JOYCE CUNNINGHAM 15426 FORSYTHE RD PRIOR LAKE MN 55372 ANDREW J HOLLAND, III 15438 FORSYTI-IE RD SE PRIOR LAKE MN 55372 BRADFORD T & SI-IERREL ROTHNEM 5500 WOODLAWN CI?. SE PRIOR LAKE MN 55372 BRUCE L & DEBBIE K THOMAS 5547 CANDY COVE TRL SE PRIOR LAKE MN 55372 NEW ABSTRACTS CONTINUATIONS CLOSING SERVICE REGISTERED PROPERTY ABSTRACTS T~TLE iNSURANCE RECORDING SERVICE SCOTT COUNTY ABSTRACT AND TITLE, INC. 223 HOLMES STREET, P.O. BOX 300 SHAKOPEE, MINNESOTA 55379 DAVID E. MOONEN Phone: (952) 445-6246 Fax: (952) 445-0229 February 7, 2002 Huemoeller & Bates 16670 Franklin Trail Prior Lake, MN 55379 Attn: Allison Gontarek To Whom it May Concern: According to the 2002 tax records in the Scott County Treasurer's Office, the following persons listed on Exhibit "A" are the owners of the property which lies within 350 feet of the following described property: Lot 31, Candy Cove Park, Scott County, Minnesota. President Scott County Abstract & Title, Inc. MEMBER MINNESOTA LAND TITLE ASSOCIATION AGENT FOR CHICAGO TITLE INSURANCE COMPANY 16200 ICE OF A PUBLIC HEARING TO CONSIDER THE FOLLOWING: AN APPEAL TO THE DECISION OF THE PLANNING COMMISSION TO APPROVE VARIANCES TO TOP OF BLUFF SETBACK, FRONT YARD SETBACK, LOT WIDTH AND DRIVEWAY WIDTH AT THE FRONT PROPERTY LINE FOR THE CONSTRUCTION OF A FUTURE SINGLE FAMILY DWELLING ON PROPERTY LOCATED IN THE R-1 (LOW DENSITY RESIDENTIAL) DISTRICT AND THE SD (SHORELINE OVERLAY) DISTRICT IDENTIFIED AS 5584 CANDY COVE TRAIL. You are hereby notified that the Prior Lake City Council will hold a public hearing at Prior Lake Fire Station #1, located at 16776 Fish Point Road SE (Southwest of the intersection of C.R. 21 and Fish Point Road), on: Monday, May 20, 2002 at '/:30 p.m. or as soon thereafter as possible. APPELLANTS: Dale and Susan Braddy 5572 Candy Cove Trail Prior Lake, MN 55372 SUBJECT SITE: 5584 Candy Cove Trail, legally described as Lot 31, Candy Cove Park REQUEST: The appellants are appealing the decision of the Planning Commission to approve variances to the top of bluff setback, the front yard setback, lot width and driveway width at the front lot line to allow the construction of a single-family home with attached garage on the vacant lot located at 5584 Candy Cove Trail. If you are interested in this issue, you should attend the hearing. Questions related to this hearing should be directed to the Prior Lake Planning Department by calling 952-447- 4230 between the hours of 8:00 a.m. and 4:30 p.m. Monday through Friday. The City Council will accept oral and/or written comments. Oral or written comments should relate to how the proposed construction and requested variances are or are not consistent with the hardship criteria. Prepared this 30th day of April, 2002. Jane Kansier City of Prior Lake To be published in the Prior Lake American on May 4, 2002. L:\02FILES\02appeal\toohey appeal\publish note. DOC l Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (952) 447-4230 / Fax (952) 447-4245 ^N mV^L OPPORTUN~T~ EMPLOYER Z ~ 0 ' n, ', ~0~ ~ (n 0 , ,--z~ I-- /z o I, z~ '-" u. / /w ~ Oo I, eSo / - /~-m~ - m ~"3 /~ 0,0 ~' Z Z '' ~{ .,,,,'~- t /~,,,~"'; '".~ ~ i )/ ,~ < m / |z zz i ,Z 0 >/ ,q~oooJ J ,'-', ,-',lQ, :3 I-- I.- I-- · 51 ~/,~ : ~;I z zlz ~1~> > '~l :~ :~/:~ ,t > > :"l w w/w )i 0 ~ 0 >- ~" ~l ~ ~/~ -I >- o >- 1:3 0 ,,.,i LLI U.I/UJ ;I Z ~ Z zz ~J '5:5/5 ,'l w,,,uw ~lJ U.I W '~ ~1 ~/~ )1 o oo ~J ' :5:51:5 .~1 i ~J OOJO - >' U.I >' >' ~1 o oio 0 000 ti '~. :3 ~.'~ itu w wlm ~u u. oc _~ 9l oo-olc -gl o o o~. · :1 ~:~.IE ~:l · · ~< / w WlU wJ .> r~ mj~ ..i .J ..~ '"'1 ~ z zli LUJ w w J Z ' I- Z i, Il / // 1/ ~- I-Il i qWl o all Jl'%l 0 ~ ~-Ii I~1