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HomeMy WebLinkAbout03-131 McCoy Appeal I , i I I ~"~ '_-i..' .' '~'ll \/\~.\: ,., li.'< 71'- .J. \' ,( ( ~\ ''1 " 'tco; ~~ u II. ". ;rl !.;J. i , I I I }'-\ ,'h :t..~ lL ~~~ '.y ,-.. ,'. 7' ? >!I 'j, _~ I.. ,y: ".~l ;' ~ \.'f" .' (~ .~ ~\;;: :~ f \ ,ii-V .,. ;/ ~, 1- ".~' -'\ ~;" ..;. .. /, ...../ . V -' ',~, if "" Ie ~,.; .;. ~-~ - " HUE MOELLER, BATES & GONTAREK PLC ATTORNEYS AT LAW 16670 FRANKLIN TRAIL P.O. BOX 67 PRIOR LAKE, MINNESOTA 55372 (952) 447-2131 Fax: (952) 447-5628 Writer's email address:idbuv.oriorlakelaw.com __--_'.- ._,... 0"___" -_; If-\ >~-~ i: l;'~~" ~.' \1 \ \ \ I \ V'I I ( fIB 6_ \, ,h\ '. i ;:1 \U~: H~' I JAMES D. BATES ALLISON 1. GONT AREK BRYCE D. HUEMOELLER February 5, 2004 Ms. Cynthia Kirchoff City of Prior Lake 16200 Eagle Creek Avenue Prior Lake, MN 55372 RE: McCoy Agreement with City and Council Resolution 03-209 Dear Cindy: Enclosed please find the original agreement between the City and the McCoys, and the certified copy of the council resolution reversing the planning commission's denial of the variance application, which have been recorded as document numbers 641186 and 641187 in the office of the Scott County Recorder. Sincerely, ~~. James D. Bates JDB:bj Enclosures cc: Tim and Jane McCoy ~ Doc. No. A 641187 OFFICE OF THE COUNTY RECORDER SCOTT COUNTY, MINNESOTA Certified Rled and/or Recorded on 01-09-2004 at 11 :00 Receipt:347668 x\1~~,~.C~ P.t> . B-olt1 ~~ Pat Boeckman, County Recorder 01 Fee: $20.00 STATE OF MINNESOTA) )ss. COUNTY OF SCOTT ) The undersigned, duly qualified and Planning Secretary of the City of Prior Lake, hereby certifies the attached hereto is the original true and correct copy of RESOLUTION 03-209 RESOLUTION OF THE PRIOR LAKE CITY COUNCIL REVERSING THE PLANNING COMMISSION'S DECISION AND APPROVING A 10 FOOT VARIANCE FROM THE REQUIRED 15 FOOT REAR YARD SETBACK FOR THE CONSTRUCTION OF A DECK ADDITION ON PROPERTY ZONED PUD (PLANNED UNIT DEVELOPMENT) AND SD (SHORELINE OVERLAY) AND LOCATED AT 2830 FOX RUN NW #03-131 Tim McCoy 25-297-007-0 CotUiU~ ~ClU ~ ( Connie Carlson City of Prior Lake Dated this 29th day of December, 2003 I ,"', J . /"1" .......... .. /.- .' r; (City Seal) ,~,"\' '/ ~. -," -v ' -...~...~ . ,. ~ .~. fJ ." ,T ~ 1:ldeptWorklblankfnnltruecopy.doc 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 RESOLUTION 03-209 RESOLUTION OF THE PRIOR LAKE CITY COUNCIL REVERSING THE PLANNING COMMISSION'S DECISION AND APPROVING A 10 FOOT VARIANCE FROM THE REQUIRED 15 FOOT REAR YARD SETBACK FOR THE CONSTRUCTION OF A DECK ADDITION ON PROPERTY ZONED PUD (PLANNED UNIT DEVELOPMENT) AND SD (SHORELINE OVERLAY) AND LOCATED AT 2830 FOX RUN NW MOTION BY: ~IESKA SECOND BY: LEMAIR WHEREAS, Tim and Jane McCoy applied for Variances for the construction of a deck addition as shown on Exhibit A on property zoned PUD (Planned Unit Development) and SO (Shoreland) Districts and located at 2830 Fox Run NW, Prior Lake MN, and legally described as follows: Lot 1, Block 2, The Wilds, Scott County, Minnesota; and . WHEREAS The Planning Commission reviewed the application for rear and side yard setback Variances as contained in Case File 03-122, and held a hearing thereon October 27, 2003; and WHEREAS, The Planning Commission concluded the Variance requests did not meet the hardship criteria and denied the requests; and WHEREAS, James Bates, on behalf of Tim and Jane McCoy, appealed the decision of the Planning Commission in accordance with Section 1109.400 of the City Code on October 28, 2003; and WHEREAS, The City Council reviewed the appeal of the Planning Commission's decision, and the information contained in Case File 03-122 and Case File 03-131, and held a hearing thereon on December 1, 2003. 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 finds that the requested rear yard setback Variance meets the criteria for granting Variances set forth in Section 1108.400 of the City Code, and that the appellants have set forth adequate reasons for granting a rear yard setback Variance. 3) The City Council determined that the Planning Commission's decision denying the requested Variances. should reversed in part, and that a 10 foot rear yard setback Variance should be approved. www.cityofpriorlake.com 1.\,"''''..1....[;\.1.0. .."''''\Z~.Jv" - rCl~'=' I Phone 952.447.4230 / Fax 952.447.4245 ..l,~~,'"-"':."';;",,,':~,'~~,~-'1i.......,".c";;';:~~,j'~'~>~..'Z,,.'.',.;.,"- ~.,.'_.;.,:. .~ .;.'."~,,,.....' ".i",""_.:.'.l-, ._\...:..-.....~__. ,..,,,' '~'.,. 4) The City Council makes the following findings: a. James Bates, counsel for Tim and Jane McCoy, appealed the decision of the Planning Commission in accordance with Section 1109.400 of the City Code on October 28,2003. b. The City Council reviewed the appeal of the Planning Commission's decision, and the information contained in Case File 03-122 and Case File 03-131, and held a hearing thereon on December 1, 2003. c. The City Council determined that the McCoy residence is within a PUD. d. The City Council discussed and found that standards in a PUD are often reduced or modified because PUDs are only approved if the development has unique characteristics distinct from those set forth in the criteria. The City Council further found that requiring the McCoys to apply for a PUD amendment to permit second-story decks on homes that abut a golf course, would create an unnecessary burden and hardship on appellants. The City Council further found that it would prefer to handle decks abutting a golf course on a case-by-case basis rather than by an amendment within the Wilds PUD. e. The City Council heard testimony that when the McCoys purchased the residence it was in need of significant repair and was a blight to the neighbors. Neighbors of the McCoys testified that the McCoys have made significant improvements to the property. f. The City Council heard testimony that a large deck was attached to the home when the McCoys purchased it, that the deck and its supporting elements were rotting and created an actual hazard as Mr. McCoy testified that he fell through the deck. The City Council finds that these characteristics are unique to the property and are not a result of appellants' actions. g. The City Council determined that bulk standards are flexible within a Planned Unit Development, and the 5 foot rear yard setback allowed with the 10 foot Variance is consistent with the 5 foot minimum rear yard setback permitted for the "Villa Homes" in The Wilds. h. The City Council determined that the rear yard setback Variance would not unreasonably impact the character of the neighborhood because the proposed deck addition meets the 10 foot minimum required side yard setback. i. 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 variances on the Comprehensive Plan. j. The City Council rejects appellants' argument that a variance must be granted because the variance is necessary in order for appellants to make reasonable use of their property. This variance is based on the unique conditions relating to this specific property, and not because of what appellants define as a reasonable use of their property. Reasonableness is a finding for the City Council to make based on evidence in the record relating to the specific property for which a variance is being sought and based on the City Code variance criteria. 5) The contents of Planning Case File 03-122 and Planning Case File 03-131 are hereby entered into and made a part of the public record and the record of the decision for this case. , r:\resoluti\planres\2003\03-209.doc Page 2 ..~....,.,:UI.,"'" ....,. ~ .'. " :....",._loe,.,,Oj:..""~._'":.~.o!.....:,c..(oL-;.'t(;,.",,.,:.:..:.;;;..". ~ ..~~:..:~~,.......,,'...._.....;,.....>_~~.......'d.. . 6) Based upon the Findings set forth above, the City Council hereby overrules the decision of the Planning Commission and approves a 10 foot Variance from the 15 foot rear yard setback for the construction of a deck addition as shown on EXhibit A, with the following conditions: A. The resolution must be recorded by the applicant at Scott County within 60 days of adoption. Proof of recording, along with the acknowledged City Assent Form, shall be submitted to the Planning Department prior to the issuance of a building permit. B. The building permit is subject to all other applicable city, county, and state agency regulations. C. The applicant shall enter into a Private Use of Public Property Agreement with the City to allow for the encroachment into the 10 foot drainage and utility easement. This agreement shall include indemnification provisions. No building permit will be issued until Council has approved this agreement. Passed and adopted this 15th day of December 2003. Haugen Blomberg I LeMair I Petersen I Zieska YES NO X Haugen Blomberg X X LeMair X Petersen X Zieska {Seal} ~~j 15m. I City Man~~~Y r:\resoluti\planres\2003\03-209.doc Page 3 Doc. No. A 641186 OFFICE OF THE COUNTY RECORDER SCOTT COUNTY, MINNESOTA Certified Filed and/or Recorded on 01-09-2004 at 11:00 Receipt:347668 X "\UsW\~, ~~. b~ P.L>. Bf)O 111 ~~ WJl. ['nru . 155 ~ 1-:.1.. Pat Boeckll.an, County Recorder 01 Fee: $20.00 PERMIT AGREEMENT FOR J,>>!t1.V AJ'E USE OF PUBLIC PROPERTY THIS AGREEMENT is made and entered into this 5th day of January, 2004, by and between the CITY OF PRIOR LAKE, Minnesota, a municipal corporation (hereinafter referred to as "City"), and TIM AND JANE McCOY, (husband and wife) (hereinafter referred to as "Owners"). RECITALS WHEREAS, Owners are the fee owner ofa tract of land in Scott County, Minnesota, located at 2830 Fox Run NW, and legally described as follows: Lot 1, Block 2, The Wilds r'\. ~~ ~'(1l)l)1u ; and WHEREAS, the plat of The Wilds dedicated an easement for drainage and utility purposes to the City over the northerly 10 feet of Lot I, Block 2, The Wilds; and WHEREAS, the portion of the deck serving Owners' Property encroaches on said easement described on Exhibit A attached hereto (the encroached portion ofthe property hereinafter referred to as the "Permit Property"); and WHEREAS, Owners wish to use the Permit Property for a deck encroachment; and WHEREAS, Owners have requested the City to authorize continued use of the Permit Property for deck encroachment purposes; and H:\WP\Word Documents\McCoy.Private Use Agreement.doc 1 WHEREAS, such continued use of the Permit Property is not inconsistent with current use of the property by the City and the public; and WHEREAS, the City may in the future desire to use the Permit Property for other purposes which are not consistent with Owners' use of the Permit Property, and therefore the City intends to retain all of its right, title, and interest in the Permit Property; NOW, THEREFORE, the parties agree as follows: 1. Permit. The City Council has granted the Owners of Lot 1, Block 2, Wilds a variance, subject to certain conditions, to permit the construction of a deck on the rear of the house. The support members necessary to construct the deck will encroach on the City's drainage and utility easement. Owners acknowledge and agree that the placement and construction of the deck is at Owners' sole risk, and with full knowledge that the City may, upon notice as provided herein, require Owners' deck to be removed from the Permit Property at any future date, at Owners' sole expense. The Permit Property must be kept open to the public use at all items, and no fence or other obstruction may be placed on the Permit Property without the prior written approval of the City, which may be given or withheld in the sole discretion of the City. 2. Maintenance of Permit Prooertv: Modification. Owners shall maintain the Permit Property in good condition at all times, at their sole cost and expense. If Owners fail to do so, the City may cause the necessary repair or maintenance to be done at Owners' cost. If Owners fail to pay the City for such costs, the City may assess the costs against Owners' Property. Owners shall not make any modifications to the drainage and utility easement or otherwise modify the Permit Property without the prior written approval of the City, which may be given or withheld in the sole discretion of the City. 3. Termination. In the event the City desires to use the Permit Property for a purpose which is inconsistent with the Owners' deck encroachment, which determination will be in the City's sole discretion, or in the event Owners fail to comply with any requirement ofthis Agreement within sixty (60) days after receiving a notice from the City requesting such compliance, the City through its City Manager may terminate this Permit Agreement by giving thirty (30) days written notice of termination to Owner by certified mail at the following address: 2830 Fox Run NW, Prior Lake, MN 55372. Such notice may, at the City's option, require Owners to completely remove the deck from the Property legally described above within said thirty (30) day notice period, including all debris. If this Permit Agreement is terminated by the City as provided herein, Owners will be solely responsible for all costs and expenses related to removal of the deck on Owners' property. H:\WP\Word Documents\McCoy.Private Use Agreement.doc 2 If Owners fail to remove the deck as required by a proper notice of termination, the City may cause the removal to be done and the costs of such work shall be paid by Owner. If Owners fail to pay the City for any costs related to removal of the deck as provided for herein, the City may assess the costs against the Owners' Property. 3.1 License. The Owners hereby grant City an irrevocable license to enter upon Owners' property for the purpose of removing the deck, in the event Owners fail to remove the deck. 4. Consent to Snecial Assessment. Owners hereby acknowledge and consent to the City's right to specially assess any costs incurred by the City for any repair or maintenance performed pursuant to Paragraph 2 of this Permit Agreement, or any costs incurred by the City to remove Owners' deck from the Permit Property pursuant to Paragraph 3 of this Permit Agreement. Owners waive any right to protest or appeal any special assessment levied pursuant to this Permit Agreement. 5. Future DeveluUluent. Owners understand and acknowledge that the City may make improvements to the Permit Property in exercise of its easements rights for drainage and utility purposes at some future date and in the sole discretion of the City. In the event the City undertakes such development, and if this Permit Agreement is not terminated by the City as provided above, Owners agree to cooperate to the extent practicable to use its best efforts to accommodate City's use of the Permit Property for the purposes stated herein. However, Owners specifically acknowledge City has the absolute right to terminate this Agreement or otherwise require Owners to discontinue their encroachment on the Permit Property if deemed necessary by the City for the full exercise of its easement rights. 6. Indemnitv. Owners shall defend, indemnify, and hold harmless the City and its employees, subcontractors, attorneys, agents, and representatives from and against all claims, damages, losses, costs and expenses, including attorney's fees, which may be incurred by or asserted against the City or for which the City may be held liable, which arise out of or result from use of the permit Property for deck encroachment purposes, including but not limited to the maintenance, repair or removal of Owners' deck, except liability caused solely by the negligence of the City. 7. Insurance. As long as this Permit Agreement is in existence, Owners shall maintain a general liability insurance policy which provides coverage for the Permit Property for any damage to property of others or injuries to persons. Said insurance policy shall provide coverage on an occurrence basis in an amount no less than One Million Dollars ($1,000,000), and shall include contractual liability coverage to provide coverage for the indemnification provision in Paragraph 6 above. Said policy shall name the City as an additional insured, and shall contain a clause which provides that the insurer will not cancel, non-renew, or materially change the policy without first giving the H:\WP\Word Documents\McCoy.Private Use Agreement.doc 3 City thirty (30) days prior written notice. Owners shall provide the City with a Certificate of Insurance for said policy which specifically details the conditions of this Paragraph 6. 8. Waiver of Claims. Owners acknowledge City's easement rights on and under the Permit Property and knowingly waive any and all claims against the City related to Owners' use of the Permit Property, including but not limited to claims of abandonment, diminution in value, takings and contractual claims arising out of this Permit Agreement, except any claims which are the result of the sole negligence or willful misconduct of the City or its employees or agents. 9. Condition ofProoertv. Owners accept the Permit Property "as is" and the City makes no warranties regarding the conditions of the Permit Property or the suitability of Permit Property for Owners' purposes. 10. Bindinl! Effect. This Permit Agreement shall run with the land and shall be binding on and inure to the benefit of the parties hereto, their heirs, successors, or aSSIgns. 11. Whole Aereement: Modifications. This Permit Agreement contains all of the terms and conditions relating to the permit granted herein, and replaces any oral agreements or other negotiations between the parties relating to the permit. No modifications to this Permit Agreement shall be valid until they have been placed in writing and signed by all parties hereto. 12. Recordinl!. Owners shall cause this Permit Agreement to be recorded in the Office of the Scott County Recorder at their cost and expense. IN WITNESS WHEREOF, the parties have executed this Permit Agreement as of the date first above written. CITY OF PRIOR LAKE BY:~~ By: VA Fr~le , City Manager o ~,,_/-.....-=- L---/..---- '-.. ........- -,' - ---- ~#Sa~t H:\WP\Word Documents\McCoy.Private Use Agreement.doc 4 STATE OF MINNESOTA) )ss COUNTYOF Stoff ) The foregoi~& instrument was acknowledged before me this ~'" day of JJ11IJW . 20D!i, by Jack G. Haugen and Frank Boyles, The Mayor and City Manager, lespectively of the City of Prior Lake, on behalf of the Ci of Prior Lake thrOUgh. aUtho,rity granted by i~.Sp,~,~~~~..cil. ~ . ~ "'. ,~eoeoe$C_#-..e" ~ - ~ ~ ~~ Uy~,=~~!~~'~\~~"~5:~ -- ~.t'~'~;.........:'~/,,!....._;....::;.ec.~-'l~. ' STATE OF MINNESOTA) )ss COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this 5th day of January, 2004, by Tim B. McCoy, Sr. and Jane M. McCoy, husband and wife. ~~~ Notary'Public . JAMES D. BATES NOTAAY PUBliC . MINN~SOTA My Commission expires 1-31-2005 .. ... This instrument drafted by: Suesan Lea Pace Halleland, Lewis, Nilan, Sipkins & Johnson Pillsbury Center South, Suite 600 220 South Sixth Street Minneapolis, MN 55402-4501 (612) 573-2902 H:\WP\Word Documents\McCoy.Private Use Agreement.doc 5 Land Surveyors Planners ~\,'Valley,Surveying CO., RA. -. . (952) 447-2570 Suite 230 16670 FranklinTrail S.E. Prior Lake, Minnesota 55372 December 10, 2003 Description prepared for:, Tim McCoy 2830 Fox RunNW .. Lake,Mn 55372 Descriptio,n for the proposed deck encroachment area: . .. . '.An ~aserrienttoconstructa.n attached deck o~etand.'across the south 5.00 feetofthe .. 'north'lO.OO fe~(6fthe west lS~OO feet of the e~t 28.00f~efofLot 1, Block 2, THE '\YILDS~ Scott COlll1ty, Minnesota. . ."'. '. ..,.. . ." .... . I'" EXHIBIT A Resolution and Ylinutes , 63-/31 ;UL~ ~jU~ p-I- D?J c.L ~, [)3-;)()~ ~. ~J1-o) f&;;. ()3- 8-/0 {1uOttU UA.1 f~. f ~'fJ J~s~ 01J re /Uwl. I (S(J-" .. L:\TEMPLA TE\FILEINFO.DOC - City Council Meeting Minutes December 1 , 2003 - The Council took a brief recess. Consider Approval of an Appeal of the Planning Commission Denial of a Variance for the Construction of a Deck Addition 2830 Fox Run NW (Case File #03-131). Kirchoff: Reviewed the agenda item in connection with the staff report. Blombera: Asked for a definition of a .villa" style home. Kirchoff: According to the PUD, villa homes are single family attached or detached homes on smaller lots. On this home, there are no lower level patio doors. Blombera: Asked if the golf course will always be a golf course. Kirchoff: The golf course use can be changed through an application for amendment to the PUD by the owner and approval by the City Council. Petersen: Asked the size of the proposed deck. Kirchoff: Advised that the proposed deck is smaller than the old one, approximately 14'x20'. Pace: Clarified that the intended use of the City's Private Use of Public Property Agreement was not to prospectively allow construction within an easement, or a waiver of the City's right for infringement into an easement. LeMalr: Asked if there was ever a permit issued for the deck. Kirchoff: No permit was issued. The staff cannot tell when the original deck was constructed and has assumed that the deck was included after issuance of the certificate of occupancy since it was not included on the survey for the house. Mayor Haugen declared the public hearing open. Jim Bates (attorney for the applicanQ: Advised that the proposed deck does not protrude further than the initial deck. Also advised that the lot size is .46 acres. Submitted a letter dated November 28, 2003 from him to the City Council on his interpretation of the state standard for variances. Further noted that State statute allows City's the variance tool to provide relief for property owners from the strict application of the ordinance. Noted that the McCoys bought the property with the initial non-conforming, illegal deck and that the excessive impervious surface existed at the time of the issuance of the Certificate of Occupancy. Clarified that the door faces to the rear of the house even though it is on the far east side of the home. There is no significant impact upon adjacent neighbors and indicated that the golf course representatives do not oppose the variance request. Believed these circumstances provide a practical difficulty in achieving a reasonable use of the home. Petersen: Advised that the old detk looks much less than 14 feet. Bates: Advised that he has seen the old footings. Blomberq: Asked for clarification of Mr. Bates reference to a 5 foot setback. Bates: Explained that at the Planning Commission meeting, a 1994 City Council resolution showed a rear yard setback for properties adjacent to golf course fairways was changed. The setback for the villas was 5 feet, and for 1/3 and % acre sites 8 City Council Meeting Minutes December 1 , 2003 at 15 feet. The plats for the villas do not show drainage and utility easements at the backs of those lots. The single family homes sites provide a 10 foot utility and drainage easements. It appears that a standard was established as a matter of policy that rear yard setbacks adjacent to the golf course could be as little as 5 feet. Also believed that the encroachment of the deck into the easement could be addressed through a Private Use of Public Property Agreement, Blomberq: Asked if a smaller deck is an option in order to accommodate the easement. Bates: Advised that if the easement is accommodated, the actual width of the deck at one point is 5 feet. Tim Mceo\{ (2830 Fox Run): Advised that the deck existed when he bought the house and replacement was required due to its condition. The County advised him that as long as there is no building, repair was permitted. Did not believe that reducing the deck size to 5 feet at one point would accommodate reasonable use. Created a nice house from a neighborhood eyesore. Believed not having a deck is a hardship, LeMalr: Asked about the condition of the footings for the initial deck. McCov: Advised that the footings that were removed were only 18 inches deep and the deck was sloping toward the house. Being "in the trade" he proceeded to remove the bad footings. Not all of the footings have been removed. MOTION BY ZIESKA, SECOND BY LEMAIR TO CLOSE THE PUBLIC HEARING. VOTE: Ayes by Haugen, Blomberg, Petersen, Zieska and LeMair, the motion carried. Blombera: Asked for clarification as to the setbacks. Commented that for properties abutting open space she could justify a variance, but there is an issue with the easement along the rear property. Because of the easement, she will support the Planning Commission decision. Petersen: Believed this issue is similar to the last variance application in that the property abuts the open space of the golf course. The easement may never be used. Supported the variance. Zieska: Asked if vacating the easement is a possibility. Kirchoff: The easement is being used for drainage purposes. Zleska: Because the property is located in a PUD, there is some flexibility. He can live with the 5 foot rear yard setback, but would like to see the side yard encroachment eliminated. Also believed the Private Use of Public Property Agreement can be used with respect to the rear easement. LeMalr: Agreed with Councilmember Zieska and that a reasonable solution can be found so that the property owner can accommodate his deck. Hauaen: Agreed with Councilmember Zieska. 8lombera: Asked if a deck size of 12 foot x 16.5 feet accommodates the door. Zieska: It would with some creative design. Asked Mr. McCoy if maintaining the side yard setback could be accommodated. MeCo\{: Advised that the survey has been altered somewhat and there is very little room to accommodate the door. Blomberq: Asked why the Council is considering allowing the rear yard variance and not a side yard. 9 ~~__."..w ...,......_................:....i.o.~..,-.....-.....~,.~..;,.......................~~. ...-. ' ..,.......,....,~._..lo.&~..... ..."".._......a.~................, -~_:"~".-..I." . City Council Meeting Minutes December 1, 2003 Zleska: The rationale is that the side yard infringes upon a neighbor and the rear yard only infringes upon the golf course open space. Pace: Advised that any infringement into an easement requires a Private Use of Public Property Agreement and requires indemnification. MOTION BY PETERSEN, SECOND BY LEMAIR, TO DIRECT STAFF PREPARE A RESOLUTION OVERTURNING THE PLANNING COMMISSION DECISION AND GRANTING A VARIANCE INTO THE REAR YARD SETBACK TO ALLOW A FIVE FOOT SETBACK WITH NO VARIANCE TO THE SIDE YARD SETBACK AND REQUIRING A PRIVA TE USE OF PUBLIC PROPERTY AGREEMENT INDEMNIFYING THE CITY. VOTE: Ayes by Haugen, Petersen, Zieska and LeMair, Nay by Blomberg, the motion carried. PRESENTATIONS: Presentation by Norex Corporation Regarding Their New Facility Ron Haberkorn: Discussed how happy Norex is with its new facility and thanked the City for its support. Noted that as a result of support in Prior Lake, they decided to maintain their old building and re-lease the space to new Prior Lake businesses. Advised that their commercial construction and taxes will contribute to the on-going betterment of Prior Lake. Viewed a brief video tape of the new facility. Advised there are 62 offices in the building all with outside views. Publicly thanked Bob Barsness of Prior Lake State Bank, Mayor Haugen and the City Council, City staff for all their help and patience, and the citizens and people of Prior Lake. As a token of appreciation, presented Mayor Haugen with a $20,000 contribution toward a downtown f~untain/aerator and landscaping for the business park entry monuments. Hauaen: Thanked Mr. Haberkorn, his family, and the Norex team for their contributions to the City. It is important to invest in our current businesses in order to attract new ones. OLD BUSINESS Consider Approval of a Resolution Approving the Final Planned Unit Development Plan and PUD Development Contract and Approval of a Resolution Approving the Final Plat and Development Contract for Crystal Bay. J(ansler: Reviewed the agenda item in connection with the staff report. Blombera: Asked if all the decks are where they are supposed to be. Kansler: Advised that all the townhomes have decks and meet the required setbacks. MOTION BY PETERSEN, SECOND BY BLOMBERG, TO APPROVE RESOLUTION 03.203 APPROVING THE PLANNED UNIT DEVELOPMENT FINAL PLAN TO BE KNOWN AS CRYSTAL BAY. VOTE: Ayes by Haugen, Blomberg, Petersen, Zieska and LeMair, the motion carried. MOTION BY ZIESKA, SECOND BY LEMAIR, TO APPROVE RESOLUTION 03.204 APPROVING THE FINAL PLAT AND DEVELOPMENT CONTRACT FO~ CRYSTAL BAY TOWNHOMES. VOTE: Ayes by Haugen, Blomberg, Petersen, Zieska and LeMair, the motion carried. .. . Hauaen: Commented that the.re were a number of issues addressed for this development during numerous neighborhood meetings. Pointed out that there is always some emotion involved when change takes place. Complimented the developer 10 ._.....<<...""~ ".,~.-.... .~W'" _.._._---..-_~.__..._. STATE OF MINNESOTA) )ss. COUNTY OF SCOTT ) The undersigned, duly qualified and Planning Secretary of the City of Prior Lake, hereby certifies the attached hereto is the original true and correct copy of RESOLUTION 03-209 RESOLUTION OF THE PRIOR LAKE CITY COUNCIL REVERSING THE PLANNING COMMISSION'S DECISION AND APPROVING A 10 FOOT VARIANCE FROM THE REQUIRED 15 FOOT REAR YARD SETBACK FOR THE CONSTRUCTION OF A DECK ADDITION ON PROPERTY ZONED PUD (PLANNED UNIT DEVELOPMENT) AND SO (SHORELINE OVERLAY) AND LOCATED AT 2830 FOX RUN NW #03-131 Tim McCoy 25-297 -007-0 . Co t0tiU € (!au C1wr Connie Carlson ( -- City of Prior Lake Dated this 29th day of December, 2003 (City Seal) . 1:ldeptworklblankfnnltruecopy.doc 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 RESOLUTION 03-209 RESOLUTION OF THE PRIOR LAKE CITY COUNCIL REVERSING THE PLANNING COMMISSION'S DECISION AND APPROVING A 10 FOOT VARIANCE FROM THE REQUIRED 15 FOOT REAR YARD SETBACK FOR THE CONSTRUCTION OF A DECK ADDITION ON PROPERTY ZONED PUD (PLANNED UNIT DEVELOPMENT) AND SO (SHORELINE OVERLAY) AND LOCATED AT 2830 FOX RUN NW MOTION BY: ZIESKA SECOND BY: LEMAIR WHEREAS, Tim and Jane McCoy applied for Variances for the construction of a deck addition as shown on Exhibit A on property zoned PUD (Planned Unit Development) and SD (Shoreland) Districts and located at 2830 Fox Run NW, Prior Lake MN, and legally described as follows: Lot 1, Block 2, The Wilds, Scott County, Minnesota; and . WHEREAS The Planning Commission reviewed the application for rear and side yard setback Variances as contained in Case File 03-122, and held a hearing thereon October 27, 2003; and WHEREAS, The Planning Commission concluded the Variance requests did not meet the hardship criteria and denied the requests; and WHEREAS, James Bates, on behalf of Tim and Jane McCoy, appealed the decision of the Planning Commission in accordance with Section 1109.400 of the City Code on October 28, 2003; and WHEREAS, The City Council reviewed the appeal of the Planning Commission's decision, and the information contained in Case File 03-122 and Case File 03-131, and held a hearing thereon on December 1, 2003. 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 finds that the requested rear yard setback Variance meets the criteria for granting Variances set forth in Section 1108.400 of the City Code, and that the appellants have set forth adequate reasons for granting a rear yard setback Variance. 3) The City Council determined that the Planning Commission's decision denying the requested Variances should reversed in part, and that a 10 foot rear yard setback Variance should be approved. www.cityofpriorlake.com I:U ,=,o:.UIULI\t-'Ic:l11l ,=-,.:"~vv~\v~;.~u", ;- Q~\7; I Phone 952.447.4230 / Fax 952.447.4245 4) The City Council makes the following findings: a. James Bates, counsel for Tim and Jane McCoy, appealed the decision of the Planning Commission in accordance with Section 1109.400 of the City Code on October 28, 2003. b. The City Council reviewed the appeal of the Planning Commission's decision, and the information contained in Case File 03-122 and Case File 03-131, and held a hearing thereon on December 1, 2003. c. The City Council determined that the McCoy residence is within a PUD. d. The City Council discussed and found that standards in a PUD are often reduced or modified because PUDs are only approved if the development has unique characteristics distinct from those set forth in the criteria. The City Council further found that requiring the McCoys to apply for a PUD amendment to permit second-story decks on homes that abut a golf course, would create an unnecessary burden and hardship on appellants. The City Council further found that it would prefer to handle decks abutting a golf course on a case-by-case basis rather than by an amendment within the Wilds PUD. e. The City Council heard testimony that when the McCoys purchased the residence it was in need of significant repair and was a blight to the neighbors. Neighbors of the McCoys testified that the McCoys have made significant improvements to the property. f. The City Council heard testimony that a large deck was attached to the home when the McCoys purchased it, that the deck and its supporting elements were rotting and created an actual hazard as Mr. McCoy testified that he fell through the deck. The City Council finds that these characteristics are unique to the property and are not a result of appellants' actions. g. The City Council determined that bulk standards are flexible within a Planned Unit Development, and the 5 foot rear yard setback allowed with the 10 foot Variance is consistent with the 5 foot minimum rear yard setback permitted for the "Villa Homes" in The Wilds. h. The City Council determined that the rear yard setback Variance would not unreasonably impact the character of the neighborhood because the proposed deck addition meets the 10 foot minimum required side yard setback. i. 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 andair, danger of fire, risk to the public safety, the effect on property values in the surrounding area and the effect of the proposed variances on the Comprehensive Plan. j. The City Council rejects appellants' argument that a variance must be granted because the variance is necessary in order for appellants to make reasonable use of their property. This variance is based on the unique conditions relating to this specific property, and not because of what appellants define as a reasonable use of their property. Reasonableness is a finding for the City Council to make based on evidence in the record relating to the specific property for which a variance is being sought and based on the City Code variance criteria. 5) The contents of Planning Case File 03-122 and Planning Case File 03-131 are hereby entered into and made a part of the public record and the record of the decision for this case. r:\resoluti\planres\2003\03-209.doc Page 2 6) Based upon the Findings set forth above, the City Council hereby overrules the decision of the Planning Commission and approves a 10 foot Variance from the 15 foot rear yard setback for the construction of a deck addition as shown on Exhibit A, with the following conditions: A. The resolution must be recorded by the applicant at Scott County within 60 days of adoption. Proof of recording, along with the acknowledged City Assent Form, shall be submitted to the Planning Department prior to the issuance of a building permit. B. The building permit is subject to all other applicable city, county, and state agency regulations. C. The applicant shall enter into a Private Use of Public Property Agreement with the City to allow for the encroachment into the 10 foot drainage and utility easement. This agreement shall include indemnification provisions. No building permit will be issued until Council has approved this agreement. Passed and adopted this 15th day of December 2003. Haugen Blomberg LeMair Petersen Zieska YES X NO X X X Haugen Blomberg LeMair Petersen Zieska X {Seal} ci:ddl r:\resoluti\planres\2003\03-209.doc Page 3 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 RESOLUTION 04-05 RESOLUTION OF THE PRIOR LAKE CITY COUNCIL APPROVING A PRIVATE USE OF PUBLIC PROPERTY AGREEMENT FOR PROPERTY LOCATED AT 2830 FOX RUN NW MOTION BY: LEMAIR SECOND BY: PETERSEN WHEREAS, The City Council approved a 10 rear yard setback Variance for Tim and Jane McCoy for the construction of a deck addition on property located at 2830 Fox Run NW, Prior Lake MN, and legally described as follows: Lot 1, Block 2, The Wilds, Scott County, Minnesota; and WHEREAS The proposed deck addition encroaches 5 feet into the rear yard 10 foot drainage and utility easement; and WHEREAS, The City Council approved the Variance with the condition that the applicant enter into a Private Us,? of Pubic Property Agreement with the City because of the easement encroachment; and WHEREAS, The City Council approved the Private Use of Public Property Agreement thereon on January 5, 2004. 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 Mayor and City Council are hereby authorized to execute the Private Use of Public Property Agreement on behalf of the City. Passed and adopted this 5th day of January 2004. I Haugen Blomberg LeMair I Petersen I Zieska YES X NO {Seal} Haugen Blomberg X LeMair X Petersen Absent Zieska Absent Frank::f6!::er X r:\resoluti\planres\2004\04-05.doc www.cityofpriorlake.com Page 1 Phone 952.447.4230 / Fax 952.447.4245 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 RESOLUTION 03-210 RESOLUTION OF THE PRIOR LAKE CITY COUNCIL UPHOLDING THE PLANNING COMMISSION'S DECISION TO DENY A 3.3 FOOT SIDE YARD SETBACK VARIANCE FOR THE CONSTRUCTION OF A DECK ADDITION ON PROPERTY ZONED PUD(PLANNED UNIT DEVELOPMENT) AND SO (SHORELINE OVERLAY) AND LOCATED AT 2830 FOX RUN NW MOTION BY: ZIESKA SECOND BY: LEMAIR WHEREAS, Tim and Jane McCoy applied for Variances for the construction of a deck addition as shown on Exhibit A on property zoned PUD (Planned Unit Development) and SD (Shoreland) Districts and located at 2830 Fox Run NW, Prior Lake MN, and legally described as follows: Lot 1, Block 2, The Wilds, Scott County, Minnesota; and WHEREAS The Planning Commission reviewed the application for rear and side yard setback Variances as contained in Case File 03-122, and held a hearing thereon October 27, 2003; and WHEREAS, The Planning Commission concluded the Variance requests did not meet the hardship criteria and denied the requests; and WHEREAS, James Bates, counsel for Tim and Jane McCoy, appealed the decision of the Planning Commission in accordance with Section 1109.400 of the City Code on October 28, 2003; and WHEREAS, The City Council reviewed the appeal of the Planning Commission's decision, and the information contained in Case File 03-122 and Case File 03-131, and held a hearing thereon on December 1, 2003. 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 finds that the requested side yard setback Variance does not meet the criteria for granting Variances set forth in Section 1108.400 of the City Code, and that the appellant has not set forth adequate reasons for granting a side yard setback Variance. 3) The City Council determined that the Planning Commission's decision denying the requested Variances should be upheld. 4) The City Council makes the following findings: r:\resoluti\planres\2003\03-210.doc www.cityofprior!ake.com Page 1 Phone 952.447.4230 / Fax 952.447.4245 a. James Bates, counsel for Tim and Jane McCoy, appealed the decision of the Planning Commission in accordance with Section 1109.400 of the City Code on October 28, 2003. b. The City Council reviewed the appeal of the Planning Commission's decision, and the information contained in Case File 03-122 and Case File 03-131, and held a hearing thereon on December 1, 2003. c. 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. d. The granting of the side yard setback Variance is not necessary for the preservation and enjoyment of a substantial property right of the owner. e. The purpose of the Zoning Ordinance is to "prevent overcrowding of land and undue concentration of structures and population by regulating the use of land and buildings and the bulk of buildings in relation to the land surrounding them." This purpose is implemented through required minimum yard setbacks. A Variance to reduce the required minimum side yard setback without a demonstrable hardship or difficulty is inconsistent with the purpose of the Zoning Ordinance. 5) The contents of Planning Case File 03-122 and Planning Case File 03-131 are hereby entered into and made a part of the public record and the record of the decision for this case. 6) Based upon the Findings set forth above, the City Council hereby upholds the decision of the Planning Commission denying a 3.3 foot side yard setback Variance as shown on Exhibit A. Passed and adopted this 15th day of December 2003. I Haugen I Blomberg LeMair Petersen Zieska YES X X X X X NO {Seal} Haugen Blomberg LeMair Petersen Zieska :*1!d- r:\resoluti\planres\2003\03-210.doc Page 2 PERMIT AGREEMENT FOR PRIVATE USE OF PUBLIC PROPERTY THIS AGREEMENT is made and entered into this 5th day of January, 2004, by and between the CITY OF PRIOR LAKE, Minnesota, a municipal corporation (hereinafter referred to as "City"), and TIM AND JANE McCOY, (husband and wife) (hereinafter referred to as "Owners"). RECITALS WHEREAS, Owners are the fee owner of a tract of land in Scott County, Minnesota, located at 2830 Fox Run NW, and legally described as follows: Lot 1, Block 2, The Wilds ; and WHEREAS, the plat of The Wilds dedicated an easement for drainage and utility purposes to the City over the northerly 10 feet of Lot 1, Block 2, The Wilds; and WHEREAS, the portion of the deck serving Owners' Property encroaches on said easement described on Exhibit A attached hereto (the encroached portion of the property hereinafter referred to as the "Permit Property"); and WHEREAS, Owners wish to use the Permit Property for a deck encroachment; and WHEREAS, Owners have requested the City to authorize continued use of the Permit Property for deck encroachment purposes; and H:\WP\Word Documents\McCoy.Private Use Agreement.doc I WHEREAS, such continued use ofthe Permit Property is not inconsistent with current use of the property by the City and the public; and WHEREAS, the City may in the future desire to use the Permit Property for other purposes which are not consistent with Owners' use of the Permit Property, and therefore the City intends to retain all of its right, title, and interest in the Permit Property; NOW, THEREFORE, the parties agree as follows: 1. Permit. The City.Council has granted the Owners of Lot 1, Block 2, Wilds a variance, subject to certain conditions, to permit the construction of a deck on the rear of the house. The support members necessary to construct the deck will encroach on the City's drainage and utility easement. Owners acknowledge and agree that the placement and construction of the deck is at Owners' sole risk, and with full knowledge that the City may, upon notice as provided herein, require Owners' deck to be removed from the Permit Property at any future date, at Owners' sole expense. The Permit Property must be kept open to the public use at all items, and no fence or other obstruction may be placed on the Permit Property without the prior written approval ofthe City, which may be given or withheld in the sole discretion of the City. 2. Maintenance of Permit ProDertv: Modification. Owners shall maintain the Permit Property in good condition at all times, at their sole cost and expense. If Owners fail to do so, the City may cause the necessary repair or maintenance to be done at Owners' cost. If Owners fail to pay the City for such costs, the City may assess the costs against Owners' Property. Owners shall not make any modifications to the drainage and utility easement or otherwise modify the Permit Property without the prior written approval of the City, which may be given or withheld in the sole discretion of the City. 3. Termination. In the event the City desires to use the Permit Property for a purpose which is inconsistent with the Owners' deck encroachment, which determination will be in the City's sole discretion, or in the event Owners fail to comply with any requirement of this Agreement within sixty (60) days after receiving a notice from the City requesting such compliance, the City through its City Manager may terminate this Permit Agreement by giving thirty (30) days written notice of termination to Owner by certified mail at the following address: 2830 Fox Run NW, Prior Lake, MN 55372. Such notice may, at the City's option, require Owners to completely remove the deck from the Property legally described above within said thirty (30) day notice period, including all debris. If this Permit Agreement is terminated by the City as provided herein, Owners will be solely responsible for all costs and expenses related to removal of the deck on Owners' property. H:\WP\Word Documents\McCoy.Private Use Agreement.doc 2 WHEREAS, such continued use of the Permit Property is not inconsistent with current use of the property by the City and the public; and WHEREAS, the City may in the future desire to use the Permit Property for other purposes which are not consistent with Owners' use ofthe Permit Property, and therefore the City intends to retain all of its right, title, and interest in the Permit Property; NOW, THEREFORE, the parties agree as follows: 1. Permit. The City Council has granted the Owners of Lot 1, Block 2, Wilds a variance, subject to certain conditions, to permit the construction of a deck on the rear of the house. The support members necessary to construct the deck will encroach on the City's drainage and utility easement. Owners acknowledge and agree that the placement and construction of the deck is at Owners' sole risk, and with full knowledge that the City may, upon notice as provided herein, require Owners' deck to be removed from the Permit Property at any future date, at Owners' sole expense. The Permit Property must be kept open to the public use at all items, and no fence or other obstruction may be placed on the Permit Property without the prior written approval of the City, which may be given or withheld in the sole discretion of the City. 2. Maintenance of Permit Prooertv: Modification. Owners shall maintain the Permit Property in good condition at all times, at their sole cost and expense. If Owners fail to do so, the City may cause the necessary repair or maintenance to be done at Owners' cost. If Owners fail to pay the City for such costs, the City may assess the costs against Owners' Property. Owners shall not make any modifications to the drainage and utility easement or otherwise modify the Permit Property without the prior written approval of the City, which may be given or withheld in the sole discretion of the City. 3. Termination. In the event the City desires to use the Permit Property for a purpose which is inconsistent with the Owners' deck encroachment, which determination will be in the City's sole discretion, or in the event Owners fail to comply with any requirement of this Agreement within sixty (60) days after receiving a notice from the City requesting such compliance, the City through its City Manager may terminate this Permit Agreement by giving thirty (30) days written notice oftermination to Owner by certified mail at the following address: 2830 Fox Run NW, Prior Lake, MN 55372. Such notice may, at the City's option, require Owners to completely remove the deck from the Property legally described above within said thirty (30) day notice period, including all debris. If this Permit Agreement is terminated by the City as provided herein, Owners will be solely responsible for all costs and expenses related to removal of the deck on Owners' property. H:\WP\Word Documents\McCoy.Private Use Agreement.doc 2 If Owners fail to remove the deck as required by a proper notice of termination, the City may cause the removal to be done and the costs of such work shall be paid by Owner. If Owners fail to pay the City for any costs related to removal of the deck as provided for herein, the City may assess the costs against the Owners' Property. 3.1 License. The Owners hereby grant City an irrevocable license to enter upon Owners' property for the purpose of removing the deck, in the event Owners fail to remove the deck. 4. Consent to Snecial Assessment. Owners hereby acknowledge and consent to the City's right to specially assess any costs incurred by the City for any repair or maintenance performed pursuant to Paragraph 2 of this Permit Agreement, or any costs incurred by the City to remove Owners' deck from the Permit Property pursuant to 'Paragraph 3 of this Permit Agreement. Owners waive any right to protest or appeal any special assessment levied pursuant to this Permit Agreement. 5. Future Develonment. Owners understand and acknowledge that the City may make improvements to the Permit Property in exercise of its easements rights for drainage and utility purposes at some future date and in the sole discretion of the City. In the event the City undertakes such development, and if this Permit Agreement is not terminated by the City as provided above, Owners agree to cooperate to the extent practicable to use its best efforts to accommodate City's use of the Permit Property for the purposes stated herein. However, Owners specifically acknowledge City has the absolute right to terminate this Agreement or otherwise require Owners to discontinue their encroachment on the Permit Property if deemed necessary by the City for the full exercise of its easement rights. 6. Indemnitv. Owners shall defend, indemnify, and hold harmless the City and its employees, subcontractors, attorneys, agents, and representatives from and against all claims, damages, losses, costs and expenses, including attorney's fees, which may be incurred by or asserted against the City or for which the City may be held liable, which arise out of or result from use of the permit Property for deck encroachment purposes, including but not limited to the maintenance, repair or removal of Owners' deck, except liability caused solely by the negligence of the City. 7. Insurance. As long as this Permit Agreement is in existence, Owners shall maintain a general liability insurance policy which provides coverage for the Permit Property for any damage to property of others or injuries to persons. Said insurance policy shall provide coverage on an occurrence basis in an amount no less than One Million Dollars ($1,000,000), and shall include contractual liability coverage to provide coverage for the indemnification provision in Paragraph 6 above. Said policy shall name the City as an additional insured, and shall contain a clause which provides that the insurer will not cancel, non-renew, or materially change the policy without first giving the H:\WP\Word Documents\McCoy.Private Use Agreement.doc 3 City thirty (30) days prior written notice. Owners shall provide the City with a Certificate of Insurance for said policy which specifically details the conditions of this Paragraph 6. 8. Waiver of Claims. Owners acknowledge City's easement rights on and under the Permit Property and knowingly waive any and all claims against the City related to Owners' use of the Permit Property, including but not limited to claims of abandonment, diminution in value, takings and contractual claims arising out of this Permit Agreement, except any claims which are the result of the sole negligence or willful misconduct of the City or its employees or agents. 9. Condition ofProoertv. Owners accept the Permit Property "as is" and the City makes no warranties regarding the conditions of the Permit Property or the suitability of Permit Property for Owners' purposes. 10. Bindimr Effect. This Permit Agreement shall run with the land and shall be binding on and inure to the benefit of the parties hereto, their heirs, successors, or aSSIgns. 11. Whole Al!reement: Modifications. This Permit Agreement contains all of the terms and conditions relating to the permit granted herein, and replaces any oral agreements or other negotiations between the parties relating to the permit. No modifications to this Permit Agreement shall be valid until they have been placed in writing and signed by all parties hereto. 12. Recordinl!. Owners shall cause this Permit Agreement to be recorded in the Office of the Scott County Recorder at their cost and expense. IN WITNESS WHEREOF, the parties have executed this Permit Agreement as of the date first above written. CITY OF PRIOR LAKE BY:~~ r 14 ~!/I Fr~le , City Manager c_ '-'- By: G/Yl tC~ . /.' . (j' .. ) 7DJ\.. .. H:\WP\Word Documents\McCoy.Private Use Agreement.doc 4 STATE OF MINNESOTA) )ss COUNTY OF Stoff ) The foregoin& instrument was acknowledged before me this 5'" day of JJ.I1L1V"v ' 20fJ!i., by Jack G. Haugen and Frank Boyles, The Mayor and City Manager, tespectively of the City of Prior Lake, on behalf of the Ci~ofPrior Lake thrOUg:~~::~its :~ CounciL / c/ It ':1 ~:!~ ~aT~'I'YX 'co 4~bliS . -~ y M) "\,, ' i' ---:-:21 ~-- - - STATE OF MINNESOTA) )ss COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this 5th day of January, 2004, by Tim B. McCoy, Sr. and Jane M. McCoy, hus~,and and~Wife. \) ~ \~~\- '--- \~\\i'~\ '_ l'~<~~~ JAMES D. BATES - NOTARY PUBLIC. MINNESOTA Notary'Public My Commission Expires 1-31-2005 ) " This instrument drafted by: Suesan Lea Pace Halleland, Lewis, Nilan, Sipkins & Johnson Pillsbury Center South, Suite 690 220 South Sixth Street Minneapolis, MN 55402-4501 (612) 573-2902 H:\WP\Word Documents\McCoy.Private Use Agreement.doc 5 Land Surveyors Planners ~ ~ .. Valley Surveying Co., RA. '\ ~ \ (952) 447-2570 Suite 230 16670 Franklin Trail S.E. Prior Lake, Minnesota 55372 December 10,2003 Description prepared for:, Tim McCoy 2830 Fox RunNW . Prior Lake, Mn 55372 Description for the proposed deck encroachment area: An easementtoconstrucJanattached deck over and across the south 5.00 feet of the north 10.00 feetofthe west 18.00 feetofthe east 28.00f~efofLot 1, Block 2, THE WILDS, Scott County, Minnesota. .' " I~ EXHIBIT A i~rRJ16 bn\ uW~ ~ 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 ASSENT OF APPLICANT File #03-131 As Approved by Resolution #03-209 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 Reauired. 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 Uoon 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 L:\03 Files\03 Appeals\03-131 McCoy\ASSENT.DOC www.cityofpriorlake.com 1 Phone 952.447.4230 / Fax 952.447.4245 revoked and canceled upon the occurrence of any of the following events: (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. 4. 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 ~ ~:~_~_~~QD~--'- \ - S' -C)'\ <=::.(--;;{. ~ ~ DATE ATUR PP~~ SIGNATURE OF g~"() 2830 Fox Run NW ADDRESS OF PROPERTY L:\03 Files\03 Appeals\03-131 McCoy\ASSENT.DOC 2 City Council Meeting Minutes DRAFT January 5. 2004 CONSENT AGENDA: (A) Consider Approval of Invoices to be Paid. (B) Consider Approval of Resolution 04-01 Approving a Conditional Use Permit to Allow the Outdoor Storage of School Buses on Property Located on Welcome Avenue. (C) Consider Approval of Resolution 04-02 Approving Payment to McCarthy Well Company for Professional Services to Repair Well NO.5. (D) Consider Approval of a Resolution Approving a Private Use of Public Property Agreement to Allow for the Encroachment of a Deck in a Rear Yard 10-Foot Drainage and Utility Easement (Case File 03-131 PC- McCoy). (E) Consider Approval of Resolution 04-03 Approving an Agreement Related to the Creation of a Transit Review Board and Planning Team for Scott County Communities. (F) Consider Approval of Resolution 04.Q4 Approving a Street Name Change for 141S1 Street in the Plat of Windsor Estates. BOYLES: Reviewed the Consent Agenda items. Blomberq: Requested removal of Item D. MOTION BY PETERSEN, SECOND BY LEMAIR, TO APPROVE THE CONSENT AGENDA AS SUBMITTED WITH RE MOVAL OF ITEM (D). VOTE: Ayes by Haugen, Blomberg, Petersen, and LeMair, the motion carried. ITEMS REMOVED FROM THE CONSENT AGENDA: Consider Approval of a Resolution Approving a Private Use of Public Property Agreement to Allow for the Encroachment of a Deck in a Rear Yard 10-Foot Drainage and Utility Easement (Case File 03.131PC. McCoy). Blomberq: Advised that she remains consistent in her previous opposition to the use of the Private Use of Public Property Agreement in this manner. MOTION BY LEMAIR, SECOND BY PETERSEN TO ADOPT RESOLUTION 04-05 APPROVING THE PRIVATE USE OF PUBLIC PROPERTY AGREEMENT TO ALLOW FOR THE ENCROACHMENT OF A DECK IN A REAR YARD 10-FOOT DRAINAGE AND UTILITY EASEMENT (Case File 03-131PC- McCoy). VOTE: Ayes by Haugen, Petersen and LeMair, Nay by Blomberg, the motion carried. PUBLIC HEARINGS: Public Hearing to Consider Approval of an Ordinance Amending Section 106 of the Prior Lake City Code Providing for Adoption of an Official Fee Schedule. Teschner: Reviewed the agenda item in connection with the staff report, briefly reviewing the proposed fee schedule. Blombera: Commented that user-based fees are an integral part of being able to provide continued service. Asked about the rationale for requiring an application fee for a fa~de improvement project. Teschner: Advised that since it is a grant program, staff fen an application fee was a fair amount to get a genuine investment by the applicant. Advised that the amount of the fee is subject to Council approval. Blombera: Commented that charging a fee might discourage a potential user in a program that is designed to be a grant. 2 CITY COUNCIL AGENDA REPORT 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 MEETING DATE: AGENDA #: PREPARED BY: REVIEWED BY: AGENDA ITEM: DISCUSSION: ALTERNATIVES: JANUARY 5, 2004 6D CYNTHIA KIRCHOFF, AICP, PLANNER JANE KANSIER, PLANNING COORDINATOR CONSIDER A RESOLUTION APPROVING A PRIVATE USE OF PUBLIC PROPERTY AGREEMENT TO ALLOW FOR THE ENCROACHMENT OF A DECK IN A REAR YARD 10 FOOT DRAINAGE AND UTILITY EASEMENT (Case file #03.131 PC. McCOY) Historv: On December 1 t 2003, the City Council directed staff to prepare a resolution with findings overruling the Planning Commission's decision to deny a Variance from the required 15 foot rear yard setback for the construction of deck addition as requested by Tim and Jane McCoy, 2830 Fox Run NW. The City Council supported a 10 foot rear yard setback Variance with the condition that the McCoy's enter into a Private Use of Public Property Agreement with the City. The agreement is necessary because the deck proposes to encroach 5 feet into the rear yard 10 foot drainage and utility easement. The agreement is attached to this report. The McCoy's attorney has reviewed the agreement and proposed a number of modifications that were incorporated in the document. Upon request by the applicant, the Council continued this item on December 15, 2003. The applicant was unable to secure the required insurance prior to the meeting. Conclusion: The attached resolution is consistent with the City Council's direction for approval of a 10 foot rear yard setback Variance with the condition that a Private Use of Public Property Agreement be executed, including an insurance and indemnification provision. The City Council has two alternatives: 1. Adopt attached the attached resolution to approve the Private Use of Public Property Agreement, including the insurance and indemnification provision. 2. Table or continue consideration of this item for specific reasons. L:\03 Files\03 Appeals\03-131 McCoy\agreemnt cc consent report. doc www.cityofpriorlake.com Phone 952.447.4230 / Fax 952.447.4245 RECOMMENDED MOTION: The staff recommends alternative # 1. The following motion is required: REVIEWED BY: A motion and second as rt of the Consent Agenda to approve Resolution 03-~ng . e Pri te Use of Public Property Agreement. Frank Boyles ity, a ger L:\03 Files\03 Appeals\03-131 McCoy\agreemnt cc consent report. doc 2 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 RESOLUTION 03-XX RESOLUTION OF THE PRIOR LAKE CITY COUNCIL APPROVING A PRIVATE USE OF PUBLIC PROPERTY AGREEMENT FOR PROPERTY LOCATED AT 2830 FOX RUN NW MOTION BY: SECOND BY: WHEREAS, The City Council approved a 10 rear yard setback Variance for Tim and Jane McCoy for the construction of a deck addition on property located at 2830 Fox Run NW, Prior Lake MN, and legally described as follows: Lot 1, Block 2, The Wilds, Scott County, Minnesota; and WHEREAS The proposed deck addition encroaches 5 feet into the rear yard 10 foot drainage and utility easement; and WHEREAS, The City Council approved the Variance with the condition that the applicant enter into a Private Use of Pubic Property Agreement with the City because of the easement encroachment; and WHEREAS, The City Council approved the Private Use of Public Property Agreement thereon on January 5, 2004. 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 Mayor and City Council are hereby authorized to execute the Private Use of Public Property Agreement on behalf of the City. Passed and adopted this 5th day of January 2004. YES NO I Haugen Blomberg LeMair Petersen Zieska Haugen Blomberg LeMair Petersen Zieska {Seal} Frank Boyles, City Manager 1:\03 files\03 appeals\03-131 mccoy\agreement resolution.doc . f . I k WWW.cltyopnorae.com Page 1 Phone 952.447.4230 / Fax 952.447.4245 PERMIT AGREEMENT FOR PRIVATE USE OF PUBLIC PROPERTY THIS AGREEMENT is made and entered into this 15th day of December, 2003, by and between the CITY OF PRIOR LAKE, Minnesota, a municipal corporation (hereinafter referred to as "City"), and TIM AND JANE McCOY, (husband and wife) (hereinafter referred to as "Owners"). RECITALS WHEREAS, Owners are the fee owner ofa tract ofland in Scott County, Minnesota, located at 2830 Fox Run NW, and legally described as follows: Lot 1, Block 2, The Wilds ; and WHEREAS, the plat of The Wilds dedicated an easement for drainage and utility purposes to the City over the northerly 10 feet of Lot 1, Block 2, The Wilds; and WHEREAS, the portion of the deck serving Owners' Property encroaches on said easement described on Exhibit A attached hereto (the encroached portion of the property hereinafter referred to as the "Permit Property"); and WHEREAS, Owners wish to use the Permit Property for a deck encroachment; and WHEREAS, Owners have requested the City to authorize continued use of the Permit Property for deck encroachment purposes; and L:\03 Files\03 Appeals\03-131 McCoy\Private Use Agreement.DOC 1 WHEREAS, such continued use of the Permit Property is not inconsistent with current use of the property by the City and the public; and WHEREAS, the City may in the future desire to use the Permit Property for other purposes which are not consistent with Owners' use of the Permit Property, and therefore the City intends to retain all of its right, title, and interest in the Permit Property; NOW, THEREFORE, the parties agree as follows: 1. Permit. The City Council has granted the Owners of Lot 1, Block 2, Wilds a variance, subject to certain conditions, to permit the construction of a deck on the rear of the house. The support members necessary to construct the deck will encroach on the City's drainage and utility easement. Owners acknowledge and agree that the placement and construction of the deck is at Owners' sole risk, and with full knowledge that the City may, upon notice as provided herein, require Owners' deck to be removed from the Permit Property at any future date, at Owners' sole expense. The Permit Property must be kept open to the public use at all items, and no fence or other obstruction may be placed on the Permit Property without the prior written approval of the City, which may be given or withheld in the sole discretion of the City. 2. Maintenance of Permit Property; Modification. Owners shall maintain the Permit Property in good condition at all times, at their sole cost and expense. If Owners fail to do so, the City may cause the necessary repair or maintenance to be done at Owners' cost. If Owners fail to pay the City for such costs, the City may assess the costs against Owners' Property. Owners shall not make any modifications to the drainage and utility easement or otherwise modify the Permit Property without the prior written approval ofthe City, which may be given or withheld in the sole discretion ofthe City. 3. Termination. In the event the City desires to use the Permit Property for a purpose which is inconsistent with the Owners' deck encroachment, which determination will be in the City's sole discretion, or in the event Owners fail to comply with any requirement of this Agreement within sixty (60) days after receiving a notice from the City requesting such compliance, the City through its City Manager may terminate this Permit Agreement by giving thirty (30) days written notice of termination to Owner by certified mail at the following address: 2830 Fox Run NW, Prior Lake, MN 55372. Such notice may, at the City's option, require Owners to completely remove the deck from the Property legally described above within said thirty (30) day notice period, including all debris. If this Permit Agreement is terminated by the City as provided herein, Owners will be solely responsible for all costs and expenses related to removal of the deck on Owners' property. L:\03 Files\03 Appeals\03-131 McCoy\Private Use Agreement.DOC 2 If Owners fail to remove the deck as required by a proper notice of termination, the City may cause the removal to be done and the costs of such work shall be paid by Owner. If Owners fail to pay the City for any costs related to removal of the deck as provided for herein, the City may assess the costs against the Owners' Property. 3.1 ;License. The Owners hereby grant City an irrevocable license to enter upon Owners' property for the purpose of removing the deck, in the event Owners fail to remove the deck. 4. Consent to Special Assessment. Owners hereby acknowledge and consent to the City's right to specially assess any costs incurred by the City for any repair or maintenance performed pursuant to Paragraph 2 of this Permit Agreement, or any costs incurred by the City to remove Owners' deck from the Permit Property pursuant to Paragraph 3 of this Permit Agreement. Owners waive any right to protest or appeal any special assessment levied pursuant to this Permit Agreement. 5. Future Development. Owners understand and acknowledge that the City may make improvements to the Permit Property in exercise of its easements rights for drainage and utility purposes at some future date and in the sole discretion ofthe City. In the event the City undertakes such development, and if this Permit Agreement is not terminated by the City as provided above, Owners agree to cooperate to the extent practicable to use its best efforts to accommodate City's use of the Permit Property for the purposes stated herein. However, Owners specifically acknowledge City has the absolute right to terminate this Agreement or otherwise require Owners to discontinue their encroachment on the Permit Property if deemed necessary by the City for the full exercise of its easement rights. 6. Indemnity. Owners shall defend, indemnify, and hold harmless the City and its employees, subcontractors, attorneys, agents, and representatives from and against all claims, damages, losses, costs and expenses, including attorney's fees, which may be incurred by or asserted against the City or for which the City may be held liable, which arise out of or result from use of the permit Property for deck encroachment purposes, including but not limited to the maintenance, repair or removal of Owners' deck, except liability caused solely by the negligence of the City. 7. Insurance. As long as this Permit Agreement is in existence, Owners shall maintain a general liability insurance policy which provides coverage for the Permit Property for any damage to property of others or injuries to persons. Said insurance policy shall provide coverage on an occurrence basis in an amount no less than One Million Dollars ($1,000,000), and shall include contractual liability coverage to provide coverage for the indemnification provision in Paragraph 6 above. Said policy shall name the City as an additional insured, and shall contain a clause which provides that the insurer will not cancel, non-renew, or materially change the policy without first giving the City thirty (30) days prior written notice. Owners shall provide the City with a L:\03 Files\03 Appeals\03-131 McCoy\Private Use Agreement.DOC 3 Certificate of Insurance for said policy which specifically details the conditions of this Paragraph 6. 8. Waiver of Claims. Owners acknowledge City's easement rights on and under the Permit Property and knowingly waive any and all claims against the City related to Owners' use of the Permit Property, including but not limited to claims of abandonment, diminution in value, takings and contractual claims arising out ofthis Permit Agreement, except any claims which are the result of the sole negligence or willful misconduct of the City or its employees or agents. 9. Condition ofPropertv. Owners accept the Permit Property "as is" and the City makes no warranties regarding the conditions of the Permit Property or the suitability of Permit Property for Owners' purposes. 10. Binding Effect. This Permit Agreement shall run with the land and shall be binding on and inure to the benefit of the parties hereto, their heirs, successors, or aSSIgns. 11. Whole Agreement; Modifications. This Permit Agreement contains all of the terms and conditions relating to the permit granted herein, and replaces any oral agreements or other negotiations between the parties relating to the permit. No modifications to this Permit Agreement shall be valid until they have been placed in writing and signed by all parties hereto. 12. Recording. Owners shall cause this Permit Agreement to be recorded in the Office of the Scott County Recorder at their cost and expense. IN WITNESS WHEREOF, the parties have executed this Permit Agreement as of the date first above written. CITY OF PRIOR LAKE OWNER(S) By: Jack G. Haugen, Mayor By: Frank Boyles, City Manager L:\03 Files\03 Appeals\03-131 McCoy\Private Use Agreement.DOC 4 STATE OF MINNESOTA) )ss COUNTY OF ) The foregoing instrument was acknowledged before me this day of ,20_, by Jack G. Haugen and Frank Boyles, The Mayor and City Manager, respectively of the City of Prior Lake, on behalf of the City of Prior Lake through authority granted by its City Council. Notary Public STATE OF MINNESOTA) )ss COUNTY OF ) The foregoing instrument was acknowledged before me this , 20_, by and and , respectively of " on behalf of the (corporation/partnership). Notary Public L:\03 Files\03 Appeals\03-131 McCoy\Private Use Agreement.DOC day of , the 5 EXHIBIT A The south 5.00 feet ofthe north 10.00 feet ofthe west 18.00 of the east 28.00 feet of Lot 1, Block 2, The Wilds, Scott County, Minnesota. CITY COUNCIL AGENDA REPORT 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 MEETING DATE: AGENDA #: PREPARED BY: REVIEWED BY: AGENDA ITEM: DISCUSSION: ALTERNATIVES: RECOMMENDED MOTION: DECEMBER 15,2003 ~ 564 CYNTHIA KIRCHOFF, AICP, PLANNER JANE KANSIER, PLANNING COORDINATOR CONSIDER A RESOLUTION APPROVING A PRIVATE USE OF PUBLIC PROPERTY AGREEMENT TO ALLOW FOR THE ENCROACHMENT OF A DECK IN A REAR YARD 10 FOOT DRAINAGE AND UTILITY EASEMENT (Case file #03.131 PC. McCOY) Historv: On December 1 J 2003, the City Council directed staff to prepare a resolution with findings overruling the Planning Commission's decision to deny a Variance from the required 15 foot rear yard setback for the construction of deck addition as requested by Tim and Jane McCoy, 2830 Fox Run NW, The City Council supported a 10 foot rear yard setback Variance with the condition that the McCoy's enter into a Private Use of Public Property Agreement with the City. The agreement is necessary because the deck proposes to encroach 5 feet into the rear yard 10 foot drainage and utility easement. The agreement is attached to this report; however, the legal description of the easement encroachment has not been provided by the McCoys to the City. Staff anticipates this information will be submitted prior to the City Council meeting. Conclusion: The attached resolution is consistent with the City Council's direction for approval of a 10 foot rear yard setback Variance with the condition that a Private Use of Public Property Agreement be executed I including an insurance and indemnification provision. The City Council has two alternatives: 1. Adopt attached the attached resolution to approve the Private Use of Public Property Agreement. including the insurance and indemnification provision. 2. Table or continue consideration of this item for specific reasons. The staff recommends alternative # 1. The following motion is required: A motion and second as part of the Consent Agenda to approve Resolution 03-XX approving the Private Use of Public Property Agreement. L:\03 Files\03 Appeals\03-131 McCoy\agreemnt cc consent report.doc www.ciit.ofpriorlake.com Phone 952.447.4230 / Fax 952.447.4245 t REVIEWED BY: ~,~~ ,~ Frank Bo~ Mf'ager L:\03 Files\03 Appeals\03-131 McCoy\agreemnt cc consent report.doc 2 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 RESOLUTION 03-XX RESOLUTION OF THE PRIOR LAKE CITY COUNCIL APPROVING A PRIVATE USE OF PUBLIC PROPERTY AGREEMENT FOR PROPERTY LOCATED AT 2830 FOX RUN NW MOTION BY: SECOND BY: WHEREAS, The City Council approved a 10 rear yard setback Variance for Tim and Jane McCoy for the construction of a deck addition on property located at 2830 Fox Run NW, Prior Lake MN, and legally described as follows: Lot 1, Block 2, The Wilds, Scott County, Minnesota; and WHEREAS The proposed deck addition encroaches 5 feet into the rear yard 10 foot drainage and utility easement; and WHEREAS, The City Council approved the Variance with the condition that the applicant enter into a Private Use of Pubic Property Agreement with the City because of the easement encroachment; and WHEREAS, The City Council approved the Private Use of Public Property Agreement thereon on December 15, 2003. 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 Mayor and City Council are hereby authorized to execute the Private Use of Public Property Agreement on behalf of the City. Passed and adopted this 15th day of December 2003. YES NO I Haugen Blomberg LeMair Petersen Zieska Haugen Blomberg LeMair Petersen Zieska {Seal} City Manager 1:\03 files\03 appeals\03-131 mccoy\agreement resolution.doc .ty f . I k www.clopnorae.com Page 1 Phone 952.447.4230 / Fax 952.447.4245 PERMIT AGREEMENT FOR PRIVATE USE OF PUBLIC PROPERTY THIS AGREEMENT is made and entered into this 15th day of December, 2003, by and between the CITY OF PRIOR LAKE, Minnesota, a municipal corporation (hereinafter referred to as "City"), and Tim and Jane McCoy, (husband and wife) (hereinafter referred to as "Owners"). RECITALS WHEREAS, Owners are the fee owner ofa tract of land in Scott County, Minnesota, located at 2830 Fox Run NW, and legally described as follows: Lot 1, Block 2, The Wilds (hereinafter referred to as "the Permit Property"); and WHEREAS, the plat of The Wilds dedicated an easement for drainage and utility purposes to the City over the northerly 10 feet of Lot 1, Block 2, The Wilds; and WHEREAS, the portion ofthe deck serving Owners' Property encroaches on said easement described on Exhibit A attached hereto (the encroached portion of the property hereinafter referred to as the "Permit Property"); and WHEREAS, Owners wish to use the Permit Property for a deck encroachment; and WHEREAS, Owners have requested the City to authorize continued use of the Permit Property for deck encroachment purposes; and L:\03 Files\03 Appeals\03-131 McCoy\Private Use Agreement.DOC 1 WHEREAS, such continued use ofthe Permit Property is not inconsistent with current use ofthe property by the City and the public; and WHEREAS, the City may in the future desire to use the Permit Property for other purposes which are not consistent with Owners' use ofthe Permit Property, and therefore the City intends to retain all of its right, title, and interest in the Permit Property; NOW, THEREFORE, the parties agree as follows: 1. Permit. Owners shall be permitted to use the Permit Property for deck encroachment purposes at Owners' sole expense and risk, and with full knowledge that the City may, upon notice as provided herein, require Owners' deck to be removed from the Permit Property at any future date, at Owners' sole expense. The Permit Property must be kept open to the public use at all items, and no fence or other obstruction may be placed on the Permit Property without the prior written approval ofthe City, which may be given or withheld in the sole discretion of the City. 2. Maintenance of Permit Property; Modification. Owners shall maintain the Permit Property in good condition at all times, at their sole cost and expense. If Owners fail to do so, the City may cause the necessary repair or maintenance to be done at Owners' cost. If Owners fail to pay the City for such costs, the City may assess the costs against Owners' Property. Owners shall not make any modifications to the drainage and utility easement or otherwise modify the Permit Property without the prior written approval of the City, which may be given or withheld in the sole discretion of the City. 3. Termination. In the event the City desires to use the Permit Property for a purpose which is inconsistent with deck encroachment use by Owners, to be determined in the City's sole discretion, or in the event Owners fail to comply with any requirement of this Agreement within sixty (60) days after receiving a notice from the City requesting such compliance, the City through its City Manager may terminate this Permit Agreement by giving ninety (90) days written notice oftermination to Owner by certified mail at the following address: 2830 Fox Run NW, Prior Lake, MN 55372. Such notice may, at the City's option, require Owners to completely remove the deck from the Permit Property within said ninety (90) day notice period, including all debris. If this Permit Agreement is terminated by the City as provided herein, Owners will be solely responsible for all costs and expenses related to construction of a deck which is located on Owners' Property, in accordance with all City Ordinances. If Owners fail to remove the deck as required by a proper notice of termination, the City may cause the removal to be done and the costs of such work shall be paid by Owner. If Owners fail to pay the City for such costs, the City may assess the costs against the Owners' Property. L:\03 Files\03 Appeals\03-131 McCoy\Private Use Agreement.DOC 2 4. Consent to Special Assessment. Owners hereby acknowledge and consent to the City's right to specially assess any costs incurred by the City for any repair or maintenance performed pursuant to Paragraph 2 of this Permit Agreement, or any costs incurred by the City to remove Owners' deck from the Permit Property pursuant to Paragraph 3 of this Permit Agreement. Owners waive any right to protest or appeal any special assessment levied pursuant to this Permit Agreement. 5. Future Development. Owners understand and acknowledge that the City may utilize the Permit Property at some future date and in the sole discretion of the City. In the event the City undertakes such develv}Jment, and ifthis Permit Agreement is not terminated by the City as provided above, Owners agree to cooperate to the extent practicable to use its best efforts to accommodate City's use ofthe Permit Property for the purposes stated herein. However, Owners specifically acknowledge City has the absolute right to terminate this agreement or otherwise require Owners to discontinue Owners' use of the Permit Property, in which case Owners may be denied access to Owners' property. If such should occur, Owner will have no recourse against City, including actions for diminution in value or a taking without compensation. 6. Indemnitv. Owners shall defend, indemnify, and hold harmless the City and its employees, subcontractors, attorneys, agents, and representatives from and against all claims, damages, losses, costs and expenses, including attorney's fees, which may be incurred by or asserted against the City or for which the City may be held liable, which arise out of or result from use of the permit Property for deck encroachment purposes, including but not limited to the maintenance, repair or removal of Owners' deck, except liability caused solely by the negligence of the City. 7. Insurance. As long as this Permit Agreement is in existence, Owners shall maintain a general liability insurance policy which provides coverage for the Permit Property for any damage to property of others or injuries to persons. Said insurance policy shall provide coverage on an occurrence basis in an amount no less than One Million Dollars ($1,000,000), and shall include contractual liability coverage to provide coverage for the indemnification provision in Paragraph 6 above. Said policy shall name the City as an additional insured, and shall contain a clause which provides that the insurer will not cancel, non-renew, or materially change the policy without first giving the City thirty (30) days prior written notice. Owners shall provide the City with a Certificate of Insurance for said policy which specifically details the conditions ofthis Paragraph 6. 8. Waiver of Claims. Owners acknowledge City's ownership of the Permit Property and knowingly waive any and all claims against the City related to Owners' use of the Permit Property, including but not limited to claims of abandonment, diminution in value, takings and contractual claims arising out of this Pennit Agreement, except any claims which are the result ofthe sole negligence or willful misconduct of the City or its employees or agents. L:\03 Files\03 Appeals\03-131 McCoy\Private Use Agreement.DOC 3 9. Condition ofPropertv. Owners accept the Permit Property "as is" and the City makes no warranties regarding the conditions of the Pennit Property or the suitability of Permit Property for Owners' purposes. 10. Binding Effect. This Permit Agreement shall run with the land and shall be binding on and inure to the benefit of the parties hereto, their heirs, successors, or assIgns. 11. Whole Agreement: Modifications. This Permit Agreement contains all of the terms and conditions relating to the permit granted herein, and replaces any oral agreements or other negotiations between the parties relating to the permit. No modifications to this Permit Agreement shall be valid until they have been placed in writing and signed by all parties hereto. 12. Recording. Owners shall cause this Permit Agreement to be recorded in the Office ofthe Scott County Recorder at their cost and expense. IN WITNESS WHEREOF, the parties have executed this Permit Agreement as of the date first above written. CITY OF PRIOR LAKE OWNER(S) By: Jack G. Haugen, Mayor By: Frank Boyles, City Manager STATE OF MINNESOTA) )ss COUNTY OF ) The foregoing instrument was acknowledged before me this _ day of 20_, by Jack G. Haugen and Frank Boyles, The Mayor and City Manager, respectively of the City of Prior Lake, on behalf of the City of Prior Lake through authority granted by its City Council. Notary Public L:\03 Files\03 Appeals\03-131 McCoy\Private Use Agreement.DOC 4 STATE OF MINNESOTA) )ss COUNTY OF ) The foregoing instrument was acknowledged before me this 20_, by and , the and , respectively of (corporation/partnership). Notary Public L:\03 Files\03 Appeals\03-131 McCoy\Private Use Agreement.DOC day of , on behalf of the 5 CITY COUNCIL AGENDA REPORT 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 MEETING DATE: AGENDA #: PREPARED BY: REVIEWED BY: AGENDA ITEM: DISCUSSION: DECEMBER 15, 2003 5G3 CYNTHIA KIRCHOFF, AICP, PLANNER JANE KANSIER, PLANNING COORDINATOR . (1) CONSIDER A RESOLUTION OVERRULING THE DECISION OF THE PLANNING COMMISSION AND APPROVING A REAR YARD SETBACK VARIANCE FOR THE CONSTRUCTION OF A DECK ADDITION and (2) CONSIDER A RESOLUTION UPHOLDING THE DECISION OF THE PLANNING COMMISSION TO DENY A SIDE YARD SETBACK VARIANCE FOR THE CONSTRUCTION OF A DECK ADDITION (Case file #03-131 PC-McCOY) Historv: The City Council held a public hearing on December 1, 2003, to consider an appeal from the Planning Commission's decision to deny a 12.1 foot Variance from the required 15 foot rear yard setback and a 3.3 foot Variance from the required 10 foot side yard setback as requested by Tim and Jane McCoy, 2830 Fox Run NW. The City Council supported a 10 foot rear yard setback Variance because the property is within The Wilds Planned Unit Development (PUD), and PUDs allow flexible setbacks. Moreover, a 5 foot rear yard setback is allowed for the "Villa Homes" in The Wilds, which also directly abut the golf course. The City Council determined there was no hardship to justify a side yard setback . Variance and upheld the Planning Commission's decision to deny that request. The Council attached the following conditions to the rear yard setback Variance. These conditions must be adhered to prior to the issuance of a building permit for the deck addition. 1. The resolution must be recorded at Scott County within 60 days of adoption. Proof of recording, along with the acknowledged City Assent Form, shall be submitted to the Planning Department prior to the issuance of a building permit. 2. The building permit is subject to all other applicable city, county, and state agency regulations. L:\03 Files\03 Appeals\03-131 McCoy\cc consent r~~ofpriorlake.com 1 Phone 952.447.4230 / Fax 952.447.4245 3. The applicant shall enter into a Private Use of Public Property Agreement with the City to allow for the encroachment into the 10 foot drainage and utility easement. This agreement shall include indemnification provisions. No building permit will be issued until Council has approved this agreement. Conclusion: The attached resolutions are consistent with the City Council's direction for approval of a 10 foot rear yard setback Variance to allow for the construction of a deck addition, and the denial of the 3.3 foot side yard setback Variance. ALTERNATIVES: The City Council has two alternatives: 1. Adopt attached the attached resolution to approve the 10 foot rear yard setback Variance as requested by the applicant, and adopt the resolution upholding the decision of the Planning Commission to deny the 3.3 foot side yard setback Variance. 2. Table or continue consideration of these items for specific reasons. RECOMMENDED MOTION: The staff recommends alternative # 1. The following motions are required: A motion and second as part of the Consent Agenda to approve Resolution 03-XX overruling the decision of the Planning Commission and approving the 10 foot rear yard setback Variance subject to the conditions. A motion and second as part of the Consent Agenda to approve Resolution 03-XX upholding the decision of the Planning Commission to deny the 3.3 foot side yard setback riance. REVIEWED BY: L:\03 Files\03 Appeals\03-131 McCoy\cc consent report. doc 2 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 RESOLUTION 03-XX RESOLUTION OF THE PRIOR LAKE CITY COUNCIL REVERSING THE PLANNING COMMISSION'S DECISION AND APPROVING A 10 FOOT VARIANCE FROM THE REQUIRED 15 FOOT REAR YARD SETBACK FOR THE CONSTRUCTION OF A DECK ADDITION ON PROPERTY ZONED PUD (PLANNED UNIT DEVELOPMENT) AND SD (SHORELINE OVERLAY) AND LOCATED AT 2830 FOX RUN NW MOTION BY: SECOND BY: WHEREAS, Tim and Jane McCoy applied for Variances for the construction of a deck addition as shown on Exhibit A on property zoned PUD (Planned Unit Development) and SD (Shoreland) Districts and located at 2830 Fox Run NW, Prior Lake MN, and legally described as follows: Lot 1, Block 2, The Wilds, Scott County, Minnesota; and WHEREAS The Planning Commission reviewed the application for rear and side yard setback Variances as contained in Case File 03-122, and held a hearing thereon October 27, 2003; and WHEREAS, The Planning Commission concluded the Variance requests did not meet the hardship criteria and denied the requests; and WHEREAS, James Bates, on behalf of Tim and Jane McCoy, appealed the decision of the Planning Commission in accordance with Section 1109.400 of the City Code on October 28, 2003; and WHEREAS, The City Council reviewed the appeal of the Planning Commission's decision, and the information contained in Case File 03-122 and Case File 03-131, and held a hearing thereon on December 1, 2003. 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 finds that the requested rear yard setback Variance meets the criteria for granting Variances set forth in Section 1108.400 of the City Code, and that the appellants have set forth adequate reasons for granting a rear yard setback Variance. 3) The City Council determined that the Planning Commission's decision denying the requested Variances should reversed in part, and that a 10 foot rear yard setback Variance should be approved. www.cityofpriorlake.com ~':'~ ~',:,'="Ji appsals\Q:i 12~ :::~~"l:-;;'~sual F8s9lwtieR gC~ Phone 952.447.4230 / Fax 952.447.4245 D~. 4) The City Council makes the following findings: a. James Bates, counsel for Tim and Jane McCoy, appealed the decision of the Planning Commission in accordance with Section 1109.400 of the City Code on October 28, 2003. b. The City Council reviewed the appeal of the Planning Commission's decision, and the information contained in Case File 03-122 and Case File 03-131, and held a hearing thereon on December 1, 2003. c. The City Council determined that the McCoy residence is within a PUD. d. The City Council discussed and found that standards in a PUD are often reduced or modified because PUDs are only approved if the development has unique characteristics distinct from those set forth in the criteria. The City Council further found that requiring the McCoys to apply for a PUD amendment to permit second-story decks on homes that abut a golf course, would create an unnecessary burden and hardship on appellants. The City Council further found that it would prefer to handle decks abutting a golf course on a case-by-case basis rather than by an amendment within the Wilds PUD. e. The City Council heard testimony that when the McCoys purchased the residence it was in need of significant repair and was a blight to the neighbors. Neighbors of the McCoys testified that the McCoys have made significant improvements to the property. f. The City Council heard testimony that a large deck was attached to the home when the McCoys purchased it, that the deck and its supporting elements were rotting and created an actual hazard as Mr. McCoy testified that he fell through the deck. The City Council finds that these characteristics are unique to the property and are not a result of appellants' actions. g. The City Council determined that bulk standards are flexible within a Planned Unit Development, and the 5 foot rear yard setback allowed with the 10 foot Variance is consistent with the 5 foot minimum rear yard setback permitted for the "Villa Homes" in The Wilds. h. The City Council determined that the rear yard setback Variance would not unreasonably impact the character of the neighborhood because the proposed deck addition meets the 10 foot minimum required side yard setback. i. 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 variances on the Comprehensive Plan. j. The City Council rejects appellants' argument that a variance must be granted because the variance is necessary in order for appellants to make reasonable use of their property. This variance is based on the unique conditions relating to this specific property, and not because of what appellants define as a reasonable use of their property. Reasonableness is a finding for the City Council to make based on evidence in the record relating to the specific property for which a variance is being sought and based on the City Code variance criteria. 5) The contents of Planning Case File 03-122 and Planning Case File 03-131 are hereby entered into and made a part of the public record and the record of the decision for this case. 1:\03 files\03 appeals\03-131 mccoy\approval resolution.doc Page 2 6) Based upon the Findings set forth above, the City Council hereby overrules the decision of the Planning Commission and approves a 10 foot Variance from the 15 foot rear yard setback for the construction of a deck addition as shown on Exhibit A, with the following conditions: A. The resolution must be recorded by the applicant at Scott County within 60 days of adoption. Proof of recording, along with the acknowledged City Assent Form, shall be submitted to the Planning Department prior to the issuance of a building permit. B. The building permit is subject to all other applicable city, county, and state agency regulations. C. The applicant shall enter into a Private Use of Public Property Agreement with the City to allow for the encroachment into the 10 foot drainage and utility easement. This agreement shall include indemnification provisions. No building permit will be issued until Council has approved this agreement. Passed and adopted this 15th day of December 2003. YES NO Haugen Blomberg LeMair Petersen Zieska Haugen Blomberg LeMair Petersen Zieska {Seal} City Manager 1:\03 files\03 appeals\03-131 mccoy\approval resolution.doc Page 3 .... ._--- . - . --. - _,,_-_,__,,~--"'.-'-'-'''''''''''~- -'---~- --_.-_~....--"-,._.--------'- ------ CERllF1CATE OF SUR~Y PREPARED FOR: 11M ~CCOY 2830 FOX RUN NW PRIOR LAKE. MN 55372 --... .,<.. o + ",. ./ ~ V~ SlJR'JEYING CO., P.A. 16670 FRANKUN lRAll SE SUI1E 230 PRIOR LAKE. MN 55372 (952) +47-2570 ---- 13.2. 94 ~ '-UTILITY ;jt Limit. ., Dock suppo,t --- 1lOI" N81' 00' 00. w --i\ ..,11-' -- E.4 SEMENT2 t'i' \ ~ t.., N, 5.7 - - - -!::, \ 10 r 1 1 I I I l - - -- ..... ..... ~"" 1-- I I I I J , I , " I " '';' , ; I ; I ~'~O-; ; , , "; GAR4GE ; I .~; ; J ": ~ ... , ; ~ I ; ~ I '. , ... . .;' ... ;' .,. , ." ' ~;' r ,d.o... m . . ...----- <0 I N I <t I , j5 1 J / .,. ___/"-- 30.00 -- \'185' OO'~O.E_ a DRAINAGE " " " "- "- \ /\ /' \ \ 4' .,:. 4 " C on-cr.t, ., . Drlv,way "4' . ...4 . ~"."4 ..,.. ..... ------ l.EGAL DESCRIPTION AS PR0\i10EO:': l.ot 1, Block 2, ll-iE 'MLDS, Scott County, Minnesota. Also showing 011 visible improvements ond/or encroachments onto or off, from said property if any, as of this 2nd day of July, 2003. ~ - -.~-~~~ ~ !~,~~' Ii; '\ ',::~_::..-=:_;_.. I' \ ,\ II v : i ~ ( ! .~ \\ Ii \'. :U \.;., 20 . . 0 10 20 I ~. . Scale ID reet t"M . '7 ,;no,~ \.~J .' (..\... v l&I 8 0 0 . ,." 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Prior Lake, MN 55372-1714 RESOLUTION 03-XX RESOLUTION OF THE PRIOR LAKE CITY COUNCIL REVERSING THE PLANNING COMMISSION'S DECISION AND APPROVING A 10 FOOT VARIANCE FROM THE REQUIRED 15 FOOT REAR YARD SETBACK FOR THE CONSTRUCTION OF A DECK ADDITION ON PROPERTY ZONED PUD (PLANNED UNIT DEVELOPMENT) AND SO (SHORELINE OVERLAY) AND LOCATED AT 2830 FOX RUN NW MOTION BY: SECOND BY: WHEREAS, Tim and Jane McCoy applied for Variances for the construction of a deck addition as shown on Exhibit A on property zoned PUD (Planned Unit Development) and SD (Shoreland) Districts and located at 2830 Fox Run NW, Prior Lake MN, and legally described as follows: Lot 1, Block 2, The Wilds, Scott County, Minnesota; and WHEREAS The Planning Commission reviewed the application for rear and side yard setback Variances as contained in Case File 03-122, and held a hearing thereon October 27, 2003; and WHEREAS, The Planning Commission concluded the Variance requests did not meet the hardship criteria and denied the requests; and WHEREAS, James Bates, on behalf of Tim and Jane McCoy, appealed the decision of the Planning Commission in accordance with Section 1109.400 of the City Code on October 28, 2003; and WHEREAS, The City Council reviewed the appeal of the Planning Commission's decision, and the information contained in Case File 03-122 and Case File 03-131, and held a hearing thereon on December 1, 2003. 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 finds that the requested rear yard setback Variance meets the criteria for granting Variances set forth in Section 1108.400 of the City Code, and that the appellants have set forth adequate reasons for granting a rear yard setback Variance. 3) The City Council determined that the Planning Commission's decision denying the requested Variances should reversed in part, and that a 10 foot rear yard setback Variance should be approved. www.cityofpriorlake.com 1:'.e3 files\e3 Slillilesls\~3 ~ Z~ rneeey\alillilFEl\'sl FEleellltieR.E1:;:; ~;~:i 1 Phone 952.447.4230 / Fax 952.447.4245 4) The City Council makes the following findings: a. James Bates, counsel for Tim and Jane McCoy, appealed the decision of the Planning Commission in accordance with Section 1109.400 of the City Code on October 28, 2003. b. The City Council reviewed the appeal of the Planning Commission's decision, and the information contained in Case File 03-122 and Case File 03-131, and held a hearing thereon on December 1, 2003. c. The City Council determined that the McCoy residence is within a PUD. d. The City Council discussed and found that standards in a PUD are often reduced or modified because PUDs are only approved if the development has unique characteristics distinct from those set forth in the criteria. The City Council further found that requiring the McCoys to apply for a PUD amendment to permit second-story decks on homes that abut a golf course, would create an unnecessary burden and hardship on appellants. The City Council further found that it would prefer to handle decks abutting a golf course on a case-by-case basis rather than by an amendment within the Wilds PUD. e. The City Council heard testimony that when the McCoys purchased the residence it was in need of significant repair and was a blight to the neighbors. Neighbors of the McCoys testified that the McCoys have made significant improvements to the property. f. The City Council heard testimony that a large deck was attached to the home when the McCoys purchased it, that the deck and its supporting elements were rotting and created an actual hazard as Mr. McCoy testified that he fell through the deck. The City Council finds that these characteristics are unique to the property and are not a result of appellants' actions. g. The City Council determined that bulk standards are flexible within a Planned Unit Development, and the 5 foot rear yard setback allowed with the 10 foot Variance is consistent with the 5 foot minimum rear yard setback permitted for the "Villa Homes" in The Wilds. h. The City Council determined that the rear yard setback Variance would not unreasonably impact the character of the neighborhood because the proposed deck addition meets the 10 foot minimum required side yard setback. i. 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 variances on the Comprehensive Plan. j. The City Council rejects appellants' argument that a variance must be granted because the variance is necessary in order for appellants to make reasonable use of their property. This variance is based on the unique conditions relating to this specific property, and not because of what appellants define as a reasonable use of their property. Reasonableness is a finding for the City Council to make based on evidence in the record relating to the specific property for which a variance is being sought and based on the City Code variance criteria. 5) The contents of Planning Case File 03-122 and Planning Case File 03-131 are hereby entered into and made a part of the public record and the record of the decision for this case. 1:\03 files\03 appeals\03-131 mccoy\approval resolution.doc Page 2 6) Based upon the Findings set forth above, the City Council hereby overrules the decision of the Planning Commission and approves a 10 foot Variance from the 15 foot rear yard setback for the construction of a deck addition as shown on Exhibit A, with the following conditions: A. The resolution must be recorded by the applicant at Scott County within 60 days of adoption. Proof of recording, along with the acknowledged City Assent Form, shall be submitted to the Planning Department prior to the issuance of a building permit. B. The building permit is subject to all other applicable city, county, and state agency regulations. C. The applicant shall enter into a Private Use of Public Property Agreement with the City to allow for the encroachment into the 10 foot drainage and utility easement. This agreement shall include indemnification provisions. No building permit will be issued until Council has approved this agreement. Passed and adopted this 15th day of December 2003. YES NO Hau~en Blomberg LeMair I Petersen I Zieska Haugen Blomberg LeMair Petersen Zieska {Seal} City Manager 1:\03 files\03 appeals\03-131 mccoy\approval resolution.doc Page 3 _r____" ~ "_., ~_,.",___",,_"'_k.......__...,..__a._ ___..., _..__.__~.__. _..___..w.__~._ '1 CERlI~ATE OF SURVEY PREPARED FOR: 11M ~cCOY 2830 FOX RUN NW PRIOR LAKE, !IAN 55372 '- .... -- ,,<.. o + ~v ~ ",. .1 ---- 13.2. 94 !:? \'UTllITY a DRAIN"'GE V~ SURW'tIiC CO.. P.A. 18670 FRANKUN TRAIL SE SUrTE 230 PRIOR LAKE. NN 55372 (952) 447-2570 . HOUSE I I I I , I ; I , , , , ~ , ; I ; I , <1 , I 4 . ~/ ~~-IOT.O-; ~ ~ I , " ..". ~ GAR"'GE ; I '4 " ~ I . 4 ~ , ".'~ ., . ~ ~ , ~ ~ I '. ;' , "" ., ... / ... / "" ..../ r ,d.o.. 0\ 'oT- ~ , ~ I I JS Jllmll.o, D.ck ouPPO<' ____ POI'. NB700010otW.;i\ -- _E~EM~NT2 li \ ~\ -t:: \ - - -- ...... ...... " "- "- , ,,-\ ,- \ \ .' .s'~: . C oner.'. <tI . Orive'woy . "4 ....s. <i'.<1 LEGAL DESCRIPTION AS PROVIDED:!' '4.. '- - -- I I ,/ )11 ~ - - 30.00 -- N650 00' OO"E ~- Lot 1, Block 2, ll-lE 'MLDS, Scott County, Minnesota. Also showing 011 visible improvements and/or encroachments onto or off, from said property if any. os of this 2nd day of July, 2003. rr: -~-:-::-~ ~ (~'. . ~ \ i ~,t:_.-_:~..~_:=_;_~....~.. !!' I: I' \ ,i il v ',. ( i'. ~ Ii \ " :U l.' 20 ' . 0 10 20 I ~...~ . Scale In ,..t . DENOTES IRON MONUMENT FOUND o DENOTES IRON MONUMENT SET AND MARKED BY MINNESOTA UCENSE No.101llJ NfT . '7 ,;rn-:. '1.1.11 t..l...~V -. -- -..-/ Rev. 10/6/03 To ,how plOP*d dltk info. S ;-'''' _, o~ig;'Os~o I , I l.&I 8 (:) 0 0 rtJ r~ 0 ~ Z '-- ,---........-.. - 15.9 -~/////"" " / / / , / " ~ HOUSE , , , , / , ~- 16.0- ~ ..---...----.... ""///// - I heroby cwtlfy that thl. CertlRcat. of Surwy wa. pr.pored by m. Of" under my direct ....perAslClll and that I am a duly Uc..nct Land Surveyor under the lawe of tile Stat. of Mlnneeota. .~~/Jc() ~ ,- Mlnn_ota Uc.... No. 101llJ Dot.d thl....J!i.!i.Of JlI Ie.. FILE NO. 9707 BOOK 23lI PAGE 76 2003 ~ ~ EXHIBIT A City Council Meeting Minutes DRAFT December 1, 2003 Pace: Asked what distinguishes a deck from a balcony. Kansier: Explained that a deck requires supports to the ground where a balcony is cantilevered from the house. Also noted that as long as the design of the deck fits within the granted setback, it can be any style. VOTE: Ayes Haugen, Blomberg, Petersen and LeMair, Nay by Zieska, the motion carried. ......-' ~ The Council took a brief recess. Consider Approval of an Appeal of the Planning Commission Denial of a Variance for the Construction of a Deck Addition 2830 Fox Run NW (Case File #03-131). Kirchoff: Reviewed the agenda item in connection with the staff report. Blomberq: Asked for a definition of a "villa" style home. Kirchoff: According to the PUD, villa homes are single family attached or detached homes on smaller lots. On this home, there are no lower level patio doors. Blombera: Asked if the golf course will always be a golf course. Kirchoff: The golf course use can be changed through an application for amendment to the PUD by the owner and approval by the City Council. Petersen: Asked the size of the proposed deck. Kirchoff: Advised that the proposed deck is smaller than the old one, approximately 14'x20'. Pace: Clarified that the intended use of the City's Private Use of Public Properly Agreement was not to prospectively allow construction within an easement, or a waiver of the City's right for infringement into an easement. LeMair: Asked if there was ever a permit issued for the deck. Kirchoff: No permit was issued. The staff cannot tell when the original deck was constructed and has assumed that the deck was included after issuance of the certificate of occupancy since it was not included on the survey for the house. Mayor Haugen declared the public hearing open. Jim Bates (attorney for the applicant): Advised that the proposed deck does not protrude further than the initial deck. Also advised that the lot size is .46 acres. Submitted a letter dated November 28, 2003 from him to the City Council on his interpretation of the state standard for variances. Further noted that State statute allows City's the variance tool to provide relief for property owners from the strict application of the ordinance. Noted that the McCoys bought the property with the initial non-conforming, illegal deck and that the excessive impervious surface existed at the time of the issuance of the Certificate of Occupancy. Clarified that the door faces to the rear of the house even though it is on the far east side of the home. There is no significant impact upon adjacent neighbors and indicated that the golf course representatives do not 8 City Council Meeting Minutes DRAFT December 1, 2003 oppose the variance request. Believed these circumstances provide a practical difficulty in achieving a reasonable use of the home. Petersen: Advised that the old deck looks much less than 14 feet. Bates: Advised that he has seen the old footings. Blombera: Asked for clarification of Mr. Bates reference to a 5 foot setback. , Bates: Explained that at the Planning Commission meeting, a 1994 City Council resolution showed a rear yard setback for properties adjacent to golf course fairways was changed. The setback for the villas was 5 feet, and for 1/3 and 12 acre sites at 15 feet. The plats for the villas do not show drainage and utility easements at the backs of those lots. The single family homes sites provide a 10 foot utility and drainage easements. It appears that a standard was established as a matter of policy that rear yard setbacks adjacent to the golf course could be as little as 5 feet. Also believed that the encroachment of the deck into the easement could be addressed through a Private Use of Public Property Agreement. Blombera: Asked if a smaller deck is an option in order to accommodate the easement. Bates: Advised that if the easeme'nt is accommodated, the actual width of the deck at one point is 5 feet. Tim McCo~ (2830 Fox Run): Advised that the deck existed when he bought the house and replacement was required due to its condition. The County advised him that as long as there is no building, repair was permitted. Did not believe that reducing the deck size to 5 feet at one point would accommodate reasonable use. Created a nice house from a neighborhood eyesore. Believed not having a deck is a hardship. LeMair: Asked about the condition of the footings for the initial deck. McCo\(: Advised that the footings that were removed were only 18 inches deep and the deck was sloping toward the house. Being "in the trade" he proceeded to remove the bad footings. Not all of the footings have been removed. MOTION BY ZIESKA, SECOND BY LEMAIR TO CLOSE THE PUBLIC HEARING. VOTE: Ayes by Haugen, Blomberg, Petersen, Zieska and LeMair, the motion carried. Blombera: Asked for clarification as to the setbacks. Commented that for properties abutting open space she could justify a variance, but there is an issue with the easement along the rear property. Because of the easement, she will support the Planning Commission decision. Petersen: Believed this issue is similar to the last variance application in that the property abuts the open space of the golf course. The easement may never.be used. Supported the variance. Zieska: Asked if vacating the easement is a possibility. Kirchoff: The easement is being used for drainage purposes. Zieska: Because the property is located in a PUD, there is some flexibility. He can live with the 5 foot rear yard setback, but would like to see the side yard encroachment eliminated. Also believed the Private Use of Public Property Agreement can be used with respect to the rear easement. \ 9 City Council Meeting Minutes DRAFT December 1, 2003 LeMair: Agreed with Council member Zieska and that a reasonable solution can be found so that the property owner can accommodate his deck. . Hauaen: Agreed with Councilmember Zieska. Blomberq: Asked if a deck size of 12 foot x 16.5 feet accommodates the door. Zieska: It would with some creative design. Asked Mr. McCoy if maintaining the side yard setback could be accommodated. McCov: Advised that the survey has been altered somewhat and there is very little room to accommodate the door. Blomberq: Asked why the Council is considering allowing the rear yard variance and not a side yard. Zieska: The rationale is that the side yard infringes upon a neighbor and the rear yard only infringes upon the golf course open space. Pace: Advised that any infringement into an easement requires a Private Use of Public Property Agreement and requires indemnification. MOTION BY PETERSEN, SECOND BY LEMAIR, TO DIRECT STAFF PREPARE A RESOLUTION OVERTURNING THE PLANNING COMMISSION DECISION AND GRANTING A VARIANCE INTO THE REAR YARD SETBACK TO ALLOW A FIVE FOOT SETBACK WITH NO VARIANCE TO THE SIDE YARD SETBACK AND REQUIRING A PRIVA TE USE OF PUBLIC PROPERTY AGREEMENT INDEMNIFYING THE CITY. VOTE: Ayes by Haugen, Petersen, Zieska and LeMair, Nay by Blomberg, the motion carried. -~ PRESENTATIONS: Presentation by Norex Corporation Regarding Their New Facility Ron Haberkorn: Discussed how happy Norex is with its new facility and thanked the City for its support. Noted that as a result of support in Prior Lake, they decided to maintain their old building and re-lease the space to new Prior Lake businesses. Advised that their commercial construction and taxes will contribute to the on-going betterment of Prior Lake. Viewed a brief video tape of the new facility. Advised there are 62 offices in the building all with outside views. Publicly thanked Bob Barsness of Prior Lake State Bank, Mayor Haugen and the City Council, City staff for all their help and patience, and the citizens and people of Prior Lake. As a token of appreciation, presented Mayor Haugen with a $20,000 contribution toward a downtown fountain/aerator and landscaping for the business park entry monuments. Hauaen: Thanked Mr. Haberkorn, his family, and the Norex team for their contributions to the City. It is important to invest in our current businesses in order to attract new ones. OLD BUSINESS Consider Approval of a Resolution Approving the Final Planned Unit Development Plan and PUD Development Contract and Approval of a Resolution Approving the Final Plat and Development Contract for Crystal Bay. Kansier: Reviewed the agenda item in connection with the staff report. Blombera: Asked if all the decks are where they are supposed to be. 10 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 CITY COUNCIL AGENDA REPORT AGENDA ITEM: DECEMBER 1, 2003 70 CYNTHIA KIRCHOFF, AICP, PLANNER JANE KANSIER, PLANNING COORDINATOR CONSIDER APPROVAL OF AN APPEAL OF THE PLANNING COMMISSION'S DECISION TO DENY VARIANCES FOR THE CONSTRUCTION OF A DECK ADDITION (Case File #03-131) MEETING DATE: AGENDA #: PREPARED BY: REVIEWED BY: INTRODUCTION: Historv: On October 27,2003, the Planning Commission denied Tim and Jane McCoy's requests for rear and side yard setback Variances for the construction of a 14 foot by 20 foot deck addition on property located at 2830 Fox Run NW (Lot 1, Block 2, The Wilds). The Commission supported the overall upgrade of the dwelling, but found no hardship. The design of the home was cites as the issue, not the minimum setback. Furthermore, the Commission did not find the applicant's argument about replacing a large deck with a smaller deck compelling, because the original deck was illegal. The Commission did not support staffs recommendation that impervious surface in excess of 30 percent be removed as a condition of granting the Variances. Backaround: Section 1108.408 of the Zoning Ordinance permits any owner of affected property within 350 feet of the subject property to appeal the decision of the Board of Adjustment (Planning Commission) to the City Council. On October 28, 2003, James Bates, attorney for the McCoys, appealed the Planning Commission's decision. DISCUSSION: Current Circumstances: The property is zoned PUD (Planned Unit Development) and SO (Shoreland Overlay District), and is guided R- UMD (Urban Low/Medium Density Residential) in the 2020 Comprehensive Plan. The property was platted as Lot 1, Block 2, The Wilds in 1993. L:\03 Files\03 Appeals\03-131 McCoy\cc~fIiiorlake.com Phone 952.447.4230 / Fax 952.447.4245 Lot 1, Block 2 directly abuts the fairway for the fifth hole of The Wilds Golf Course. The Wilds was approved as a PUD, so a modification of the required rear yard setback was approved for those lots abutting the golf course in the form of a resolution. Instead of the 25 foot rear yard setback required in the R-1 use district, a 15 foot setback is permitted. In 1995, a building permit was issued for the construction of the existing single family dwelling. On the building permit it was noted by City staff that a deck would have "potential setback problems." It was also noted on the building permit that proposed impervious surface should be removed to comply with the maximum 30 percent coverage. View from the fairway On the survey submitted with the building permit, the dwelling was shown 15.2 feet from the rear property line, at its closest point. After the dwelling was complete, a deck was constructed on the rear, abutting the fairway, unbeknownst to the City and without a building permit. The appellant removed that deck and commenced the construction of a new deck on the rear of the dwelling as shown in the picture above. Construction was started without the issuance of a building permit. The City received a complaint about the deck being constructed without a permit, so City staff inspected the site and issued a "Stop Work Order." This application for setback Variances followed. Issues: The appellant would like to construct a 14 foot by 20 foot (280 square feet) deck addition on the rear of the existing dwelling. The deck is proposed to maintain the following setbacks: L:\03 Files\03 Appeals\03-131 McCoy\cc report.doc 2 I Yard I Rear I Side - East Required 15' 10' Proposed 2.9' 6.7' The deck complies with the west side yard and front yard setbacks. Not only is the existing deck nonconforming, but also the amount of existing impervious surface exceeds 30 percent. Staff has calculated it to be approximately 37 percent. Decks open to the sky having open joints of at least ~ inch are exempted from the calculation of impervious surface, so the proposed deck would not increase hard surface. Removal of proposed impervious surface was a condition of granting the original building permit. Staff would like to see impervious surface in excess of 30 percent be removed from the site, since it was condition of the original building permit. The appellant is also proposing to encroach 7.1 feet into the 10 foot drainage and utility easement that extends the length of the rear property line, In conjunction with the variance application, the appellant is requesting to enter into a Private Use of Public Property Agreement with the City to allow for the encroachment into the easement. If this appeal were overturned, the City Council would then have to take action on this agreement. However, at this time, the City Council is not required to do so. In a Planned Unit Development (PUD) standard Zoning Ordinance setbacks may be modified. In this case, the City Council approved an amendment to the PUD "to reduce the rear yard setback of Yz acre and 1/3 acre homesites from 25 feet to 15 feet and villa homesites from 20 feet to 5 feet, for lots located adjacent to the golf course fairways." Hence, this property has already been granted a rear yard setback Variance to be 10 feet closer to the rear property line than the standard setback. The existing dwelling has already taken advantage of that relief. Variance HardshiD Findinas: Section 1108.400 of the Zoning Ordinance states that the Board of Adjustment may grant a Variance from the strict application of the provisions of the zoning ordinance, provided that: 1. Where by reason of narrowness, shallowness, or shape of a lot, or where by reason of exceptional topographical or water conditions or other extraordinary and exceptional conditions of such lot, the strict application of the terms of this Ordinance would result in peculiar and practical difficulties or exceptional or undue hardship upon the owner of such lot in developing or L:\03 Files\03 Appeals\03-131 McCoy\cc report. doc 3 using such lot in a manner customary and legally permissible within the Use District in which said lot is located. The shape of the lot did not preclude the original property owner from developing the property for a single family dwelling, a legally permissible use within The Wilds PUD. The lot has ample buildable area, so the strict application of the setback requirements in conjunction with the lot shape did and does not create practical difficulties. Moreover, in 1994, the property was granted a rear yard setback modification to permit a 15 foot rear yard setback, rather than the 25 foot rear yard setback. The existing dwelling complies with the required 15 foot rear yard and 10 foot side yard setbacks. The appellant contends that the property is an oddly shaped lot. The property is not a traditional rectangle, but it still accommodated a large dwelling on the property. It is not an undue hardship to not have a 14 foot by 20 foot deck. The appellant could construct a small balcony off the existing door to allow access to the rear and side yard. 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 upon which the Variance requests are based are not peculiar to this site. All properties in residential use districts have to comply with minimum rear yard setbacks. The subject site is unique only in that it was allowed to have a 15 foot rear yard setback because it abuts the fairway of The Wilds. Furthermore, the only reason the Variances are requested is because the dwelling is much too large for the lot. This does not make a peculiar situation. It was noted on the building permit that there are "potential setback problems" for a future deck. The City acknowledged this fact so the contractor and/or property owner would be aware of the situation. More important, the door was located on the side of the dwelling for a reason. It is likely the builder/original original owner was aware that a deck could not be built because the dwelling was placed at the minimum required setback. The appellant argues that the subject site is unique because "the home and surrounding area consist entirely of upper bracket real estate, a condition that does not broadly apply to other developments in the Use District." The City Attorney does not believe the cost of surrounding homes relates at all to the uniqueness issue. The Comprehensive Plan states "City ordinances shaff be enforced by the City staff in an equitable and uniform manner." It appears as though L:\03 Files\03 Appeals\03-131 McCoy\cc report.doc 4 the appellant contends that the property should be treated differently because it is considered "upper bracket real estate." Discriminatory treatment is contrary to public policy. 3. The granting of the proposed Variance is necessary for the preservation and enjoyment of a substantial property right of the owner. The granting of rear and side yard setback Variances is not necessary for the preservation and enjoyment of a substantial property right of the owner. In 1995, the City issued a building permit for a single family dwelling, so the owner currently enjoys a substantial property right. The construction of a deck was noted as a problem. A deck is not typically an element of a reasonable use of the property. The City has denied setback Variances for deck additions in the past. A "reasonable use" is not based upon the individual property owner's desires. It is based upon the criteria that "but for" a Variance the property owner would not be permitted to use the property in any manner. Reasonable use does not mean a use that the property owner believes is reasonable. Moreover, City policy makers determine what the reasonable use by implementing the Comprehensive Plan and Zoning Ordinance. The appellant states that the Variances are for an "ordinary deck" of "minimum reasonable size." There is a question as to what is an ordinary deck on a dwelling with a 3,641 square foot building footprint. A deck that is attached to the dwelling is typically considered an extension of the living space. In this case, the "ordinary deck of minimum reasonable size" was converted to roofed/enclosed living space. To reiterate, the previous owner utilized what could be dedicated to a deck as living space. There is no additional buildable area remaining to build a deck. A review of dwelling footprints in the immediate vicinity indicates the subject property has the one of the largest homes on Fox Run and Fox Trail, with a footprint of 3,641 square feet. Of the 13 existing dwellings, only four are more than 3,000 square feet, including the attached garage. The remaining nine are less than 3,000 square feet. According to Scott County records, the largest footprint is 3,672 square feet and the smallest is 2,124 square feet. 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. L:\03 Files\03 Appeals\03-131 McCoy\cc report.doc 5 It does not appear as though the rear and side yard setback Variances will impair an adequate supply of light and air to adjacent property or negatively impact public safety, 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 rear and side yard setback Variances will unreasonably impact the character and development of the neighborhood by creating a new neighborhood rear yard setback along the golf course. The appellant argues that the inability to rebuild a reasonable size deck will "diminish and impair established property values. The sight of a 'walkout to nowhere' is an eyesore, and a small balcony within the setbacks would be proportionately grotesque." The existing door is not directly visible from the golf course. The lack of a 14 foot by 20 foot deck will not unreasonably diminish property values in the Fox Run/Fox Trail neighborhood. The dwelling is substantially larger than the majority of the homes in the vicinity, so Variances for the deck will provide the property owner with more rights than adjacent property owners. 6. The granting of the proposed Variance will not be contrary to the intent of this Ordinance and the Comprehensive Plan. The purpose of the Zoning Ordinance is to "prevent overcrowding of land and undue concentration of structures and population by regulating the use of land and buildings and the bulk of buildings in relation to the land surrounding them." This purpose is implemented through required minimum yard setbacks. Variances to reduce the required minimum rear and side yard setbacks without a demonstrable hardship or difficulty are inconsistent with the purpose of the Zoning Ordinance. The appellant argues "the granting of the variance request will preserve the spirit and intent of the Prior Lake Zoning Ordinances by preserving a reasonable and customary use enjoyed by all properties in the neighborhood." The property owner already has the reasonable and customary use enjoyed by adjacent properties. 7. The granting of the Variance will not merely serve as a convenience to the appellant but is necessary to alleviate a demonstrable undue hardship or difficulty. L:\03 Files\03 Appeals\03-131 McCoy\cc report. doc 6 The Variances will serve as a convenience to the property owner, because a small balcony can be constructed without Variances. Requested relief is not necessary to alleviate a demonstrable undue hardship, but is based upon the appellant's desire to overbuild the property. The appellant contends that the Variances are a necessity to "rebuild a deck to reasonable proportion and in accordance with the home's value and uses planned for it when it was built." The survey submitted with the building permit for the dwelling did not consider a future deck addition, so it is assumed that one was not designed for the home. Furthermore, if a future deck was contemplated, the builder should have reduced the size of the dwelling footprint to comply with minimum setbacks. 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. Although the appellant did not construct the dwelling, they designed a deck that encroaches into the required rear and side yard setbacks. A balcony can be constructed on the east elevation to provide access to the rear and side yard. The appellant states that a deck is "a necessary part of a home of this character." If a deck were truly necessary to maintain the character of this dwelling, it would have been designed with the home. Instead it is an afterthought that does not comply with ordinance requirements. 9. Increased development or construction costs or economic hardship alone shall not be grounds for granting a Variance. Staff does not believe that increased development or construction costs or economic hardship are the basis for these requests. CONCLUSION: The appellant would like to construct a 14 foot by 20 foot (280 square feet) deck addition on property zoned PUD and SD. In order to do such, rear and side yard setback Variances are required. In conjunction with the Variance application, the appellant is also seeking approval of a Private Use of Public Property Agreement to allow the use of a portion of the existing 10 foot drainage and utility easement that extends along the rear property line. However, the City Council is not taking action on that request at this time. L:\03 Files\03 Appeals\03-131 McCoy\cc report.doc 7 The strict application of required setbacks does not pose a practical difficulty on the development of the property because: 1. The property owner currently has a reasonable use of the property. The existing single family dwelling complies with all required setbacks (but the impervious surface exceeds 30 percent of the lot area); and 2. A small deck or balcony can be constructed that meets all required setbacks. 3. The existing dwelling footprint occupies area that could have been used for a deck. The subject property has a substantially larger home than adjacent properties, and approving the requested setback Variances would provide an advantage to one individual property owner. Based upon the findings set forth in this report, staff recommends denial. The Planning Commission concurred with staffs recommendation. AL TERNA TIVES: The City Council has three alternatives: 1. Uphold the decision of the Planning Commission and deny the appeal. 2. Overrule the decision the Planning Commission and grant the appeal. In this case, the Council should direct staff to prepare a resolution with findings of fact approving the Variance. 3. Defer this item and provide staff with specific direction. RECOMMENDATION: Staff recommends Alternative #1. This requires a motion and second to adopt a motion and second to adopt a resolution upholding the decision of the Planning Commission to deny the requested Variance. However, should the City Council overrule the decision of the Planning Commission, the following conditions shall apply: 1. The resolution must be recorded at Scott County within 60 days of adoption. Proof of recording, along with the acknowledged City Assent Form, shall be submitted to the Planning Department prior to the issuance of a building permit. 2. The building permit is subject to all other applicable city, county, and state agency regulations. 3. The applicant shall enter into a Private Use of Public Property Agreement with the City to allow for the encroachment into the 10 L:\03 Files\03 Appeals\03-131 McCoy\cc report.doc 8 foot drainage and utility easement. No building permit will be issued until Council has approved this agreement. 4. Impervious surface shall be reduced to 30 percent. ATTACHMENTS: REVIEWED BY: 1. Resolution 03-XX 2. Appeal letter 3. Location map 4. Survey 5. APpellant'sJ..arrative and supporting information 6. U r 2.r::. Planning Commission meeting minutes Frank ~ Ci Manager L:\03 Files\03 Appeals\03-131 McCoy\cc report.doc 9 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 RESOLUTION 03-XX A RESOLUTION UPHOLDING THE PLANNING COMMISSION'S DECISION TO DENY A 12.1 FOOT VARIANCE FROM THE REQUIRED 15 FOOT REAR YARD SETBACK AND 3.3 FOOT VARIANCE FROM THE REQUIRED 10 FOOT SIDE YARD SETBACK FOR THE CONSTRUCTION OF A DECK ADDITION BE IT RESOLVED BY the City Council of the City of Prior Lake, Minnesota; FINDINGS 1. James Bates, on behalf of Tim and Jane McCoy, has appealed the Planning Commission's decision to deny rear and side yard setback Variances for the construction of 14 foot by 20 foot deck addition on property zoned PUD (Planned Unit Development) and SD (Shoreland Overlay District) at the following location, to wit; 2870 Fox Run NW, Lot 1, Block 2, The Wilds, Scott County, Minnesota. 2. The City Council has reviewed the application for the Variances as contained in Case #03-131PC, held a public hearing, and upheld the Board of Adjustment's decision hereon on December 1, 2003. 3. The City Council has considered the effect of the proposed variance upon the health, safety, and welfare of the community, the existing and anticipated traffic conditions, light and air, danger of fire, risk to the public safety, the effect on property values in the surrounding area and the effect of the proposed variance on the Comprehensive Plan. 4. The shape of the lot did not preclude the original property owner from constructing/developing the property for a single family dwelling, a legally permissible use within The Wilds PUD. The lot has ample buildable area, so the strict application of the setback requirements in conjunction with the lot shape did and does not create practical difficulties. Moreover, in 1994, the property was granted a rear yard setback modification to permit a 15 foot rear yard setback, rather than the 25 foot rear yard setback. The existing dwelling complies with the required 15 foot rear yard and 10 foot side yard setbacks. 1:\03 files\03 appeals\03-131 mccoy\uphold resolution.doc www.cityofpriorlake.com Phone 952.447.4230 / Fax 952.447.4245 1 5. The conditions upon which the Variance requests are based are not peculiar to this site. All properties in residential use districts have to comply with minimum rear yard setbacks. The subject site is unique only in that it was allowed to have a 15 foot rear yard setback because it abuts the fairway of The Wilds. Furthermore, the only reason the Variances are requested is because the dwelling is much too large for the lot. This does not make a peculiar situation. It was noted on the building permit that there are "potential setback problems" for a future deck. The City acknowledged this fact so the contractor and/or property owner would be aware of the situation. 6. The granting of rear and side yard setback Variances is not necessary for the preservation and enjoyment of a substantial property right of the owner. In 1995, the City issued a building permit for a single family dwelling, so the owner currently enjoys a substantial property right. The construction of a deck was noted as a problem. A deck is not typically an element of a reasonable use of the property. The City has denied setback Variances for deck additions in the past. A "reasonable use" is not based upon an individual property owner's desires. It is based upon the criteria that "but for" a Variance the property owner would not be permitted to use the property in any manner. Reasonable use does not mean a use that the property owner believes is reasonable. Moreover, City policy makers determine the reasonable use by implementing the Comprehensive Plan and Zoning Ordinance. 7. The granting of the rear and side yard setback Variances will unreasonably impact the character and development of the neighborhood by creating a new neighborhood rear yard setback along the golf course. 8. The purpose of the Zoning Ordinance is to "prevent overcrowding of land and undue concentration of structures and population by regulating the use of land and buildings and the bulk of buildings in relation to the land surrounding them." This purpose is implemented through required minimum yard setbacks. Variances to reduce the required minimum rear and side yard setbacks without a demonstrable hardship or difficulty are inconsistent with the purpose of the Zoning Ordinance. 9. The Variances will serve as a convenience to the property owner, because a small balcony can be constructed without Variances. Requested relief is not necessary to alleviate a demonstrable undue difficulty, but is based upon the applicant's desire to overbuild the property. 10. The contents of Planning Case #03-131 PC are hereby entered into and made a part of the public record and the record of decision for this case. 1:\03 files\03 appeals\03-131 mccoy\uphold resolution. doc 2 CONCLUSION Based upon the Findings set forth above, the City Council hereby upholds the decision of the Planning Commission denying the following Variances, as shown on Exhibit A- Certificate of Survey: 1. A 12.1 foot variance from the 15 foot rear yard setback required in The Wilds PUD. 2. A 3.3 foot variance from the 10 foot side yard setback required in The Wilds PUD. Passed and adopted this 1 sl day of December, 2003. YES NO Haugen Blomberg leMair Petersen Zieska Haugen Blomberg leMair Petersen Zieska {Seal} Frank Boyles, City Manager 1:\03 files\03 appeals\03-131 mccoy\uphold resolution.doc 3 ................~ ..,..........-..........-.-.-.,............ ~.."""_...,... CERTIFICATE OF SURVEY PREPARED FOR: TIM ~CCOY 2830 FOX RUN NW PRIOR LAKE. MN 55372 VNJEf SURVE'11NG CO.. P.A. ~ 16670 FRANKUN lRAIL SE sum: 230 PRIOR LAKE. MN 55372 (952) 447-2570 ~ ::~-~;j::~~_.. 1'1' I 1/ 1:( I: L \ 'I' Ii \. :UU' 20 . 0 10 20 I ~ . Scalol In r.et /0 r I I I I I l ----- ~ o + ..':>.,.. .:T ~ . .... ..... ~(/ ~ ---- 13.2. 94 ---;It l.lmlts of Dock sup porI po.,. N870 00' 00. W __,!\ ...,-1.' -~ EASEMENT? l! \ ~\ - - - L -t:: \ ~ \'UTll.ITY - - -- " I, "" ., Ill, --.... 8 DIlAINAGE ..... llJ 0 0 0 0 0 rt) r' 0 .I Z L_ 5' , /,"P~Op oJ, Dtel( OSto I I I "- "- "- " " /\ " \ \ , -:>; '\-------- - 15.9 _r//////" '" '" '" '" , '" , ~ HOUSE , , , , , , -:.:::!!':..~::~ ":./ ,"''/': .:.~ ~'. . 4' '<I'. , Concrete <I. Drlve'way . '4 <I .<1 <?'.4 'f/1.. ..... - -- I I ~ ~ - __/'- - 30.00 -- N850 00' OO"~_ ._---~ LEGAL DESCRIPTION AS PROV1DED~' Lot 1. Block 2. 11-tE 'MLDS. Scott County. Minnesota. Also showing all visible improvements and/or encroachments onto or off. from said property if any. as of this 2nd day of JUly. 2003. oor - . 7 2003 Rev. 10/6/03 To show proposed deck info. ..../ I her.by certify that this Certificate of Surwy was prepar.d by m. or under my direct supervision and that I am a duly Ucen.ed !.and Surveyor under the lawe of the Stat. of Nlnn..ota. ~& ~~-- lIlnn..ota Uc.... No. 10183 Dat.d thl.-1!:I.!:i.of J (J I ~ 2003 FILE NO. 9707 BOOK 2311 PAGE 76 . DENOTES IRON MONUMENT FOUND o DENOTES -IRON MONUMENT SET AND MARKED BY MINNESOTA UCENSE No.101BJ .. ,.. -. . ...~ - EXHIBIT A HUEMOELLER, BATES & GONTAREK PLC ATTORNEYS AT LAW 16670 FRANKLIN TRAIL P.O. BOX 67 PRIOR LAKE, MINNESOTA 55372 (952) 447-2131 Fax: (952) 447-5628 Writer's email address:idb!a2oriorlakelaw.com OCT 2 8 2003 .J ". ,'" .- JAMES D. BATES ALLISON J. GONTAREK BRYCE D. HUEMOELLER October 28, 2003 Mr. Donald R. Rye Prior Lake Planning Director 16200 Eagle Creek Avenue Prior Lake MN 55372 Re: Tim and Jane McCoy - Application for Variance Case File 03-122 Dear Mr. Rye: This letter is notice of appeal to the Prior Lake City Council from the October 27, 2003, action by the Planning Commission denying the McCoys' variance application for construction of a deck on their property. Please forward me copies of the Planning Commission's minutes and any further staff reports prepared for the City Council meeting as they become available. Thank you for your assistance. M::' James D. Bates JDB:bj cc: Tim and Jane McCoy _ocation VIa) '~or v1cCoy Variances The Wilds Fairway lilt/LOS ~ ~kllJtYtvlllt ~ \\ ~ 300 I o ~ ~~ IL~ ~/\ ~ICOS R~~ -i- / -------) \ c~- ~ -~ ~j I ~\ I 300 Feet I + CERTIFICATE OF SURV!Y PREPARED FOR: TIM ~cCOY 2830 FOX RUN NW PRIOR LAKE. MN 55372 VNJ.E( SURVE'I1NG CO.. P.A. 16670 FRANKUN TRAIL SE SUI1E 230 PRIOR LAKE. MN 55372 (952) 447-2570 10 r t I I I I l ~ o + .'),.-. " ~ 20 0 I I p--- -- ~' Scale In 10 , ~ \'UTllITY - - -- -... -... .-s:>v ~ J limit. of Osck sup porI ~ potts N 87 000' 00. W __,!\ . -t/'-. - - EASEMENT2 ti \ ~\ IV, 67 --- -t . \ 5' , rPIiOp ....;; DE:Ck OSE:D I 1 I ---- 132. 94 8 ORAl NAG E - -- ..... I I I I I I I I I , I //7;'.'-0/"0.' , . " " " " \ /\ /' \ \ / -:>, ..' "', .. .' \.' . " . C oncrer. " fl" '4' Orlv.way' h4' .<1 ..d .' \ . '. ' <?4 \' , " \~ ~ .'" , '4 / . .. ' . ~..... , , , / GARAGE / / / '<". / , / / , , , . .... .... ./ .... .'" /' .... .....,....c~~..?_"': m I N I <t I I J5 \ \ \ " '- ..... -... I I ~ __;;>'--30.00 -- 1'1850 00' OO"E --- - -- ~ LEGAL DESCRIPTION AS PROVlDED~: Lot 1. Block 2. ll-iE 'MLDS, Scott County, Minnesota. Also showing 011 visible improvements and/or encroachments onto or off, from sold property if any, os of this 2nd day of July, 2003. ~.-:~-2~;~~L~~.. -' !, i I L' I r ( : r '~ OOT - ., 2003 Rev. 10/6/03 To show proposed deck Info. .._----~~.- -_.:-,,,,/ \ I l.II 0 0 b 0 0 '"l r~ 0 / Z L_ I I I I I ~ :':-'S~ 9-':'r""'-'- // , / , / / / , , HOUSE , , , , .- .~,:::!~:..~::."';-~/ //.... /< .J I hereby certify that thl. c.rtlflcate of Surwy was prepared by me or und.. my dlract supervlslan and that I am a duly Ucensed Land Surw~ under the Ian of the Stat. of Minnesota. ~~LJcf) ~ Minnesota Ucense No. 10183 Dated th......I!:l.!i-ot Jll {" FILE NO. 9707 BOOK 238 PAGE 76 -' .---.--...-- . DENOTES IRON MONUMENT FOUNO o DENOlES IRON MONUMENT SET AND MARKED BY t.lINNESOT1. UCENSE NO.10183 ':1' ,\ ! ('., .U U' 20 I I 'e.t 2003 SURVEY APPLICATION OF TIM AND JANE McCOY FOR SIDE AND REAR SETBACK VARIANCES AND APPROVAL OF AGREEl\1ENT FOR PRIVATE USE OF PUBLIC PROPERTY Background In May of this year, Tim and Jane McCoy bought a detached single family home at 2830 Fox Run, which abuts the fifth fairway of The Wilds golf course in the Wilds community of Prior Lake. The home had been vacant for several months and McCoys purchased it following foreclosure by the mortgage company. McCoys have made substantial improvements to the house, to bring it up to the quality standards within the neighborhood, and have made it their home. The subject of their variance application is a need to replace a large, deteriorated deck with a new, much smaller one. McCoys had inspected the property before the purchase and understood the house would need substantial additional investment because ofits condition. Although construction had been finished in 1995 and the original certificate of occupancy issued in October of 1998, the previous owners had seriously neglected the property and this, coupled with the period of vacancy, left the house in a sorry state. As soon as they closed on the property the McCoys began cleaning up and improving the home. To date they have spent more than $300,000.00 in the process. In the course of their work they found the existing deck, which extended the entire back side of the home (please see attached photo sheet), was rotting and needed to be replaced. They removed the bad footings and most of the existing deck, and put in the footings and support posts for a much smaller replacement, in the reasonable belief that the original home and deck had been inspected and approved as being in compliance with the Wilds P.U.D. and applicable ordinances. At this point, though, it was brought to McCoys' attention that no original permit had been issued to construct the original deck and that there were potential setback problems, even with the smaller replacement. McCoys was surprised and dismayed at this development but stopped work on the deck and immediately arranged to have the property surveyed. In discussing the survey results and their plans with the Prior Lake City Engineering and Planning Departments, McCoys have found that in order to build a deck of any reasonable size they will need variances from the 15-foot rear yard setback applicable to lots in The Wilds that abut on golf course fairways, and from the 10- foot side yard setback. The house was built to have a deck, with a walkout door on the second level. The original building permit file references decks "by future permit" and notes possible setback problems, since the house alone was close to the rear yard setback line. McCoys have APPLICANT'S NARRATIVE reduced the planned deck size to 14 by 20 feet, which they believe is the minimum reasonable under the circumstances. To deny the McCoys the ability to replace a deck on a home of this scale would seriously compromise not only the McCoys but also the neighborhood in general. Legal Variance Standard By statute, Minnesota cities have authority to grant variances in cases of "undue hardship," which exists in cases where the property in question cannot be put to a reasonable use if used under conditions allowed by the official controls, the plight of the landowner is due to circumstances unique to the property not created by the landowner, and the variance, if granted, will not alter the essential character of the locality. Economic considerations alone shall not constitute an undue hardship if reasonable use for the property exists under the t~UJ.1S of the ordinance. Minnesota Statutes Section 462.357 Subd. 6(2). The Minnesota Court of Appeals has on several occasions been called on to interpret the phrase "cannot be put to a reasonable use." It has repeatedly said, most recently in April of 2003, that this means only that the landowner would like to put the land to a reasonable use but that the proposed use is prohibited under the strict provisions ofthe zoning code. The court has said this language does not mean a variance can only be granted where there is no reasonable use of the property at all without the variance, because in that case the Minnesota Constitution would compel a variance regardless of what the statute said. The variance applied for in this case clearly falls within the Court's definition of "undue hardship." Criteria in the Prior Lake Ordinance Based on the nine criteria in the Prior Lake ordinances used to evaluate variance requests, the McCoys should not be prevented from replacing the deck on their home. It is only reasonable to grant them the ability to replace, at the smallest reasonable size, the deck a home of this character requires. 1. Strict application of the ordinance would result in peculiar and practical difficulties or exceptional or undue hardship in developing or using the lot in a customary and legally permissible manner, because of the narrowness, shallowness, or shape of the lot. McCoys' lot is an oddly shaped platted lot of record in a neighborhood of upper bracket homes. The homes are large and placed strategically to incorporate views of the golf course and the surrounding natural areas. When McCoys purchased the house, there was a large deck attached to the rear, overlooking the fifth fairway. Mr. McCoy, being a diligent .. -2- homeowner, dismantled the deck with the intent of replacing it with a smaller, more securely built structure. The home was designed and built to include a deck, a necessary and nearly universal feature of single family homes in the immediate neighborhood, and the City's p,"-uuit file anticipated construction of a deck. By strict application of the terms of the Ordinance the McCoys are now faced with the peculiar and practical difficulty of being unable to have any reasonable deck at all. McCoys propose that if the requested variance is granted, the attached Agreement for Private Improvement of Public Property between McCoys and the City be executed. As part of this variance request, we respectfully ask that this Agreement be approved. 2. Conditions applying to the structure or land in question are peculiar to the propC;.L tj or immediately adjoining property, and do not apply, generally, to other land or structures in the Use District in which the land is located. Although a deck plan was not included in the survey prepared for the original building permit, notes in the City's permit file contemplated construction of a deck extending from the upper level, and anticipated the potential setback problems given the size of the house relative to the lot size. The home and surrounding area consist entirely of upper bracket real estate, a condition that does not broadly apply to other developments in the Use District. The McCoys' lack of a reasonable deck on a home of this scale significantly impacts the neighborhood. The McCoys have mitigated the peculiar challenges of the placement of the home on the lot by reducing the size of the proposed deck to the minimum width (14 feet) that will reasonably accommodate a standard patio table and chairs. It is also worth noting that on its lower level the house has only lookout windows, so a patio below the planned location of the deck would have difficult access and would block views from inside the house. 3. The granting of the proposed variance is necessary for the preservation and enjoyment of a substantial property right of the owner. Without the requested variances, the McCoys have an exit that drops a full story and creates a safety issue. Resolving this problem within City setback requirements would allow no more than a small balcony at the side of the house, instead of an ordinary deck from which McCoys could enjoy the expansive views ofthe golf course and surrounding area behind the house. They have children and grandchildren who visit often, and reasonably expect to be able to entertain guests in their home. Denial of their ability to rebuild a deck of minimum reasonable size is a denial of a substantial property right. 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 public safety. ... -3- Allowing McCoys to rebuild the deck adjacent to the golf course fairway will in no way affect the supply of light and air to any adjacent property, or the views from other neighboring properties. No additional congestion will result from allowing McCoys to rebuild the deck, nor will additional danger of fire or compromise of the public safety result. 5. Granting the variances will not unreasonably affect the character and development of the neighborhood, unreasonably dirnini~h or impair established prop,. lJ values in the surrounding area, or in any other way impair the health safety, and comfort of the area. McCoys' inability to rebuild a reasonable deck will diminish and impair established property values. The sight of a "walkout to nowhere" is an eyesore, and a small balcony within the setbacks would be proportionately grotesque. Allowing McCoys to rebuild the deck as proposed would be more likely to increase, rather than decrease, property values in the area, and will preserve the high standards already in place. 6. Granting the proposed variances will not be contrary to the intent of this Ordinance and the Comprehensive Plan. Because the proposed deck abuts an open area, a golf course fairway that is expected to remain open, the granting of the variance request will preserve the spirit and intent of the Prior Lake Zoning Ordinances by preserving a reasonable and customary use enjoyed by all properties in the neighborhood. 7. Granting the variances will not merely serve as a convenience to the applicants but is necessary to alleviate a demonstrable undue hardship or difficulty. The variances requested are not a convenience but a necessity. McCoys have minimized the deck size and are replacing an unsafe and much larger structure. The granting of variances is necessary in order for McCoys to rebuild the deck to reasonable proportion and in accordance with the home's value and the uses planned for it when it was built. 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. McCoys had no part in the original construction of the home and purchased the property in good faith with the reasonable belief that the existing deck had been approved and could be replaced. They believed they could restore the home to a neighborhood asset rather than a liability, with a smaller deck that is a necessary part of a home of this character. 9. Increased development or construction costs or economic hardship alone " -4- shall not be grounds for granting a variance. The variance request is not an economic issue but rather one offull reasonable use and enjoyment of property. While the McCoys believe the value of the home would be reduced without a reasonable deck, this variance request comes about because of their wish to use their newly acquired home for their enjoyment and that of their family and guests. Based on the Prior Lake ordinances and Minnesota legal principles that guide the variance application process, we believe the Planning Commission should find as follows: 1. Strict application of the Prior Lake Zoning Ordinances will result in peculiar and practical difficulties with respect to Tim and Jane McCoy's property by denying them the ability to rebuild a deck. This will preclude the preservation and enjoyment of their property rights. 2. The peculiar and practical difficulties result from the circumstances unique to the property because of the shape and size of the lot and the approved placement of the house on the lot during original construction. 3. The peculiar and practical difficulties are caused by the provisions of the Prior .. Lake Zoning Ordinances and are not the result of the actions of the owner. The owners' proposed use of the land is reasonable and the strict application of the ordinances would preclude such reasonable use. 4. The requested variances preserve 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. On behalf of Mr. and Mrs. McCoy, we respectfully request that the Planning Commission approve: (1) the requested variance from the rear year setback, (2) the requested variance from the side yard setback, and (3) the Agreement for Private Improvement of Public Property. We appreciate your consideration. James D. Bates, for Huemoeller, Bates & Gontarek PLC Attorneys for Tim and Jane McCoy 16670 Franklin Trail SE Prior Lake, MN 55372 (952) 447-2131 (952) 447-5628 fax .. -5- McCoy Home - Front View Rear View Showing Original Deck Correspondence L\TEMPLA TE\FILEINFO.DOC ilP~ t~~ 16200 Eagle Creek Avenue S.E. u~~ Prior Lake, MN 55372-1714 ~slJ January 28, 2004 Huemoeller, Bates & Gontarek PLC Julie Deutsch, Senior Legal Assistant 16670 Franklin Trail SE P. O. Box 67 Prior Lake, MN55372 RE: Private Use of Public Property Agreement 2830 Fox Run NW Dear Julie: Enclosed is a copy of the City Council Resolution 04-05 in the above matter. thought you might like this for your files. Sincerely, _ G~UMe C. M. Carlson Senior Planning Secretary Ene. ~ L:\03 Files\03 Appeals\03-131 McCoy\ReslwMlw.cityofpriorlake.com Phone 952.447.4230 / Fax 952.447.4245 HUEMOELLER, BATES & GONTARE~~(.:.:::-r1' ..::-:, ., '';'_' ATTORNEYS AT LAW iii"IH.s ~ L5 u \./1 I! I. '- L.. 16670 FRANKLIN TRAIL ; L);j · P.O. BOX 67 ! ,( ... 8 Lm4 PRIOR LAKE, MINNESOTA 55372 ; I \ \ ~ - (952) 447-2131 lu lil 'j' Fax: (952) 447-5628 f ,L-/ , E-mail: oriorlakelawllVintel!1'aonline.com j JAMES D. BATES ALLISON J. GONTAREK BRYCE D. HUEMOELLER January 7,2004 Scott County Recorder Scott County Government Center 200 Fourth Avenue West Shakopee, MN 55379 RE: Lot 1, Block 2, The Wilds Dear Recorder: Enclosed for filing, please find the following: 1. Certified copy of City of Prior Lake Resolution 03-209; 2. Permit Agreement for Private Use of Public Property; 2. A check for $40 for the recording fees. Please return the documents to our office when the recording procedure has been completed. Thank you. Sincerely yours, jd Enclosures cc: Cynthia R. Kirchoff City of Prior Lake HUEMOELLER, BATES & GONTAREKPLC BY v.Q._~_ l ~~ ""- ~ Deutsch, secy. 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 January 9,2004 James Bates Huemoeller, Bates & Gontarek PLC 16670 Franklin Trail SE P. O. Box 67 Prior Lake, MN 55372 RE: Private Use of Public Property Agreement Resolution 2830 Fox Run NW Dear Mr. Bates: Enclosed please find Resolution 03-05 approving the above referenced agreement. If you have any questions, please feel free to contact me. Sincerely, ~-A-iX~ Cynthia R. KirchO~p J Planner Enclosure " www.cityofpriorlake.com Phone 952.447.4230 / Fax 952.447.4245 :t~~ -. ... - .:;j; ,; jk~ ",Op\lf ~U ~ January 6, 2004 James Bates Huemoeller, Bates & Gontarek PLC 16670 Franklin Trail SE P. O. Box 67 Prior Lake, MN 55372 RE: Private Use of Public Property Agreement 2830 Fox Run NW Dear Mr. Bates: Enclosed please find two copies of the above referenced executed document. The original must be recorded at Scott County and the other is for your records. If you have any questions, please feel free to contact me. Sincerely, ~- Cynthia R. Kircho , Planner .. Enclosures , www.cityofpriorlake.com Phone 952.447.4230 / Fax 952.447.4245 /~'''' / Oft.."" """', .. / '..,.,.",.,',;",....;. < . ..,."., ~'. ,..., . ',r,;"?" ,..__, ~ \ if E-. ;i.::' , '7 \ !~tt:ttp.~ ~l ;, U'~;c t'l'll ; ;~ i ','_. ~ " \"<~~~/' 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 January 2, 2004 James Bates Huemoeller, Bates & Gontarek PLC 16670 Franklin Trail SE P. O. Box 67 Prior Lake, MN 55372 Dear Mr. Bates: Attached is a City Council Agenda and Staff Report for the January 5, 2004, City Council meeting. The meeting will begin at 7:00 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, Lonnie Lar~on Connie Carlson Planning Secretary Enclosure 1:\03 files\03 appealsl03-131 mccoylmeetlrcc.doc . f . J k WWw.C1tyOpnorae.com Phone 952.447.4230 / Fax ':152.447.4245 ,....;..~ .__....:__.,."....._................ ..""- l"':'w"_"':~__>..:";"'~__..~"""",-~' .~. '.",,~' h. ",' __~'--'..,;___....... w-'.....~.........~ft_--.;,-.:-........-:-..:..:.....6i--W.......--........____.......... December 29,2003 James Bates Huemoeller, Bates & Gontarek PLC 16670 Franklin Trail SE P. O. Box 67 Prior Lake, MN 55372 RE: Appeal of McCoy Variances Case No.: 03-131 Dear Mr. Bates: This letter is to officially inform you that on December 15, 2003, the City Council reversed the Planning Commission's decision to deny a rear yard setback Variance and upheld the Planning Commission's decision to deny a side yard setback Variance for the construction of a deck addition on property located at 2830 Fox Run NW. Enclosed please find two copies of Resolution 03-209 reversing the Planning Commission's decision and approving your appeal for the rear yard setback Variance. One copy is to be recorded at Scott County and the other is for your records. I have also enclosed a copy of Resolution 03-210 upholding the Planning Commission's decision to deny the side yard setback Variance. In addition, the enclosed Assent Form must be signed and returned to my attention prior to the issuance of any required permits. If you have any questions regarding this letter, please feel free to contact me. Sincerely, .,..- ~ r:J . n~, ffJ c.coJ' ~L/ ,.- {2 ',' . Cynthia R. Kirchotf, .: / ' Planner Enclosure c: Tim & Jane McCoy www.cityofpriorlake.com Phone 952.447.4230 / Fax 952.447.4245 CITY OF PRIOR LAKE 16200 EAGLE CREEK AVENUE SE, PRIOR LAKE, MN 55372 ~~& Date: December 12,2003 Number of pages including cover sheet: Cb To: Suesan Pace From: Cynthia Kirchoff, AICP From: Planner City of Prior Lake 16200 Eagle Creek Avenue SE Prior Lake, MN 55372 Phone: Phone: (952) 447.9813 Fax phone: 612/338.7858 Fax phone: (952) 447.4245 cc: REMARKS: o Urgent ~ For your review 0 Reply ASAP o Please comment Hi Suesan. Attached please find the Private Use of Public Property Agreement for the McCoy's deck and a letter from Jim Bates requesting changes. Please advise. Thanks. PERMIT AGREEMENT FOR PRIVATE USE OF PUBLIC PROPERTY THIS AGRPPM:ENT is made and entered into this 15th day of December, 2003, by and between the CITY OF PRIOR LAKE, Minnesota, a municipal corporation (hereinafter referred to as "City"), and TIM AND JANE McCOY, (husband and wife) (hereinafter referred to as "Owners"). RECITALS WHEREAS, Owners are the fee owner of a tract ofland in Scott County, Minnesota, located at 2830 Fox Run NW, and legally described as follows: Lot 1, Block 2, The Wilds (hereinafter referred to as "the Permit Property"); and WHEREAS, the plat of The Wilds dedicated an easement for drainage and utility purposes to the City over the northerly 10 feet of Lot 1, Block 2, The Wilds; and WHEREAS, the portion of the deck serving Owners' Property encroaches on said easement described on Exhibit A attached hereto (the encroached portion ofthe property hereinafter referred to as the "Permit Property"); and WHEREAS, Owners wish to use the Permit Property for a deck encroachment; and WHEREAS, Owners have requested the City to authorize continued use of the Permit Property for deck encroachment purposes; and L:\03 Files\03 Appeals\03-131 McCoy\Private Use Agreement.DOC 1 WHEREAS, such continued use of the Permit Property is not inconsistent with current use of the property by the City and the public; and WHEREAS, the City may in the future desire to use the Permit Property for other purposes which are not consistent with Owners' use of the Permit Property, and therefore the City intends to retain all of its right, title, and interest in the Permit Property; NOW, THEREFORE, the parties agree as follows: 1. Permit. Owners shall be permitted to use the Permit Property for deck encroachment purposes at Owners' sole expense and risk, and with full knowledge that the City may, upon notice as provided herein, require Owners' deck to be removed from the Permit Property at any future date, at Owners' sole expense. The Permit Property must be kept open to the public use at all items, and no fence or other obstruction may be placed on the Permit Property without the prior written approval ofthe City, which may be given or withheld in the sole discretion of the City. 2. Maintenance of Permit Propertv; Modification. Owners shall maintain the Permit Property in good condition at all times, at their sole cost and expense. If Owners fail to do so, the City may cause the necessary repair or maintenance to be done at Owners' cost. If Owners fail to pay the City for such costs, the City may assess the costs against Owners' Property. Owners shall not make any modifications to the drainage and utility easement or otherwise modify the Permit Property without the prior written approval of the City, which may be given or withheld in the sole discretion ofthe City. 3. Termination. In the event the City desires to use the Permit Property for a purpose which is inconsistent with deck encroachment use by Owners, to be determined in the City's sole discretion, or in the event Owners fail to comply with any requirement of this Agreement within sixty (60) days after receiving a notice from the City requesting such compliance, the City through its City Manager may terminate this Permit Agreement by giving ninety (90) days written notice of termination to Owner by certified mail at the following address: 2830 Fox Run NW, Prior Lake, MN 55372. Such notice may, at the City's option, require Owners to completely remove the deck from the Permit Property within said ninety (90) day notice period, including all debris. If this Permit Agreement is terminated by the City as provided herein, Owners will be solely responsible for all costs and expenses related to construction of a deck which is located on Owners' Property, in accordance with all City Ordinances. If Owners fail to remove the deck as required by a proper notice of termination, the City may cause the removal to be done and the costs of such work shall be paid by Owner. If Owners fail to pay the City for such costs, the City may assess the costs against the Owners' Property. L:\03 Files\03 Appeals\03-131 McCoy\Private Use Agreement.DOC 2 4. Consent to Special Assessment. Owners hereby acknowledge and consent to the City's right to specially assess any costs incurred by the City for any repair or maintenance performed pursuant to Paragraph 2 of this Permit Agreement, or any costs incurred by the City to remove Owners' deck from the Permit Property pursuant to Paragraph 3 of this Permit Agreement. Owners waive any right to protest or appeal any special assessment levied pursuant to this Permit Agreement. 5. Future Development. Owners understand and acknowledge that the City may utilize the Permit Property at some future date and in the sole discretion of the City. In the event the City undertakes such development, and if this Permit Agreement is not terminated by the City as provided above, Owners agree to cooperate to the extent practicable to use its best efforts to accommodate City's use of the Permit Property for the purposes stated herein. However, Owners specifically acknowledge City has the absolute right to terminate this agreement or otherwise require Owners to discontinue Owners' use ofthe Permit Property, in which case Owners may be denied access to Owners' property. If such should occur, Owner will have no recourse against City, including actions for diminution in value or a taking without compensation. 6. Indemnitv. Owners shall defend, indemnify, and hold harmless the City and its employees, subcontractors, attorneys, agents, and representatives from and against all claims, damages, losses, costs and expenses, including attorney's fees, which may be incurred by or asserted against the City or for which the City may be held liable, which arise out of or result from use of the permit Property for deck encroachment purposes, including but not limited to the maintenance, repair or removal of Owners' deck, except liability caused solely by the negligence ofthe City. 7. Insurance. As long as this Permit Agreement is in existence, Owners shall maintain a general liability insurance policy which provides coverage for the Permit Property for any damage to property of others or injuries to persons. Said insurance policy shall provide coverage on an occurrence basis in an amount no less than One Million Dollars ($1,000,000), and shall include contractual liability coverage to provide coverage for the indemnification provision in Paragraph 6 above. Said policy shall name the City as an additional insured, and shall contain a clause which provides that the insurer will not cancel, non-renew, or materially change the policy without first giving the City thirty (30) days prior written notice. Owners shall provide the City with a Certificate of Insurance for said policy which specifically details the conditions of this Paragraph 6. 8. Waiver of Claims. Owners acknowledge City's ownership ofthe Permit Property and knowingly waive any and all claims against the City related to Owners' use of the Pennit Property, including but not limited to claims of abandonment, diminution in value, takings and contractual claims arising out of this Permit Agreement, except any claims which are the result ofthe sole negligence or willful misconduct of the City or its employees or agents. L:\03 Files\03 Appeals\03- 13 I McCoy\Private Use Agreement.DOC 3 9. Condition ofPropertv. Owners accept the Permit Property "as is" and the City makes no warranties regarding the conditions of the Permit Property or the suitability of Permit Property for Owners' purposes. 10. Binding Effect. This Permit Agreement shall run with the land and shall be binding on and inure to the benefit of the parties hereto, their heirs, successors, or aSSIgns. 11. Whole Agreement: Modifications. This Permit Agreement contains all of the terms and conditions relating to the permit granted herein, and replaces any oral agreements or other negotiations between the parties relating to the permit. No modifications to this Permit Agreement shall be valid until they have been placed in writing and signed by all parties hereto. 12. Recording. Owners shall cause this Permit Agreement to be recorded in the Office of the Scott County Recorder at their cost and expense. IN WITNESS WHEREOF, the parties have executed this Permit Agreement as of the date first above written. CITY OF PRIOR LAKE OWNER(S) By: Jack G. Haugen, Mayor By: Frank Boyles, City Manager STATE OF MINNESOTA) )ss COUNTY OF ) The foregoing instrument was acknowledged before me this _ day of 20_, by Jack G. Haugen and Frank Boyles, The Mayor and City Manager, respectively of the City of Prior Lake, on behalf of the City of Prior Lake through authority granted by its City Council. Notary Public L:\03 Files\03 Appeals\03-131 McCoy\Private Use Agreement.DOC 4 STATE OF MINNESOTA) )ss COUNTY OF ) The foregoing instrument was acknowledged before me this 20-, by and c the and , respectively of (corporation/partnership). L:\03 Files\03 Appeals\03-131 McCoy\Private Use Agreement.DOC Notary Public day of , on behalf of the 5 DEC. 12.2003 3:19PM NO. 1463 P. 2 HUE MOELLER, BATES & GONT AREK PLC ATTORNEYS AT LAW 16670 FRANKLJN TRAIL P.O. BOX 67 PRIOR LAKE, MINNESOTA 55372 (952) 447-2131 Fax: (952) 447-5628 Writer's emaiJ address: idb({j)nriorlakelaw.com JAMES D. BATES ALLISON J. GONTAREK BRYCE D. HUEMOELLER December 12, 2003 Ms. Cynthia Kirchoff City of Prior Lake 16200 Eagle Creek Avenue Prior Lake, MN 55372 VIA FAX RE: McCoy Agreement with City Dear Cindy: I would like to request certain changes to the proposed agreement. In general, I want to be clear that, unlike other agreement situations where the city owns the property in question, this property is owned by the McCoys and the purpose of the agreement is to be sure the city can freely exercise the easement rights it has on and under the McCoys' property. Also, I would like the agreement to be clear that there may be circumstances in which removal of the deck is necessary only during construction of improvements and may be rebuilt after the work is done. In the first Recital, since the encroachment area is a part ofMcCoys' lot, I think deleting the language in parentheses after the legal description of the lot would avoid some potential confusion so that "Pennit Property" refers only to the encroachment area. In addition, I suggest the following changes. FOI the last "WHEREAS" clause: WHEREAS, the City may in the future desire to exercise its easement rights in ways that are not consistent witb Owners' use of the Permit Peoprty, and which may require temporary or permanent removal of Owners' deck from the Permit Property, and therefore the City intends to retain all of its easement rights on and under the Pennit Property; DEC. 12.2003 3:19PM NO. 1463 P.3 Ms. Cynthia Kirchoff December 12, 2003 Page 2 In Section 1 of the agreement itself, I ask that the first clause of the second sentence be deleted so the sentence begins with "No fence ..." Although I'm sure it isn't the intent of the clause, the first time I read it I envisioned members of the public using the deck. In the first sentence of Section 3, I ask that the word "permanent" be inserted before the word "purpose/' and that a second paragraph be inserted immediately after the first paragraph, along the following lines: In the event the City desires to make improvements on the Permit Property in exercise of its easement rights which require only temporary removal of Owners' deck, the City will, through its City Manager and in the manner described in the immediately preceding paIagraph, require Owners to remove all or such part of the deck as is deemed necessary in the sole discretion of the City, within said ninety (90) day period. When the City improvements are completed, the City will notify the Owners and they shall be pennitted to reconstruct their deck at their sole expense and in accordance with all City Ordinances and in accordance with the variance upon which this agreement is based. As I now read Section 3 again, I'm not sure I understand the last sentence of the first paragraph unless the word "not" was meant to be inserted before the word "terminated.~' I am not entirely comfortable with Section 5. Please consider the following: 5. Future Develooment. Owners understand and acknowledge that the City may make improvements to the Pennit Property in exercise of its easement rights for drainage and utility purposes at some future date and in the sole discretion of the City. (second sentence as is] However, Owners specifically acknowledge City has the absolute right to terminate this agreement or otherwise require Owners to temporarily discontinue their encroachment on the Permit Property if reasonably deemed necessary by the City for the full exercise of its easement rights. [last sentence as is] In the first sentence of Section 8, I ask that the words "ownership of' be replaced by "easement rights on and under." Please call to let me know if these suggested changes are acceptable. JDB:bj cc: Tim and Jane McCoy CITY OF PRIOR LAKE 16200 EAGLE CREEK AVENUE SE, PRIOR LAKE, MN 55372 ~E~ Date: December 15, 2003 Number of pages including cover sheet: To: Jim Bates From: Cynthia Kirchoff, AICP From: Planner City of Prior Lake 16200 Eagle Creek Avenue SE Prior Lake, MN 55372 Phone: Phone: (952) 447.9813 I Fax phone: 447-5628 Fax phone: (952) 447 -4245 I cc: REMARKS: o Urgent IZI For your review 0 Reply ASAP o Please comment Jim- Attached is a revised Private Use of Public Property Agreement. The agreement needs to be signed before the City Council can act on the item. I apologize about the last minute rush for a signature. Thanks. PERMIT AGREEMENT FOR PRIVATE USE OF PUBLIC PROPERTY THIS AGRFFMENT is made and entered into this 15th day of December, 2003, by and between the CITY OF PRIOR LAKE, Minnesota, a municipal corporation (hereinafter referred to as "City"), and TIM AND JANE McCOY, (husband and wife) (hereinafter referred to as "Owners"). RECITALS WHEREAS, Owners are the fee owner of a tract ofland in Scott County, Minnesota, located at 2830 Fox Run NW, and legally described as follows: Lot 1, Block 2, The Wilds (hereinafter referred to as "the Permit Property"); and WHEREAS, the plat of The Wilds dedicated an easement for drainage and utility purposes to the City over the northerly 10 feet of Lot 1, Block 2, The Wilds; and WHEREAS, the portion of the deck serving Owners' Property encroaches on said easement described on Exhibit A attached hereto (the encroached portion of the property hereinafter referred to as the "Permit Property"); and WHEREAS, Owners wish to use the Permit Property for a deck encroachment; and WHEREAS, Owners have requested the City to authorize continued use of the Permit Property for deck encroachment purposes; and C:\WINDOWS\Temporary Internet Files\OLK6IFl\Clean Private Use Agreement - McCoy.doc 1 WHEREAS, such continued use of the Permit Property is not inconsistent with current use of the property by the City and the public; and WHEREAS, the City may in the future desire to use the Permit Property for other purposes which are not consistent with Owners' use ofthe Permit Property, and therefore the City intends to retain all of its right, title, and interest in the Permit Property; NOW, THEREFORE, the parties agree as follows: 1. Permit. The City Council has granted the Owners of Lot 1, Block 2, Wilds a variance, subject to certain conditions, to permit the construction of a deck on the rear ofthe house. The support members necessary to construct the deck will encroach on the City's drainage and utility easement. Owners acknowledge and agree that the placement and construction of the deck is at Owners' sole risk, and with full knowledge that the City may, upon notice as provided herein, require Owners' deck to be removed from the Permit Property at any future date, at Owners' sole expense. The Permit Property must be kept open to the public use at all items, and no fence or other obstruction may be placed on the Permit Property without the prior written approval ofthe City, which may be given or withheld in the sole discretion of the City. 2. Maintenance of Permit Propertv; Modification. Owners shall maintain the Permit Property in good condition at all times, at their sole cost and expense. If Owners fail to do so, the City may cause the necessary repair or maintenance to be done at Owners' cost. If Owners fail to pay the City for such costs, the City may assess the costs against Owners' Property. Owners shall not make any modifications to the drainage and utility easement or otherwise modify the Permit Property without the prior written approval of the City, which may be given or withheld in the sole discretion of the City. 3. Termination. In the event the City desires to use the Permit Property for a purpose which is inconsistent with the Owners' deck encroachment, which determination will be in the City's sole discretion, or in the event Owners fail to comply with any requirement ofthis Agreement within sixty (60) days after receiving a notice from the City requesting such compliance, the City through its City Manager may terminate this Permit Agreement by giving thirty (30) days written notice of termination to Owner by certified mail at the following address: 2830 Fox Run NW, Prior Lake, MN 55372. Such notice may, at the City's option, require Owners to completely remove the deck from the Property legally described above within said thirty (30) day notice period, including all debris. If this Permit Agreement is terminated by the City as provided herein, Owners will be solely responsible for all costs and expenses related to removal of the deck on Owners' property. C:\WINDOWS\Temporary Internet Files\OLK61Fl\Clean Private Use Agreement - McCoy.doc 2 If Owners fail to remove the deck as required by a proper notice of termination, the City may cause the removal to be done and the costs of such work shall be paid by Owner. If Owners fail to pay the City for any costs related to removal of the deck as provided for herein, the City may assess the costs against the Owners' Property. 3.1 License. The Owners hereby grant City an irrevocable license to enter upon Owners' property for the purpose of removing the deck, in the event Owners fail to remove the deck. 4. Consent to Special Assessment. Owners hereby acknowledge and consent to the City's right to specially assess any costs incurred by the City for any repair or maintenance performed pursuant to Paragraph 2 of this Permit Agreement, or any costs incurred by the City to remove Owners' deck from the Permit Property pursuant to Paragraph 3 ofthis Permit Agreement. Owners waive any right to protest or appeal any special assessment levied pursuant to this Permit Agreement. 5. Future Development. Owners understand and acknowledge that the City may utilize th~P.ennitPrQpertyat.somefuture-date.andjJ;l the sole discretion of the City. lSlJl3"STITUrEBATE'S LANGUAGE As AMENDED!]-) the event the City undertakessuch-developmeIrt;arid ifthisPermffAgreement is not terminated by the City as provided above, Owners agree to cooperate to the extent practicable to use its best efforts to accommodate City's use ofthe Permit Property for the purposes stated herein. However, Owners specifically acknowledge City has the absolute right to terminate this agreement or otherwise require Owners to discontinue Owners' use of the Permit Property, in which case Owners may be denied access to Owners' property. Ifsuch should occur, Owner will have no recourse against City, including actions for diminution in value or a taking without compensation. [NOT APPLICABLE UNDER THESE CIRCUMSTANCES] 6. Indemnity. Owners shall defend, indemnify, and hold harmless the City and its employees, subcontractors, attorneys, agents, and representatives from and against all claims, damages, losses, costs and expenses, including attorney's fees, which may be incurred by or asserted against the City or for which the City may be held liable, which arise out of or result from use ofthe permit Property for deck encroachment purposes, including but not limited to the maintenance, repair or removal of Owners' deck, except liability caused solely by the negligence of the City. 7. Insurance. As long as this Permit Agreement is in existence, Owners shall maintain a general liability insurance policy which provides coverage for the Permit Property for any damage to property of others or injuries to persons. Said insurance policy shall provide coverage on an occurrence basis in an amount no less than One Million Dollars ($1,000,000), and shall include contractual liability coverage to provide coverage for the indemnification provision in Paragraph 6 above. Said policy shall name the City as an additional insured, and shall contain a clause which provides that the C:\WINDOWS\Temporary Internet Files\OLK61Fl\Clean Private Use Agreement - McCoy.doc 3 insurer will not cancel, non-renew, or materially change the policy without first giving the City thirty (30) days prior written notice. Owners shall provide the City with a Certificate of Insurance for said policy which specifically details the conditions of this Paragraph 6. 8. Waiver of Claims. Owners acknowledge City's easement rights on and under the Permit Property and knowingly waive any and all claims against the City related to Owners' use ofthe Permit Property, including but not limited to claims of abandonment, diminution in value, takings and contractual claims arising out of this Permit Agreement, except any claims which are the result of the sole negligence or willful misconduct ofthe City or its employees or agents. 9. Condition ofPropertv. Owners accept the Permit Property "as is" and the City makes no warranties regarding the conditions of the Permit Property or the suitability of Permit Property for Owners' purposes. 10. Binding Effect. This Permit Agreement shall run with the land and shall be binding on and inure to the benefit of the parties hereto, their heirs, successors, or aSSIgns. 11. Whole Agreement; Modifications. This Permit Agreement contains all of the terms and conditions relating to the permit granted herein, and replaces any oral agreements or other negotiations between the parties relating to the permit. No modifications to this Permit Agreement shall be valid until they have been placed in writing and signed by all parties hereto. 12. Recording. Owners shall cause this Permit Agreement to be recorded in the Office of the Scott County Recorder at their cost and expense. IN WITNESS WHEREOF, the parties have executed this Permit Agreement as of the date first above written. CITY OF PRIOR LAKE OWNER(S) By: Jack G. Haugen, Mayor By: Frank Boyles, City Manager C:\WINDOWS\Temporary Internet Files\OLK61FI\Clean Private Use Agreement - McCoy.doc 4 STATE OF MINNESOTA) )ss COUNTY OF ) The foregoing instrument was acknowledged before me this day of .20_, by Jack G. Haugen and Frank: Boyles, The Mayor and City Manager, respectively of the City of Prior Lake, on behalf ofthe City of Prior Lake through authority granted by its City Council. Notary Public STATE OF MINNESOTA) )ss COUNTY OF ) The foregoing instrument was acknowledged before me this ,20_, by and and , respectively of . on behalf ofthe (corporation/partnership). Notary Public C:\WINDOWS\Temporary Internet Files\OLK6IFl\Clean Private Use Agreement - McCoy.doc day of , the 5 CITY OF PRIOR LAKE 16200 EAGLE CREEK AVENUE SE, PRIOR LAKE, MN 55372 \~~ ~NES Date: December 11, 2003 Number of pages including cover sheet: I~ : / ~ To: Jim Bates From: Cynthia Kirchoff, AICP I From: Planner I City of Prior Lake I 16200 Eagle Creek Avenue SE Prior Lake, MN 55372 Phone: I Phone: (952) 447.9813 I Fax phone: 447.5628 I Fax phone: (952) 447.4245 Ice: REMARKS: o Urgent IZI For your review 0 Reply ASAP o Please comment Jim. Attached is draft of the Private Use of Public Property Agreement for the McCoys. Please review and let me know if you have any comments or questions. The agreement will need to be signed prior to the City Council meeting. The meeting packet was distributed without the legal description for the encroachment. Thanks. 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 December 11, 2003 HUEMOELLER, BATES & GONTAREK 16670 FRANKLIN TRAIL, SUITE 210 PRIOR LAKE MN 55372 Attached is a City Council Agenda and Staff Report for the December 15, 2003, City Council meeting. The meeting will begin at 7:00 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, Connie CarCson Connie Carlson Planning Secretary Enclosure - I:\deptwork\blankfrm\meetlrcc.doc www.cityofpriorlake.com Phone 952.447.4230 / Fax 952.447.4245 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 November 26,2003 Huemoeller, Bates & Gontarek Jim Bates 16670 Franklin Trail, Suite 210 Prior Lake, MN 55372 Attached is a City Council Agenda and Staff Report for the December 1, 2003, City Council meeting. The meeting will begin at 7:00 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, Connie Carfson Connie Carlson Planning Secretary Enclosure .. I:\deptwork\blankfrm\meetlrcc.doc www.cityofpriorlake.com Phone 952.447.4230 / Fax 952.447.4245 '.'AO.....'"".._, . w. .,.,.....~WI..}I....l&tot".:..:.....__....l. _"',_f(,."_",~,, .' ....:;:-,....",. .._.. _ "..,_.......-......~_._--'..'-;.....".__....;~...~..a:..~.~._ ""'.~-:..........a.I~..,....... "'.._.__._,,....... _ .................___.~ .....y.. ....".._".... ."" 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 October 30, 2003 James Bates Huemoeller, Bates & Gontarek PLC 16670 Franklin Trail SE P. O. Box 67 Prior Lake, MN 55372 RE: Appeal of McCoy Variances Case No.: 03-131 Dear Mr. Bates: On October 28, 2003, the City of Prior Lake received your appeal from the Planning Commission's decision to deny setback Variances for a deck addition on property located at 2830 Fox Run NW. This letter is to inform you that the application is complete. The public hearing for the appeal will be held by the City Council on December 1, 2003, at 7:00 p.m. or soon thereafter as possible at Prior Lake Fire Station No.1, 16776 Fish Point Road SE (southwest of the intersection of County Road 21 and Fish Point Road). A City Council agenda and report will be mailed to you on November 26,2003. If you have any questions regarding the appeal process, please feel free to contact me at 447-9813. Sincerely, ~b~L'~1 Cynthia r- Kirchoff, ~ Planner - c: Tim & Jane McCoy, 2830 Fox Run NW . - - www.cityofpriorlake.com Phone 952.447.4230 / Fax 952.447.4245 APPLICA'l'IO~S & APPLICA'l'lO~ YIA'l'ElUALS L:\TEMPLATE\FILEINFO.DOC HUE MOELLER, BATES & GONTAREK PLC ATTORNEYS AT LAW 16670 FRANKLIN TRAIL P.O. BOX 67 PRIOR LAKE, MINNESOTA 55372 (952) 447-2131 Fax: (952) 447-5628 Writer's email address:idb(a).oriorlakelaw.com OCT 2 8 2003 JAMES D. BATES ALLISON J. GONTAREK BRYCE D. HUEMOELLER October 28, 2003 rv1r. Donald R. Ryt: Prior Lake Planning Director 16200 Eagle Creek Avenue Prior Lake MN 55372 Re: Tim and Jane McCoy - Application for Variance Case File 03-122 Dear Mr. Rye: This letter is notice of appeal to the Prior Lake City Council from the October 27, 2003, action by the Planning Commission denying the McCoys' variance application for construction of a deck on their property. Please forward me copies of the Planning Commission's minutes and any further staff reports prepared for the City Council meeting as they become available. Thank you for your assistance. ~:;' James D. Bates JDB:bj cc: Tim and Jane McCoy Received of \-tL.La.-hl tJ-C~ rJ JoLL-tw. c.f- the sum of /:U.,l.J-{A"\TI..j- - t~ ~ r07 (LD for the purpose of w~ ~NE~ $ IS,CO CITY OF PRIOR LAKE 16200 EAGLE CREEK AVE SE PRIOR LAKE, MN 55372 (952) 447-4230, FAX (952) 447-4245 RECEIPT # 45713 DATE: [0. oq'O?:J (yc.>n 1 LJ-r- cJc. _' p LQ, Qollars Ap D 0 {]1 (; i---e.J2- . 1'--1\ (i (1 V 7f u.. O-n.. GL.tl ~ 07:J - 19Q- Invoice # -~ (JL, , URec pt Clerk for me ~rior L ke HUEMOELLER, BATES & GONTAREK PLC ATTORNEYS AT LAW 16670 FRANKLIN TRAIL P.o. BOX 67 PRIOR LAKE, MINNESOTA 55372 (952) 447-2131 Fax: (952) 447-5628 E-mail: hbg(a2Driorlakelaw.com JAMES D. BATES ALLISON J. GONTAREK BRYCE D. HUEMOFT .TFR E-mail ofsender:jdb@priorlakelaw.com October 29, 2003 Cynthia Kirchoff City of Prior Lake Planning Department 16200 Eagle Creek Avenue SE Prior Lake, MN 55372 RE: Tim B. McCoy, Sr. and Jane M. McCoy Dear Ms. Kirchoff: Enclosed is a check in the amount of$75 for the appeal fee with regard to McCoys. Yours truly, ~1u--cL (yeSD. Bates ~( rJ3e~ JDB:ab Enclosure /~ HUEMOELLER, BATES & GONTAREK~l.tJ€@ @ O\;' J:7. ;~\ ATTORNEYS AT LAW . )]\~II :1 ' 16670 FRANKLIN TRAIL . l IE I lID i'; :! P.O. BOX 67 I \ \ , ) II PRIOR LAKE, MINNESOTA 55372 '" U! , j) (952) 447-2131 Fax: (952) 447-5628 Writer's email address:idbuv.oriorlakelaw.com JAMES D. BATES ALLISON J. GONTAREK BRYCE D. HUEMOELLER November 28, 2003 Mayor Jack G. Haugen 4824 Adrian Circle SE Prior Lake, MN 55372 Council Member Jim Petersen 3338 Todd Road SW Prior Lake, MN 55372 Council Member Andrea Blomberg 16327 Victoria Curve SE Prior Lake, MN 55372 Council Member Joseph G. Zieska 5316 Hampton St. NE Prior Lake, MN 55372 Council Member Chad LeMair 5524 Highpointe Court SE Prior Lake, MN 55372 RE: Tim and Jane McCoy Variance Appeal Case File 03-122 Dear Mayor Haugen and Council Members: The purpose of this letter is to supplement the narrative and oral comments submitted to the Planning Commission in support of the McCoys' variance application. Having reviewed the 1994 Council resolution amending the Wilds PUD (copies of which are attached to the original staffreport and to this letter), and plats of the affected areas and the ordinances relating to planned unit developments, we believe all residential properties adjacent to the golf course are in a unique situation that allow the Council considerably more latitude in granting rear yard setback variances. In short, here are the reasons. 1. The Wilds is a planned unit development (PUD), which by ordinance (1106.100) is intended to provide a flexible approach to development and allow modifications to the strict application of regulations within the various use districts. Specifically, Section 1106.401 permits PUDs to provide no rear yard setback when the abutting property is not residentially zoned or used, as is the case with properties adjacent to the golf course. 2. In its 1994 amendment to the Wilds PUD, the City established a policy that no more than a 5 foot rear yard setback is required for properties adjacent to the golf course fairways. Mayor Haugen and City Council Members November 28, 2003 Page 2 3. The logic of the City's distinction between setbacks for the villahomesites (5 feet) and the single family homesites (15 feet) appears to be to establish a 5-foot distance between structures and the boundary of a 10- foot drainage and utility easement to which all the single family lots adjacent to the golf course are subject. The villa lots, on the other hand, are not subject to any drainage or utility easements along the rear lot lines, and as'a result are only subject to a 5-foot rear yard setback as stated in the January 1994 amendment. A copy of the plat for The Villas at The Wilds is attached to this letter. 4. While the footings of the McCoys' deck, if permitted, will encroach upon the City's drainage and utility easement area, no utility lines or other improvements have been placed there to date. The McCoys have proposed, in their variance application, to enter into an agreement with the City whereby they acknowledge the proposed deck may have to be removed, temporarily or otherwise, in the event the City does propose to make improvements in the easement area. This will preserve the City's interest in fully exercising its rights under the easement and effectively means the McCoys are only asking for a 2.1 foot variance from the 5-foot rear yard setback established in 1994. 5. The preexisting deck"much larger in size than the one McCoys wish to put in its place, generated no complaints over the several years of its use, indicating it did not restrict the views of neighboring properties. - 6. Assuming that concerns remain about obstructing any neighbor's view of the golf course, it is important to note the restrictive covenants applicable to properties in The Wilds adjacent to the golf course make clear that a purchaser has no right to expect his or her view of the golf course will be or remain unobstructed. The golf course is not required to prune or thin trees or other landscaping and may add trees and other landscaping to the course, or change its elevation or configuration, from time to time, any of which may have the effect of blocking an owner's view of the course entirely. The specific provision is Section 16.03 of the First Amended Declaration dated and recorded July 31, 1995, with the Scott County Recorder as Document 355988. We believe all the facts and circumstances strongly support this reasonable use by McCoys of their property, and respectfully ask the Council to consider the additional information in ths letter and grant the variance requested by Mr. and Mrs. McCoy. Sincerely, ~~~o James D. Bates JDB:bj cc: Cynthia Kirchoff .~ RESOLUTION 94-06 RESOLUTION OF THE PRIOR LAKE CITY COUNCIL TO AMEND THE W lLDS PLANNED UNIT DEVELOPl\tIENT MOTION BY: , WHEREAS, WHEREAS, WHEREAS, WHEREAS, WHEREAS, WHEREAS, SECONDED BY: the Prior Lake Planning Commission conducted a Public Hearing on the 6th day of January 1994, to act on a ,petition submitted by Prior Lake Development L.P., to reduce the rear yard setback requL.",u.ents for lots abutting the fairways of the golf course; and notice of the hearing pn said fi1orion has been duly published and posted in accordance with the applicab1e Minnesota Scamtes; and " the amendment will not adversely affect the land use relationship between the golf course and homes, and the amendment is consistent with the stated and desired objectives of the City; and the amendment would result in an opponllnity to address the full range of the marketplace; and the amendment is reasonable and produces substantial justice and is not contrary to the interests of the City; and There were no objections to the amendment by the public. NOW, THEREFORE, BE IT RESOLVED BY THE PRIOR LAKE CITY COUNCIL, THAT IT DOES HEREBY APPROVE THE AMENDMENT TO THE wlLDS PUD AS FOLLOWS: ./ ~. 1. ~ The Wilds PUD text pages' 41,42, and 43 is amended to reduce the rear yard setback-of 112 and 1/3 acre homesites from 25 feet to 15 feet and villa homesites from 20 feet to 5 feet for lots 10c<3;ted adjacent to the golf course fairways. . '- .. - APPLICABLE REGULATION 4629 Dakota St. SE., Prior Lake, Minnesota 55372 / Ph. (612) 447-4230 / Fax (612) 447-4245 ~ r--- .------1 ......!J. I .~. . I . .---f------j \ I ).. !"'f ! ,/.';- ! ,g.:> ! L...' . J.....___...: :-~ .;$" stC1KlH 11, 'W'. tiS lft:('. Z2 LOCA~AIU '- o C :-~ ,. '0, --I r t.... THE VILLAS WILDS 1ST ADDITION AT THE r, L/ V 'r , , <. " .,.. .~... I , , IVI \ ~ i ~ I ~ 157.55 ~. ~f 'I~ ~ :,; c: --' ~~ ~" :'5 .~ ~ ;:. ~:; i~ ,4 2 ^... ,-.-, "'. 1 Q'v t'" /- A ~~}~2': It _ 13Il5.CO o ~ .../ '" . ~'r~l~i!~. --- .-- .'""'\I:-:"I,,,,,T V......;..Vl a 4.2~.0J" ~ - ~1S.OO -:-\..:~ . 'r~~:f0' 1c::J ':,,1 (~; =;.~ ..~ ..... ........ . \ '" - \ 1.0 " I! -- - - -- -- ,./ .'........ ./ ......... r, 1""\. VV/i..VI /"'lIlT, r.T \./v, L.v ~ \ tlh.t (1,,0<) / ... ~ ~-'"- SCALE IN fEET f..:~":": . ..... Nt,......,.,.!.",..... _.", .... - '.... - *-,ir., M"aI.. .".,~lftor....~_ ~...,~~~ IJS1.. S8d MOI"Io"',"~. .._ w 'Il .. . '4 hdt ... ........,...". =: ::~.~,.:: ...:.:: : ~.g.,~.,~ -.os .~.. '12'" '-114 lndIlrM.,"__t faurMI .~ -. ......-.... ..... 1 _"':r.-.:.Vln_ .,. ::;U:~~....~5to" <-t2J t!"-"''' rMI"'~ :::..~~u. (lt2) ,...,- ,_.,....~ ShIT' 111' 2 9-: s F :J>> '" ~ -t :t: f!1 ..;: G (I)' .... (I) -t 1d~ Yliscellaneous ~ Ur" 0_ <YJ f>~G ~~V~ L:\TEMPLA TE\FILEINFO.DOC PERMIT AGREEMENT FOR PRIVATE USE OF PUBLIC PROPERTY THIS AGREEMENT is made and entered into this 15th day of December, 2003, by and between the CITY OF PRIOR LAKE, Minnesota, a municipal corporation (hereinafter referred to as "City"), and TIM AND JANE McCOY, (husband and wife) (hereinafter referred to as "Owners"). RECITALS WHEREAS, Owners are the fee owner ofa tract of land in Scott County, Minnesota, located at 2830 Fox Run NW, and legally described as follows: Lot 1, Block 2, The Wilds ; and WHEREAS, the plat of The Wilds dedicated an easement for drainage and utility purposes to the City over the northerly 10 feet of Lot 1, Block 2, The Wilds; and WHEREAS, the portion ofthe deck serving Owners' Property encroaches on said easement described on Exhibit A attached hereto (the encroached portion of the property hereinafter referred to as the "Permit Property"); and WHEREAS, Owners wish to use the Permit Property for a deck encroachment; and WHEREAS, Owners have requested the City to authorize continued use ofthe Permit Property for deck encroachment purposes; and C:\WINDOWS\Temporary Internet Files\OLK6IFl\Clean Private Use Agreement - McCoy1.doc 1 WHEREAS, such continued use of the Permit Property is not inconsistent with current use ofthe property by the City and the public; and WHEREAS, the City may in the future desire to use the Permit Property for other purposes which are not consistent with Owners' use of the Permit Property, and therefore the City intends to retain all of its right, title, and interest in the Permit Property; NOW, THEREFORE, the parties agree as follows: 1. Permit. The City Council has granted the Owners of Lot 1, Block 2, Wilds a variance, subject to certain conditions, to permit the construction of a deck on the rear ofthe house. The support members necessary to construct the deck will encroach on the City's drainage and utility easement. Owners acknowledge and agree that the placement and construction ofthe deck is at Owners' sole risk, and with full knowledge that the City may, upon notice as provided herein, require Owners' deck to be removed from the Permit Property at any future date, at Owners' sole expense. The Permit Property must be kept open to the public use at all items, and no fence or other obstruction may be placed on the Permit Property without the prior written approval of the City, which may be given or withheld in the sole discretion of the City. 2. Maintenance of Permit Property; Modification. Owners shall maintain the Permit Property in good condition at all times, at their sole cost and expense. If Owners fail to do so, the City may cause the necessary repair or maintenance to be done at Owners' cost. If Owners fail to pay the City for such costs, the City may assess the costs against Owners' Property. Owners shall not make any modifications to the drainage and utility easement or otherwise modify the Permit Property without the prior written approval of the City, which may be given or withheld in the sole discretion of the City. 3. Termination. In the event the City desires to use the Permit Property for a purpose which is inconsistent with the Owners' deck encroachment, which determination will be in the City's sole discretion, or in the event Owners fail to comply with any requirement of this Agreement within sixty (60) days after receiving a notice from the City requesting such compliance, the City through its City Manager may terminate this Permit Agreement by giving thirty (30) days written notice of termination to Owner by certified mail at the following address: 2830 Fox Run NW, Prior Lake, MN 55372. Such notice may, at the City's option, require Owners to completely remove the deck from the Property legally described above within said thirty (30) day notice period, including all debris. If this Permit Agreement is terminated by the City as provided herein, Owners will be solely responsible for all costs and expenses related to removal ofthe deck on Owners' property. C:\WINDOWS\Temporary Internet Files\OLK6l Fl \Clean Private Use Agreement - McCoyl.doc 2 If Owners fail to remove the deck as required by a proper notice of termination, the City may cause the removal to be done and the costs of such work shall be paid by Owner. If Owners fail to pay the City for any costs related to removal of the deck as provided for herein, the City may assess the costs against the Owners' Property. 3.1 License. The Owners hereby grant City an irrevocable license to enter upon Owners' property for the purpose of removing the deck, in the event Owners fail to remove the deck. 4. Consent to Special Assessment. Owners hereby acknowledge and consent to the City's right to specially assess any costs incurred by the City for any repair or maintenance performed pursuant to Paragraph 2 of this Permit Agreement, or any costs incurred by the City to remove Owners' deck from the Permit Property pursuant to Paragraph 3 of this Permit Agreement. Owners waive any right to protest or appeal any special assessment levied pursuant to this Permit Agreement. 5. Future Development. Owners understand and acknowledge that the City may make improvements to the Permit Property in exercise of its easements rights for drainage and utility purposes at some future date and in the sole discretion of the City. In the event the City undertakes such development, and if this Permit Agreement is not terminated by the City as provided above, Owners agree to cooperate to the extent practicable to use its best efforts to accommodate City's use of the Permit Property for the purposes stated herein. However, Owners specifically acknowledge City has the absolute right to terminate this Agreement or otherwise require Owners to discontinue their encroachment on the Permit Property if deemed necessary by the City for the full exercise of its easement rights. 6. Indemnity. Owners shall defend, indemnify, and hold harmless the City and its employees, subcontractors, attorneys, agents, and representatives from and against all claims, damages, losses, costs and expenses, including attorney's fees, which may be incurred by or asserted against the City or for which the City may be held liable, which arise out of or result from use of the permit Property for deck encroachment purposes, including but not limited to the maintenance, repair or removal of Owners' deck, except liability caused solely by the negligence of the City. 7. Insurance. As long as this Permit Agreement is in existence, Owners shall maintain a general liability insurance policy which provides coverage for the Permit Property for any damage to property of others or injuries to persons. Said insurance policy shall provide coverage on an occurrence basis in an amount no less than One Million Dollars ($1,000,000), and shall include contractual liability coverage to provide coverage for the indemnification provision in Paragraph 6 above. Said policy shall name the City as an additional insured, and shall contain a clause which provides that the insurer will not cancel, non-renew, or materially change the policy without first giving the City thirty (30) days prior written notice. Owners shall provide the City with a C:\WlNDOWS\Temporary Internet Files\OLK6IFI\Clean Private Use Agreement - McCoyl.doc 3 Certificate oflnsurance for said policy which specifically details the conditions of this Paragraph 6. 8. Waiver of Claims. Owners acknowledge City's easement rights on and under the Permit Property and knowingly waive any and all claims against the City related to Owners' use of the Permit Property, including but not limited to claims of abandonment, diminution in value, takings and contractual claims arising out ofthis Permit Agreement, except any claims which are the result of the sole negligence or willful misconduct of the City or its employees or agents. 9. Condition of Property. Owners accept the Permit Property "as is" and the City makes no warranties regarding the conditions of the Permit Property or the suitability of Permit Property for Owners' purposes. 10. Binding Effect. This Permit Agreement shall run with the land and shall be binding on and inure to the benefit of the parties hereto, their heirs, successors, or aSSIgns. 11. Whole Agreement; Modifications. This Permit Agreement contains all of the terms and conditions relating to the permit granted herein, and replaces any oral agreements or other negotiations between the parties relating to the permit. No modifications to this Permit Agreement shall be valid until they have been placed in writing and signed by all parties hereto. 12. Recording. Owners shall cause this Permit Agreement to be recorded in the Office of the Scott County Recorder at their cost and expense. IN WITNESS WHEREOF, the parties have executed this Permit Agreement as of the date first above written. CITY OF PRIOR LAKE OWNER(S) By: Jack G. Haugen, Mayor By: Frank Boyles, City Manager C:\WINDOWS\Temporary Internet Files\OLK61Fl\Clean Private Use Agreement - McCoy1.doc 4 STATE OF MINNESOTA) )ss COUNTY OF ) The foregoing instrument was acknowledged before me this day of .20_, by Jack G. Haugen and Frank Boyles, The Mayor and City Manager, respectively ofthe City of Prior Lake, on behalf of the City of Prior Lake through authority granted by its City Council. Notary Public STATE OF MINNESOTA) )ss COUNTY OF ) The foregoing instrument was acknowledged before me this ,20_,by and and , respectively of . on behalf of the (corporation/partnership). Notary Public C:\WINDOWS\Temporary Internet Files\OLK61Fl\Clean Private Use Agreement - McCoyl.doc day of ,the 5 CERTIFICATE OF SURVEY PREPARED FOR: 11M McCOY 2830 FOX RUN NW PRIOR LAKE, MN 55372 VALLEY SU,RVEYlNG CO., P.A. 16670 FRANKLIN TRAIL SE SUITE 230 PRIOR LAKE, MN 55372 (952) 447-2570 J Umils of Deck SUpport -.---- pOSls N 87 0 00' 00" w ___/\ 4"'. - --- _EA_SEM_E.NT2 (I: . -;. ~ \ ., z 1 --i,-. 6.7 \ -- _\I \ .! - - ) I I I I I I I I I I I .-- I I I.JJ /0 r ::: I I N L{)o I - 0 en ~o I o L{) 0, I -, <: I ,/0 l ....- ....... ~ :;:::::=- ---- 132.94 ~ ~UTllITY - -.- 8 DRAINAGE HOUSE " /' / " \ I , / ~' .~ ';'">;l , , , , , / / / / , <1, ' d' <1', , d -" -" // ,----- ;....101.0 -" -" -" / " / /' ,,;(-.. o + " : \. ' , . {.l , . ~..,. <1 ' , ,,' \ ' \' ,- \~., , ~ A . ,/ ;' ./ ./ ./ / ./ / ./ / C ~~ ._0_ j I I . C oncreJe <1.Drive'way "4 d' <:i ',4 <1 '" /' GAR AG E d ' , LI " ',' :::....- , / -" /' / .' .' '0;1.. / ,/ -'?(/ "V \ \ \ " '... J~ I ~ - J ~ -- 30.00 -- N850 00' OO"E " ....... ------- = Lot 1, Block 2, ll-iE WILDS, Scott County, Minnesota. Also , showing 011 visible improvements and/or encroachments onto or off, from said property if any, as of this 2nd day of July, 2003. LEGAL DESCRIPTION AS PROVIDED:!' ').,.,.- .. .~ ~ I . 5 ~Pf:i o OPO I tCJ( Sto , I I ~ w o o o o o I'f) o z ('.... ./ L_ , I I I I - 15.9-->-////// / /' ./ ..- ./ / " ;. HOUSE ,/ ,/ / /' /' / ,,- 16.0 _ ;. ---------.... .////// 0'1 (!) {\/ ~ ~ =--.:: ~ Rev. 10/6/03 To show proposed deck info. I hereby certify thot this Certificate f>f Survey was prepa~d . by me or under my direct supervision and that I am a duly Licensed Land Surveyor under the laws of the State of Nlnnesota. t;.P& ~ Minnesota License No,. 10183 Doted thls...J.!7t.f\ of J" L'J ' 2003 FILE NO. 9707 BOOK 238 PAGE 76 2~ Scale in 10 20 I I Feet I , I I, . DENOTES IRON MONUMENT FOUND o DENOTES IRON MONUMENT SET AND MARKED BY MINNESOTA LICENSE NO.10183 OCT - 1 2003 , : i II" ,:.J UL....--. .u....u ,.,.'-_......_~,. / i l......__..-....-....... ._~"""""'-' __"H'__' ......- DEC. 10.2003" 2:06PM NO. 1438 P. 2,/2 Land Surveyors Planners ~ Valley Surveying Co., RA. .. (952) 447-2570 Suite 230 16670 Franklin Trail S.E. Prior Lake, Minnesota 55372 December 10,2003 Description prepared for:: Tim McCoy 2830 Fox RunNW Prior Lake, Mn 55372 Description for the proposed deck encrQachment. area: . An easement to construct an attached deck over and acro~s the south 5.0Q feet of the north 10.00 feet of the west 18.00 feet of the east 28.00 feet of Lot 1, Block 2, THE WILDS, Scott County, Minnesota. . D~SCIi ~ionprepared b: ~ . ~ · IJ t Rona d A n; Land urveyor - Minnesota License Number 10183 File No. 9707 .' . Overheads Presentation ~aterials L\TEMPLA TE\FILEINFO.DOC .. I I J .. D. Villa Homesites: Single-family attached and single-family detached structures intended for individual lot ownership which may include golf villas, club villas, corporate villas, etc. - Permitted Uses - Minimum Lot Size - Maximum Building Height - Minimum Front Yard if Abutting ArteriaI Street - Minimum Front Yard if Abutting Public/Private Street - Minimum Lot Width * - Minimum Lot Depth - Minimum Rear Yard - Minimum Side Yards of Buildings - Minimum Separation between Buildings - Maximum Number of Attached Units - Minimum Off-Street Parking per DU Single-family residential, single-family attached residential 2,200 sq.ft~ 35 ft. 50 ft. from ROW line 25 ft. from ROW / roadway easement 22 ft. (at building line) 100 ft. ~t. (?' ) ~o/l A:fo 7.5 ft. 15 ft. 8 units 2 spaces . . Cul-de-sac, pie shaped and flag lots \ViII have a less than minimum width measured at building lines. NOTE: No construction on, or alteration of, any land within a sensitive land easement will be allowed. Other Reauirement~: It is intended that a preliminary and final plat \ViII be submitted for the residential development areas that are consistent with the concepts and development standards set forth above. Additional requirements or modifications may be established by the Prior Lake Planning Commission and Prior Lake City Council pursuant to their review. -43- C. 1/3 Acre Hom"esites: Single-family detached structures intended for individual lot ownership. - Permitted Uses - Minimum Lot Size - Maximum Building Height - Minimum Front Yard if Abutting Arterial Street - Minimum Front Yard if Abutting Public/Private Street. - Minimum Lot Width.. - Minimum Rear Yard... Single-family residential 10,000 sq.ft. 35 ft. - Minimum Each Side Yard 50 ft. from ROW line 25 ft. from ROW / roadway easement 80 ft. 25 ft. ( IS' ilu~ -do ) 10 ft. or 1/2 height of principal building whichever is greater 15 ft. from ROW / roadway easement - Comer Lot Minimum Side Yard Abutting Public/Private Street . Certain lots, due to topographic conditions, may have less than the minimum front yard requirements, but no lot shall have less than a 20 ft. front yard setback. .. Cul-de-sac, pie shaped and flag lots will have a less than minimum width measured at building line, but no lot shall have less than 25 feet of width on public access right-of-way easement. ... Rear building line and fencing allowances on golf course and other premium frontage lots are to be determined on a lot by lot basis at time of subdivision platting. NOTE: Certain lots may contain a Sensitive Land Easement in which no construction or alteration of the existing conditions will be allowed. .Other Requirements: It is intended that a preliminary and final plat will be submitted for the residential development areas. that are consistent with the concepts and development standards set forth above. Additional requirements or modifications may be established by the Prior lake Planning Commission and Prior Lake City Council pursuant to their review. -42- / /"" \ J I ----- _ocation VIa)' :or McCoy Variances ' \ ~ , , The Wilds Fairway I ~ctProperty ~ , I _________ ~ ) " 300 I 300 Feet I N + o CERTlFICA TE OF SURVEY PREP ARED FOR: TIM McCOY 2830 FOX RUN N W PRIOR LAKE, MN 55372 VALLEY SURVEYING CO., P .A. 16670 FRANKLIN TRAIL SE SUITE 230 PRIOR LAKE. MN 55372 (952) 447-2570 t ~, - ~ Limits of Deck SUpport _.- pOSls N 87 0 00' 00" W h:{\ 41-' - -- r.'-/' '. ~E~EM~.Nr2 j:" \ ..71'\ 5 /~ PlyOp --- I Dt e,( OSfO , , , I hereby certify that this Certificate pf Survey was prepa~~ by me or under my direct supervision and that I am a duly Licensed Land Surveyor under the laws of the State of Minnesota. kJ}& L~ Minnesota License No.. 10183 Dated thlsi(,jt.~ of Jl.l f'J . 2003 FILE NO. 9707 BOOK 238 PAGE 76 ---- ---- 132.94 I / ~ "-UTILITY DRAINAG E - -.- 6 lJ.J :: I N, I.{) 0 (00 f'fJO o I.{) 0, -, Z '0 r I I I I I '0 l ) I I I HOUSE I I \ I I , ;" ;" ;" I ;'~ I ;' ;' I ;' I ;' - -- ~- -- --- I J ~ -- 30.00 -- (\\850 OO~OO":.__:._ -r' ...... ...... ~ " " "- "- " \ "tI""'-' ,,-,,'\ ;';' \ \ ;' :$..'?F 10:. (,- ;' I "" I _ i I l' I '/ ..jl I <J 4, 011' <1', .6 ~ o + " \. ' '. ~ " . ~... .A , ' ," ,.' \ ' <1 ;' ,6 ~ , / . ConcreJe <J ' 'Drive'way <J GARAGE ..<1' , '. ;' ,.. .1 " . '~.4 .'\Z- ... 'rJ" '~".:...,~ ~ :: ,,; / / ;" >ir.::~~,_o_ I I I I J5 ~(/ ~ \ \ \ " "- -...... ...... - - - -- - -- o --= LEGAL DESCRIPTION AS PROVIDED:" .~.- " Lot 1, Block 2, mE WILDS, Scott County, Minnesota. Also , showing all visible improvements and/or encroachments onto or off, from sard property if any, as of this 2nd day of July, 2003. ..~ ~ Rev. 10/6/03 To show proposed deck info. 20 0 .~ Scale in 10 20 I I Feet I , , ' OCT - 1 2003 . DENOTES IRON MONUMENT FOUND o DENOTES IRON MONUMENT SET AND MARKED BY MINNESOTA LICENSE NO.10183 \ II,. J l:, L....-_ ...- .,--.--- i:..../' i \,,,...A.....__...._....... .__......n.~ -.--.--- ,---'. ... w 0 0 0 0 0 f{) 0 ('... ./ Z L.- --- '5~9-:j/////,.: / ;' / ;" ;" ;" ;" :;: HOlJSE ;" / ;" ;" ;" ...- /- 16,0- ::; . ---------.. /...-//// . Q) (() N '\t -----==' -' . . IIEARl~G ~O'l'ICES L:\TEMPLA TE\FILEINFO.DOC AFFIDAVIT OF SERVICE BY MAIL COUNTY OF SCOTT ) )ss STATE OF MINNESOTA) (f0f~ue &11 lr71~ of the City of Prior Laj<e, ~ounty of Scott, State of Minnesota, being dul~~~,-says on the ~ay oHUtJ_. ,2003, she served the ttached list of persons tG have an interest in the \..--lAJtJt(tA17;" ?)O AAAl~ ~~ , by mailing t~y.thereof, enc 0 d in an envelope, postage prepaid, 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 , 2003. NOTARY PUBLIC L:\DBPTWORKIBLANKFRM\MAlLAFFD.DOC 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 NOTICE OF PUBLIC HEARING TO CONSIDER AN APPEAL FROM THE PLANNING COMMISSION'S DECISION TO DENY SETBACK VARIANCES FOR A DECK ADDITION 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 County Road 21 and Fish Point Road), on: Monday, December 1, 2003, at 7:00 p.m. or as soon thereafter as possible. APPEAL: The Planning Commission's decision to deny a 12.1 foot rear yard Variance and 3.3 foot side yard setback Variance for a 14 foot by 20 foot deck addition. APPELLANT: James Bates on behalf of Tim and Jane McCoy SUBJECT SITE: 2830 Fox Run NW, Prior Lake, MN, legally described as Lot 1, Block 2, The Wilds, Scott County, Minnesota. 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 447- 9810 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. Prepared this 20th day of November 2003. Cynthia Kirchoff, AICP, Planner City of Prior Lake To be mailed to property owners within 350 feet of the subject site on November 20, 2003. L:\03 Files\03 Appeals\03-131 McCoy\Mailed Public '+!.Etarina Notice.doc www.chyotprTorlake.com Phone 952.447.4230 / Fax 952.447.4245 ~,~~-;;:c~(:,~.~^. _._ Ill' ,.----- ',\'! J" - II c' \1 r( I! I ;! . \ I" , U \if 20 ' 0 10 20 I - . Scale In reet CERTIFICATE OF SURVEY PREPARED FOR: l1M ~CCOY 2830 FOX RUN NW PRIOR LAKE. MN 55.372 ~ \'UTII.ITY 10 r I I I / I l - - -- ..... .... ;<:>. o + ~</ ~ >'),.,- " ~ . DENOTES IRON MONUMENT FOUND o DENOTES IRON MONUMENT SET AND MARKED BY MINNESOTA WCEN$[ NO.101BJ V~ SURVEYING CO., P.A. 16670 FRANKUN TRAil SE SUITE 230 PRIOR LAKE. ~N 55372 (952) 447-2570 ----/3,2.94 , ~?t I.lmU. of Dock 'Uppor, po... N 87 0 00' 00" W ..... \ . ..,4' - - fl r- " t.._ :AI~A~ _ _E~E~NT2 5' , rp~op -/, orc/( oSEO I I I .... I I I , I I I , I I I /3-'~O-; / / I ; I I , ':::-15~9-.>'/""" h / / / / / / / ~ HOUSE , , , / , ,~,:::.!~:..~::.... -://////. 1IJ (:) o (:) o o If) o z '- '- "- " " /\ -- \ \ / / , , ~ ,:,. ,6' 4:. . C oncreIe <f1 . Driveway "4 . 4 GARAGE , '4 / . 4 ' .~ . " / / , / , / / ',,, I' ,/'/ /./",. /':/ /~ c~~,_o_: fB I N I ~ , I J5 .4 .q4 q.. '- .... I I ---;IIi /"-- 30.00 -- N850 OO:..90"E _ ---"- - ------ ~ ---= LEGAL DESCRIPTION AS PROVIDED:.': Lot 1. Block 2. ll-iE 'MLDS. Scott County, Minnesota. Also showing all visible improvements and/or encroachments onto or off, from said property If any, os of this 2nd day of July, 200.3. OOT - 1 2003 l\\l\\\\\\\\\\\\\\\\\! PROPOSED DECK Rev. 10/6/03 To ,hOW propooed deck Info. .----......-. ~- .'J I hereby certify that thl. Certificate of Survey WOI prepared by me or under my dlrect supervfllon and that I om a duly Ucenled Land Surve)Ol' under the Ion of the State of Mlnneloto. -L.,~.j}& Al.- IIIlnneooto Ucen.. No. 10183 Doted thll-.1!:J.!:i.ot J (J 1,,- I FILE NO. 9707 BOOK 238 PAGE 76 --- ---- "-_.- 2003 . -- NOTICE OF PUBLIC HEARING TO CONSIDER AN APPEAL FROM THE PLANNING COMMISSION'S DECISION TO DENY SETBACK VARIANCES FOR A DECK ADDITION 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 County Road 21 and Fish Point Road), on Monday, December 1, 2003, at 7:00 p.m. or as soon thereafter as possible. APPEAL: The Planning Commission's decision to deny a 12.1 foot rear yard setback Variance and 3.3 foot side yard setback Variance for a deck addition. APPELLANT: James BateslTim and Jane McCoy SUBJECT SITE: 2830 Fox Run NW, Prior Lake, MN, legally described as Lot 1, Block 2, The Wilds, Scott County, Minnesota. 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 447-9810 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. Prepared this 7th day of November 2003. Cynthia Kirchoff, AICP, Planner City of Prior Lake To be published in the Prior Lake American on November 15, 2003. L:\03 Files\03 Appeals\03-131 McCoy\Published Hearing Notice.doc 1 f' 2 3 4 5 6 7 8 9 10 11 12 013 14 15 16 17 18 19 20 21 22 23 24 . '''-'''2 5 Page 1 PLANNING COMMISSION MEETING MONDAY, OCTOBER 27, 2003 PLANNING COMMISSION MEETING The following is the transcript of a tape of the Planning Commission Meeting transcribed by Sara Jane Wyckoff, Notary Public, Court Reporter, on November 21, 2003. The meeting was held on October 27, 2003. Q~~@~lNI~JL. Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,,_ 1 2 3 9 10 ".- 11 12 13 14 15 16 17 18 19 20 21 22 23 24 _. 25 Page 2 4 APPEARANCES AS LISTED ON MINUTES: Commissioners: Atwood Criego Lemke Ringstad Stamson Also Present: Jane Kansier, Planning Coordinator Cynthia Kirchoff, Planner Larry poppler, Assistant City Engineer Connie Carlson, Recording Secretary 5 6 7 8 Pat Carl & Associates (763) 591-0535 or (800) 59l-9PCA (722) r' 1 2 3 4 5 6 7 8 9 10 11 12 r-13 14 15 16 17 18 19 20 21 22 23 24 /.-~ 2 5 Page 3 *** MS. KIRCHOFF: single family dwelling on property located at 2719 Spring Lake Road Southwest. Specifically the applicant is requesting a 6.4 foot variance from the required 20 foot front yard setback in the R-l district. As the survey indicates the property was platted as part of the Spring Lake town site in the 1850s. Access to the site is gained via Spring Lake Road or County Road 12. The survey indicates that the road surface is 56 feet from their property line as you can note from the overhead. However, portions of this county road were not actually constructed in the dedicated right-of-way. Just to note, this roadway is scheduled for reconstruction in 2006, and Scott County is currently in the design phase of that construction. The site is currently void of structures of the existing -- or the previous home was demolished from the site. There lS a 220 square foot boat house on the property. It lS nonconforming. However, the applicant is not proposing to alter it or remove it as part of this application. As long as it remains there it's a legal nonconforming structure. Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) --- 1 2 3 4 5 6 7 8 9 10 11 12 ,- 13 14 15 16 17 18 19 20 21 22 23 24 .- 25 Page 4 As noted the applicant was issued a demolition permit and did demolish the house on the site. And on September 15 of this year the applicant did apply for a building permit to construct a dwelling on this property. The Planning Department did approve the building permit application because the house did meet all the setbacks. The applicant subsequently applied for this variance to allow front yard setback to be 13.6 feet. The staff report noted the building permit would be issued prior to the Planning Commission taking action on this request. It's not been issued at this time. There is -- the staff's understanding that there is an issue with the utility connection, but the building permit will be issued shortly. In order to construct the 4,500 square foot single family dwelling on the property the applicant is requesting a 6.4 foot front yard setback variance. The zoning ordinance does require a 25 foot front yard setback. However, there is a provlslon In the ordinance that does allow the front yard setback to be averaged, and that average is those -- taken from those buildings that are within 150 feet of the subject site. The setback cannot be anything less than 20 feet. However, the average Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,r- 1 2 3 4 5 6 7 8 9 10 11 12 ,,-, 13 14 15 16 17 18 19 20 21 22 23 24 f-' 25 Page 5 setback in this instance is just over 18 feet so the required front yard setback would be 20 feet. The buildable area for this property lS 80 feet in width by 56 feet in depth and the proposed dwelling is 68 feet in width and just over 64 feet in depth at its deepest point including the porch that's noted right there. Prior to the varlance application the applicant had spoken with staff along with a builder and expressed concern about the width of the right-of-way. It has noted the actual roadway surface is not constructed within the platted right-of-way of County Road 12 so there is not an excess of right-of-way. The front yard setback's measured from the property line not from the roadway so that existing roadway location is really irrelevant. As noted Scott County is in a design phase of County Road 12, and the right-of-way needs have yet to be determined, but it's the City's understanding that the design calls for an urban section which would include curb and gutter as well as a trail. The terms of the varlance hardship findings as noted the buildable area is substantial Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) '-' 1 , 2 3 4 5 6 7 8 9 10 11 12 .'--- 13 14 15 16 17 18 19 20 21 22 23 24 /-25 Page 6 so the physical conditions of the property In conjunction with the strict application of the front yard setback do not create a hardship for the applicant and the applicant will be issued a building permit to construct this home on this site. The granting of the front yard setback variance lS not necessary for the preservation and enjoyment of the property rights of the owner being that their -- the applicant has already applied for a building permit and it will be issued shortly. The applicant's request merely serves as a convenience. There is no undue hardship. It's merely a preference to locate the house 13.6 feet from the property line, not -- it's not necessary to allow a home to be constructed on the site. The alleged hardship does result from the actions of the property owner. TDere lS a substantial buildable area and the applicant made a decision to design and locate the dwelling that encroaches into the front yard setback. In conclusion, the applicant would like to construct a single family home on the property that's zoned to R-l and SD. In order to do such the applicant believes a front yard setback variance lS required. The strict application Qf the required Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,r- 1 2 3 4 5 6 7 8 9 10 11 12 1'- 13 14 15 16 17 18 19 20 21 22 23 24 ,,-- 2 5 Page 7 setback does not preclude the property owner from making a reasonable use of the property. Therefore, staff does recommend denial of the application. The Planning Commission does have three alternatives with this request. The first is to approve the variance, the second is to table, the third is to deny the application. And as noted, staff does recommend alternative three In the action that's required this evening is a motion and a second to adopt the resolution denying the variance request. Thank you, and I'd be happy to answer any questions that you may have. MR. STAMSON: I'm still slightly confused about the building permit versus needing the variance. The house can be located on the property. Isn't it 50 feet from the water line? How does he get the 13 feet back? MS. KIRCHOFF: This porch is not -- there is a deck on the house rather than a porch. So the house has just been shifted to the 20 foot setback, and I believe the deck was not actually included with the building permit, but it shows a future deck on the survey and that is I believe 6 feet in depth~ But the house that's proposed on Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ( 1 2 3 4 5 6 7 8 9 10 11 12 rL-13 14 15 16 17 18 19 20 21 22 23 24 ,~25 Page 8 this survey can be accommodated on the lot without any variances. MR. STAMSON: So it's the deck that's causing the MS. KIRCHOFF: Well, it's the porch that's shown right here. MR. STAMSON: Porch In this case. MS. KIRCHOFF: Yep. MR. STAMSON: Really they couldn't build a deck there either because it would be closer to the 50 foot walk. They'd be closer than 50 feet; correct? MS. KIRCHOFF: Well, it's shown on the survey that was submitted with the building permit. I don't know if there was a change of design but I believe it's the same plan. MS. KANSIER: They could do an excuse me. They could do a platform deck. They couldn't do a -- MR. STAMSON: Oh, because it's not a walkout. MS. KIRCHOFF: And I don't know if it's a second story deck or just UNIDENTIFIED SPEAKER: an (inaudible) foundation. We don't have Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) r---- 1 2 3 4 5 6 7 8 9 10 11 12 r-- 13 14 15 16 17 18 19 20 21 22 23 24 ,'-,25 Page 9 MS. KIRCHOFF: Mr. Chair UNIDENTIFIED SPEAKER: I missed the depth of the property. Could you share that with me again? MS. KIRCHOFF: The depth of the property. The survey shows that the property lS 130 feet in depth on this property line and 129 feet on this property line. UNIDENTIFIED SPEAKER: Thank you. MS. KIRCHOFF: And Mr. Chair, if staff could just reiterate, the house is just shifted back 6 feet so the proposed porch is reduced to a 6 foot depth so it does meet the required setbacks. It's just a 6 foot difference. UNIDENTIFIED SPEAKER: Okay. (Inaudible) . UNIDENTIFIED SPEAKER: Sure. MR. RINGSTAD: The bank that I work at has a mortgage on this property, so for that reason I'm not going to be participating in any discussion or voting. So please take note of that. MR. STAMSON: Okay. MR. RINGSTAD: Thanks. MR. STAMSON: Thanks, Torn. With that I'll invite the applicant up to -- Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,- 1 2 3 4 5 6 7 8 9 10 11 12 ~ 13 I 14 15 16 17 18 19 20 21 22 23 24 r- 25 Page 10 MR. HINES: Good evening. My name is Phil Hines. I live at 2719 Spring Lake Road. I'm the owner of the property in question. I'd like to add a little clarity to some of the points here. In fact, we -- we applied for the variance at the same time that we applied for the building permit. As we're getting late into the season and with the discussion with the builder, to expedite the process we took off the deck essentially, modified the deck so that it would conform so we could get through that part of the process as we went along. Essentially I'm here to avoid the situation that the previous couple got into in doing this. Again, we applied for the building permit so that we could get that part of it gOlng so should you decide in our favor on this we wouldn't have to wait another 60 days and then miss the building season. And we do -- would like to intend to do this yet this year. As Cindy had mentioned, we're looking for the additional 6 feet that's required to put a deck up against the lakeside setback and still build the house as designed. I think it's pretty common knowledge and if you look on the survey you'll see the houses In all directions have decks on the lakeside. And in fact, if you builG a house that Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,- I 2 3 4 5 6 7 8 9 10 11 12 r-- 13 14 15 16 17 18 19 20 21 22 23 24 ,..--- 2 5 Page 11 wouldn't -- on the lake that wouldn't allow a deck you would see some diminished value and some issue to that. The question about the road setback was not that they had more right-ot-way than they were entitled to, it just happens to be offset and so what happens lS it pushes our lot line closer to us. And I'd like to have you take a look at another house here. This is a new home that lS constructed five doors down from where I'm proposing to build. The distance trom the ordinary hot water line to the road is approximately the same, it's a couple of feet. If you'll note, their road setback or their property line lS considerably closer to the road than ours lS, and therefore this point didn't require a varlance. But in fact, their front structure, their building is going to be 17 feet closer to the road than ours, than our proposed is going to be. So regardless of what the county does with the road, whether they move it this way or that way or off center they're always going to be 17 feet closer. In addition to that, the neighbors on either side of us will sit closer to the road than what is proposed here. And I mentioned that in Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) r- 1 2 3 4 5 6 7 8 9 10 11 12 ,"- 13 14 15 16 17 18 19 20 21 22 23 24 ,,- 25 Page 12 addressing some of the concerns of the Planning Commission. Let's see if there is anything else I needed to -- there was a note in the letter that we were looking for in addition to the setback from the road, there was a .3 foot variance additional side setback, and I don't think that's required. I think we've already relocated the house to address that. Can you put back up the survey? As Cindy had mentioned, it's 56 feet from the road to the front of the property line there. And as you can see, all the neighbors and anyone else too, if our fence is built out into the right-of-way the water -- the water shutoffs are out into the right-of-way. Again, we're not asking to go beyond the property line itself but just to encroach on the setback 6 feet when we have an additional 56 feet to the road. With that I guess if you have any questions I'd be happy to answer them. MS. ATWOOD: I do. MR. STAMSON: Yes, Margaret. MS. ATWOOD: Somewhere In my reading it was suggested by staff that you ask the county to Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) r- 1 I 2 3 4 5 6 7 8 9 10 11 12 ,.--13 14 15 16 17 18 19 20 21 22 23 24 .,;-. 25 Page 13 vacate part of the right-of-way. Did you meet with them at all or did you consider that an option? MR. HINES: Yes, I did. And of course their answer was well, until we formalize our plans we're not going to do anything with the land. What they did tell me lS that they would expand the road to create the least impact on the existing structures. And given that, they couldn't come very far toward my property without cutting off both my neighbors. And as you go farther to the west, if they came a full 10 feet toward us we would have people who wouldn't have a full car's parking spot in their driveway. So it's unlikely that they'll do that. And the property lines runs of course straight across and the road arches out around. For them to get anywhere close to us they'd have to arch around and then go straight across our property line and then continue arching around the lake which I also think is not a likely scenario. I did discuss the possibility of vacating that and he said no way to tell you whether we'll do that at this point, but the fact that it's there and we're unable to use that space creates this lssue. If in fact they didn't use it and would give us 6 feet we wouldn't even be having this Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,"-- 1 2 3 4 5 6 7 8 9 10 11 12 , ,,-13 14 15 16 17 18 19 20 21 22 23 24 (-- 25 Page 14 conversation because we're far enough away from the road structure and everything on that side of the property. I guess as far as I know there is no objections of any of my neighbors to it. In fact, one of my neighbors is here tonight to I believe to indicate that he's in support of it and he is directly across the road from us. So he would be the most impacted by this. MR. CRIEGO: Mr. Chair? MR. STAMSON: Sure. MR. CRIEGO: One question. Why didn't you build a house smaller? Take 6 feet off of it? MR. HINES: Well, there are several reasons. MR. CRIEGO: Pretty big home. MR. HINES: It's a fairly large home. But at the same time, it is essentially the same footprint as the one I showed you in the depth direction. It's fairly common now to build a 28 foot deep house. That's pretty much the standard. And if you put a 12 foot deck on it and then add a garage to it this is how wide you get to. If you try to skinny down it, you know, you're impacting value. One of the issues that we ran.up against Pat Carl & Associates (763) 591-0535 or (800) 59l-9PCA (722) ,r-- 1 2 3 4 5 6 7 8 9 10 11 12 r-13 14 15 16 17 18 19 20 21 22 23 24 -- 25 Page 15 here was that the lot values are such that you have to build a pretty good house on it to keep the home value to the lot value within the ratios that are normally implied to mortgages. MR. CRIEGO: Seems to me you could build your garage a little differently in relationship to your main home. MR. HINES: I respectfully disagree with you. We've got through this process. We've been in the design process for going on two years trying to get a house that meets the size requirements and still fits together with the layout of the additional -- the neighbors and . . . MR. CRIEGO: What's the square footage of the home itself without the garages? MR. HINES: I don't know exactly. Mark, do you know what that is? UNIDENTIFIED SPEAKER: 1,800. MR. HINES: 1,800 square feet, something like that. MR. CRIEGO: The first level lS 1,800. It's got a second story? MR. HINES: It's a walkout rambler. MR. CRIEGO: Walkout. So it's 18 and 18, huh. Thank you. Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,--- 1 2 3 4 5 6 7 8 9 10 11 12 r-13 I 14 15 16 17 18 19 20 21 22 23 24 1,~25 MR. HINES: Uh-huh. MR. STAMSON: Any further comments or questions? I'll open the floor to public comment then. Thanks. Anybody here to speak please step forward and state your name and address. MR. NELSON: Good evening. My name lS Randy Nelson. I live at 2738 Spring Lake Road directly across the street that the Hines residence. And I don't think there would be any neighbor more impacted by whatever he does on that property than I. When I look out my front window what I see is Phil's house, the house that used to be there and now the new house. And I'd just like to make it perfectly clear that I have absolutely no objection to his request for a variance. Thanks. MR. STAMSON: Okay. Thank you. MR. MONNENS: My name is Mark Monnens. I live at 4070 Eau Claire Circle in Prior Lake. I'm the builder on this thing here. Just a couple questions on -- that I have on here. You know, the neighbor next door on the left side of this house is like 6.6 from its garage door to the property line. And the neighbor on the right is 9 foot 3. I mean, we're sitting back now at 20 feet, we'd like to go to 13.4. I mean, we're back less than what they are Page 16 Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) --- 1 2 3 4 5 6 7 8 9 10 11 12 /--13 14 15 16 17 18 19 20 21 22 23 24 r- 25 Page 17 on the two sides right now. And what we'd like to do is put a porch on here. If we can't put a porch on here now and a year and a half from now we get a variance not a variance but we get, you know, the property 1n front, the 40 feet 1n front taken back to the homeowner it's not going to help us much to put a porch on at that time. We can only put on a 6 foot deck. There 1S a lot of room on this property it's just it's gotta get vacated back to the homeowner. It's been sitting like this for probably 15 years or so. So we're trying to get it now so we can have a porch on it at this time now, otherwise we're limited to what we can do. Thank you. MR. STAMSON: Anybody else care to speak? Being the case I'll close the public hearing and move to commissioner comments. Commissioner Atwood, care to start? MS. ATWOOD: Thank you. I have to support staff on this. I agree, I saw the property and I agree that there 1S, you know, the feeling and visual space that would should allow this and because of the road and the right-of-way. However, the two neighbors on either side as staff suggested in their report, it is presumed that they -- there will probably be new dwellings on those properties Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,'-- 1 2 3 4 5 6 7 8 9 10 11 12 ,--13 14 15 16 17 18 19 20 21 22 23 24 -25 Page 18 at some point. And I guess I'm just saYlng that just to address Mr. Monnens' comment. I just can't find a proven hardship and think that back at the drawing board you could shave 6 feet off. So I support staff. MR. STAMSON: Okay. Thank you. Commissioner Lemke. MR. LEMKE: Thank you. You know, I think the gentleman should be able to build this house given the room, but I don't think this lS the forum for it. I too can't find the hardship or practical difficulty considering the size. It's not an unreasonable size, but what's unreasonable here to me is the amount of land that is being -- that is being taken in an essence by this right-of-way when I don't think the road in any practical sense lS ever gonna impact his lut. But like I say, I don't think this body is going to be able to correct that. I wish I could somehow, but I'm going to have to support staff. MR. STAMSON: Okay. Thank you. Commissioner Criego. MR. CRIEGO: I agree with the other commlSSloners. The lot I believe is large enough to put a nice home on. My take is if the~ redo some of Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) r' 1 2 3 4 5 6 7 8 9 10 11 12 ,.-- 13 ! 14 15 16 17 18 19 20 21 22 23 24 /--- 2 5 Page 19 the garage where the garage is versus where it is now they could probably shave off 6 feet and still have their porch, their deck. I don't see any hardship here. MR. STAMSON: Thank you. I have to agree. I think this is another -- the hardship here is created by the design. There is plenty of building pad there to put a house in. And I just don't see, you know, as the ordinance applies a hardship. I think the applicant's right that the county road being placed where it is is somewhat unusual. And as Vaughan mentioned I think probably the forum for that addressing that is with the county. They've got the right-of-way. If they want to vacate some to allow this and depending on their design that's probably not unreasonable, but I don't think that's for us to do and I really don't think -- we have looked at some smaller front yard setbacks, but generally they're on fairly small streets along the lake, small residential streets and here we're talking about a county road. And I guess without, you know, some input from the county or, you know, the design process being complete I'm just not comfortable imposing on the county right-of-way that way. I think the appropriate Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) r-- 1 2 3 4 5 6 7 8 9 10 11 12 r-- 13 14 15 16 17 18 19 20 21 22 23 24 ,-. 2 5 ' Page 20 forum for this lS that if you want to use that space up front is to get a vacation from the county. And as Commissioner Atwood mentioned, you know, the houses next door are closer but were built quite awhile ago and they'll be facing the same situation at some point if it's going to be if they're going to be redeveloped. I think that's probably something that, you know, especially since the county is in design review right now of that project it's probably a good time to approach them, you know, as, you know, pretty much all the property owners down that whole stretch. Maybe you can solve the whole thing right in one fail swoop. But I don't think this a variance is appropriate or the correct forum for (inaudible). So I will not support this as well. With that open it to any further comments. Anybody have any other comments? No. That being the case I'll support a motion. Does somebody care to make a motion? MR. CRIEGO: I'll make that motion adopting resolution 03011PC denying the 6.5 front yard setback variance for the construction of a single family dwelling. MR. STAMSON: Okay. I have a motion by Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) r- 1 2 3 4 5 6 7 8 9 10 11 12 -,13 ( , 14 15 16 17 18 19 20 21 22 23 24 .r- 25 Commissioner Criego. Do I have a second? Page 21 MR. ATWOOD: I'll second. MR. STAMSON: A second by Commissioner Atwood. Any further discussion? All those in favor vote aye. UNIDENTIFIED SPEAKERS: Aye. MR. STAMSON: All those opposed. And the resolution passes 4 to 0 with Commissioner Ringstad abstaining. And agaln, this can be appealed to the City Council and by any effective party within five calendar days. MS. KIRCHOFF: Mr. Chair, just as an FYI, Mr. Hines, I know he may probably already be aware there is an open house on the County Road 12 project tomorrow night at Bipox (phonetic) Elementary School from just a minute. UNIDENTIFIED SPEAKER: (Inaudible. ) MS. KIRCHOFF: Be a good opportunity for you to talk to them. *** MR. STAMSON: Then we'll move to agenda item 5C. MS. KIRCHOFF: Thank you, Mr. Chair, Planning Commission. Tim and Jane McCoy are Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ( 1 2 3 4 5 6 7 8 9 10 11 12 r- 13 i 14 15 16 17 18 19 20 21 22 23 24 -25 Page 22 requesting variances to construct a 14 foot by 20 foot deck addition to an existing single family home on the property that's located at 2830 Fox Run Northwest. Excuse me. Specifically the applicant 1S requesting a 12.1 foot variance from the required 15 foot setback, as 3.3 foot variance from the required 10 foot setback. This property was platted as part of the Wilds. It directly abuts the Wilds fairway, specifically hole number 5. And as part of the Wilds plan unit development the property was allowed to have a 15 foot rear yard setback rather than a 25 foot rear yard setback that's required in the R-l use district. In 1995 a building permit was issued for the construction of single family home on this property. And on the building permit there was a note from staff that a future deck may have potential setback problems. It was also noted on the building permit that their proposed impervious surface should be removed to comply with the 30 percent maX1mum coverage. On this survey submitted with the building permit application the dwelling was noted as being 15.2 feet from the property line at the closest point, and after the dwelling was completed Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,,- I 2 3 4 5 6 7 8 9 10 11 12 .__ 13 14 15 16 17 18 19 20 21 22 23 24 -- 25 Page 23 the previous owner constructed a deck on the property. The applicant, the current applicant removed that deck and commenced the construction of another deck on the property without a building permit and the City did receive a complaint so the building inspection staff inspected the site and issued a stop work order and this application for the setback variance followed that order. To reiterate, the applicant would like to build a 14 foot by 20 foot deck on the rear of the home. The deck is proposed to maintain a 2.9 foot setback from the rear property line and a 6.7 foot setback from the side property line. The deck does comply with all of the required setbacks as is obvious by the survey. The applicant lS also proposing to encroach into the drainage and utility easement. In order to do that there would be a separate action that would need to take place, and that action although it was noted on the agenda, the private use of public property agreement is not to be acted on In this meeting. Staff apologizes for that error. That lS something that the City Council reviews and it's not to be acted on this evening. Staff has calculated the impervious Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,.-- 1 2 3 4 5 6 7 8 9 10 11 12 ,r- 13 14 15 16 17 18 19 20 21 22 23 24 .--.25 Page 24 surface coverage of this site and it's approximately 37 percent. As noted, the building permit did request that the impervious surface be reduced to the 30 percent. Staff would like to see it reduced that 30 percent. Now, the deck would not be counted towards that impervious surface. Decks that are open to the sky don't have a roof and that have at least a quarter inch spacing between the boards are not considered impervious surface. So that wouldn't impact the existing impervious surface on this site. And as noted, the Wilds PUD did allow a 15 foot setback on the properties that abut the golf course fairways. This property has already been granted a rear yard setback of 10 feet in essence, and they've already taken advantage of that relief. As noted, the house was built just over 15 feet from the rear property line. In terms of the variance hardship findings, the shape of the lot did not preclude a home from being constructed on this property. A single family dwelling is permissible and reasonable use of this site. The lot has ample buildable area so the strict setback requirements in conjunction with the lot shape did not create any type of - practical difficulty or hardship for the previous Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) -- 1 ( 2 3 4 5 6 7 8 9 10 11 12 (13 14 15 16 17 18 19 20 21 22 23 24 /-25 Page 25 owner or the builder of the home. The house does comply with the required 15 foot rear yard setback and the side yard setback. The granting of the rear yard and side yard setback variances are not necessary for the preservation and enjoyment of the substantial property right of the owner as the applicant does currently have a single family dwelling on the property. The construction of future deck was noted as part of the building permit application, and a deck lS not typically an element of the reasonable use. The City has denied setback variance for deck additions In the past. Staff also believes that the granting of the rear and side -- or rear yard setback specifically would unreasonably impact the character of this neighborhood and create a new neighborhood rear yard setback when the established setback is 15 feet along the property line that abuts the golf course. Furthermore, the varlances serve as a convenlence to the property owner because if we can look at the overhead here, a small balcony can be constructed for access to the outdoors. The existing door is located on this elevation of the Pat Carl & Associates (763) 591-0535 or (800) 59l-9PCA (722) ,--- 1 2 3 4 5 6 7 8 9 10 11 12 ,r-- 13 14 15 16 17 18 19 20 21 22 23 24 ,'- 25 Page 26 dwelling. The requested relief is not necessary to alleviate any kind of undue difficulty or hardship, it's based upon the applicant's desire to over build the property. In conclusion, the applicant would like to construct a 14 foot by 20 foot deck addition on their property. It's on PUD and so. In order to do such, a rear yard setback variance and a side yard variance -- side yard setback variance are required. As noted, the strict application of these setbacks do not pose an undue difficulty for the property owner. The subject property has a substantially larger home footprint and adjacent properties, and approvlng the requested setback variances would provide advantage to one property owner when relief has already been granted with the plan unit development. Based upon the findings set forth in this report staff does recommend denial. However, the Planning Commission does have three options. The first is to approve the variances, the second lS to table the variances, and the third is to deny. Again, staff does recommend alternative three. In the action tonight is a motion in second to adopt a Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,-- 1 2 3 4 5 6 7 8 9 10 11 12 /-- 13 14 15 16 17 18 19 20 21 22 23 24 r- 25 Page 27 resolution denying those two setback variances. With that I'd be happy to answer any questions that you may have. MR. STAMSON: Any questions? MR. CRIEGO: Two questions, Cindy. First of all, was the impervious surface done at the original building of 1995 or was it done afterwards? MS. KIRCHOFF: The impervious surface calculation was noted on the survey and the staff, the Planning Staff did note that it was in excess of the 30 percent and it was asked that it be reduced. MR. CRIEGO: But the inspection did not check that and have that take place? MS. KIRCHOFF: Staff didn't notice any sort of inspection with that in the building permit ap file. MR. CRIEGO: And in the deck, when was the deck built and how large was the deck? MS. KIRCHOFF: The deck that was on the house previously, it's my understanding they didn't get a building permit for it so I don't know exactly how large it was, but based upon the pictures that the applicant has submitted it appeared to extend the full width of the home along the golf course. MR. CRIEGO: I see. Thank you. Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,~ 1 2 3 4 5 6 7 8 9 10 11 12 1--- 13 14 15 16 17 18 19 20 21 22 23 24 - 25 Page 28 MS. KIRCHOFF: Uh-huh. MR. STAMSON: Anybody else have any questions? With that I'll invite the -- MR. LEMKE: I'm sorry, if I might. Thanks, Tony. Does staff have any recommendations or thoughts for this commissioner anyway about how the impervious surface could be reduced? MS. KIRCHOFF: It appears as though some of the driveway could be removed and that would be about the only thing. That was noted as an issue on the original building permit that perhaps some of the driveway could be reduced. MR. LEMKE: Does it -- just, do you know the width of the street? Is it 24 feet or 1S it -- UNIDENTIFIED SPEAKER: It's 1n a cul-de-sac. MS. KIRCHOFF: This property is on a cul-de-sac. I can't tell you how large that is. MR. LEMKE: I was just curious. Thank you. That's all I have. MR. STAMSON: Anybody else? With that I'll invite the applicant up to speak if they care to. MR. BATES: Good evenlng, Mr. Chairman, Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,,"- 1 2 3 4 5 6 7 8 9 10 11 12 -13 14 15 16 17 18 19 20 21 22 23 24 -25 Page 29 commission members. My name is Jim Bates. I'm an attorney in Prior Lake and I'm here representing the McCoys. I would like to submit for the record some letters In support of the application, copies of which I sent to each of the commissioners and to Ms. Kirchoff. Also like to provide the commlSSloners with copies of the photographs that were attached to the narrative we included with the application, which I note were not attached to the packet that was given to the commissioners. I would with your permission submit those letters and I would also provide each of you with photographs which (inaudible) . MS. KIRCHOFF: Thanks. MR. BATES: And I would note that those photographs were included with the original variance application, and what you can see is that the -- when the McCoys were presented with this house which they purchased through a foreclosure so they didn't have an opportunity to speak with the builder or the previous owner, they found this deck that went all the way across the back of the house. And at the point at which they're proposed deck exists it had the same extension toward the property line. That is the same violation of the setback. Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) -- 1 ( 2 3 4 5 6 7 8 9 10 11 12 ,---13 c 14 15 16 17 18 19 20 21 22 23 24 --25 Page 30 I have reviewed the permit file and I did note the mention about the impervious surface. I just want to make the point that the impervious surface situation was there when the McCoys bought the house. That is, they didn't do anything with the driveway. And as I understand it, if the property were to be back to the 30 percent impervious surface essentially the McCoys would have to remove about something over 900 square feet of driveway, which with all due respect I think is not reasonable. Just a couple of comments with respect to the staff's reaction. One is the -- I'm confused about the terminology deck addition, because as I say the original deck that was there was quite a bit larger and the McCoys are, permitted or not, trying to replace at a much smaller Slze a substantially larger deck. So it is to my mind is not in any sense an addition. When they saw this property you'll note ln the narrative we mentioned that they have invested over 300,000 in the property. Most of this was not for improvements but rather to correct the effects of serious neglect by the prevlous owners. There was a lot of interior water damage. And so Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,-- 1 2 3 4 5 6 7 8 9 10 11 12 ,-13 14 15 16 17 18 19 20 21 22 23 24 -- 25 Page 31 the work has been primarily to bring it back up to ordinary standards. One of the most important things I think is that the quality setback was reduced for properties that abut on the golf course fairways. There was a good reason for that. You have an expansive area that in this case is a large fairway and is, unless the golf course is done away with, is going to be a substantial open area. And the setbacks become less important except perhaps for the golfers who are hitting balls out of bounds and hoping they're going to bounce them back In. This is not this relief was not individual to this house. The amendment to the PUD was -- included all of the half and 30 acre lots that abutted the golf course. So this particular property didn't get any special favors. Also would mention in passing, and Mr. and Mrs. McCoy are here together with a number of their neighbors, but it's my understanding that they did make an attempt to find out if there were any difficulties with the property. Unfortunately, they asked Scott County and Scott County for some reason did not direct them to the City of Prior Lake to check on the regulations so they didn't have any awareness of what the previous owners or the Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,--- 1 , 2 3 4 5 6 7 8 9 10 11 12 r-- 13 14 15 16 17 18 19 20 21 22 23 24 -- 25 Page 32 previous builder had done. Again, and you've heard this already tonight but I will repeat it, this is a problem that while it was caused by a previous property owner it was something that was visited on the McCoys who had no involvement with it. We do think that a 4 foot balcony off the side of the house with no view of the fairway is not -- is unreasonable restriction on a house of this character which certainly 1S intended to take advantage of the view of the golf course. We believe that variances give city governments the opportunity to relieve the effect of strict application of ordinances where they're going to deny a person a reasonable use of the property. We believe that this deck is of a minimally reasonable size. It's consistent with the homes 1n the neighborhood and we respectfully ask that the comm1SS1on grant the variance. I would be happy to answer any questions. I'm sure Mr. McCoy would as well. MR. STAMSON: Thank you. I don't have any questions at this point. Thank you. MR. BATES: Thank you. MR. STAMSON: With that I'll open the flDor to public comment. If anybody cares to speak Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,- 1 2 3 4 5 6 7 8 9 10 11 12 ,-13 14 15 16 17 18 19 20 21 22 23 24 .~~ 25 Page 33 please step to the microphone. MR. ALLEN: My name lS Horace Allen. I live at 2802 Fox Run. And I guess the first word I'd like to talk about is vision. I moved into the Wilds in December 1997. And as most of you folks may know the situation at that time was not pretty. The Wilds had just come out of (inaudible). Anyone who looked at a home in the Wilds would be very apparent that you had to have vision on this day that you were going to invest a significant amount of money in the property that for the most part I would probably guess 80 percent of the homes are for sale. And when I moved in lot of folks kind of laughed and said well, this thing may not take off. I think when you look at what Tim and Jane had come into, that home they bought was sitting idle and was not in very good shape for about a year. The gras~ had gotten out of the hand, the shrubbery had gotten out of hand. And in fact, the windows were broken. It was pretty sad. And for the folks who had the VlSlon to move into Prior Lake and move into the Wilds although a vast majority of the homes, in fact I'd pretty much say almost all the homes are for sale, needed to invest in this community and believe that what was going on here was right. Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ~ 1 2 3 4 5 6 7 8 9 10 11 12 r- 13 14 15 16 17 18 19 20 21 22 23 24 ,~ 25 Page 34 When I first met Tim and Jane they were like myself. They believed in the community and they believed that this thing was going to be a go. And both myself and Mike kind of watched and they carne and visited and decided that they were going to have the vision to invest back in this property. And 300,000 what I would call little bit on the low side, when I walked to the back of the deck as he was constructing it, in fact if you wouldn't mind I'd like to show them the pictures of the horne, the prevlous horne, the back of the deck that was there. If you look at that, that lS a monstrous deck. And when I walked in the back I said what, are you kidding me. Did you just run out of money. Because the deck he's building is fundamentally smaller than the previous deck. And so when he told me there was an issue with getting his new deck I just kind of laughed. I couldn't believe it. And so I'm not sure about all the technical lingo about percentages and numbers, but I guess if I were buying the property and I were to look at it and think I was going to shrink the deck size down to a third the last thing that would cross my mind is that it wouldn't get approved. So I just want to say Tim and JaDe Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) I~ 1 2 3 4 5 6 7 8 9 10 11 12 r--13 14 15 16 17 18 19 20 21 22 23 24 /_. 25 Page 35 walked into a not so pretty situation, invested in the home, had the same vision that I had about six years ago that the Wilds in Prior Lake was a good deal, and I just can't see anyone being on a golf course without at least having a reasonable size deck and that reasonable size deck being one-third of the previous deck. Questions at all for me? MR. STAMSON: Couple questions. MR. ALLEN: Sure. MR. STAMSON: Do you live -- you're the house immediately to the east? MR. ALLEN: I'm the house across the street, 2802. MR. STAMSON: Oh, across the street. Okay. Okay. Was the house occupied, this house occupied when you moved In or was it -- MR. ALLEN: It was occupied. It was. MR. STAMSON: Okay. Was the deck existing at that point? MR. ALLEN: Yes, Slr. MR. STAMSON: Okay. Okay. I was trying to remember. At one point it was a model and I was trying to remember MR. ALLEN: In fact, my house is the it's the rambler, the long rambler on the fourth Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,.- 1 2 3 4 5 6 7 8 9 10 11 12 /--- 13 14 15 16 17 18 19 20 21 22 23 24 ,-, 25 Page 36 hole right In front of the pond. MR. STAMSON: Yep. MR. ALLEN: That's where I live. In fact, our decks, my deck lS very similar to the deck that was there previously. So I kind of laughed. I couldn't believe the deck he was building was so small. I'm thinking as a joke you just ran out of money. So. MR. STAMSON: Okay. Okay. Thank you. Anybody else have any questions? MR. ALLEN: Thank you. MR. STAMSON: Thanks. MR. BACH: Good evening. My name is Michael Bach. I live at 2827 Fox Run right across the street from Mr. McCoys. And basically I have to completely agree with what Horace Allen absolutely just said. When I bought my house about two years ago it was kind of basically the same thing, moving into the Wilds was kind of a touch and go type of situation. And when the house was occupied by its previous tennant the deck that was on there was -- it was -- it was absolutely it was huge. And for what Tim and Jane are doing to that particular property, what they have done to that property has Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) -- 1 / 2 3 4 5 6 7 8 9 10 11 12 _13 14 15 16 17 18 19 20 21 22 23 24 -25 Page 37 been outstanding. They've really brought on a lot to our particular cul-de-sac. I think that if anything the golf course is probably very well appreciated for what the McCoys have done to that particular property. Everything from the inside of the home to the outside of the home to the landscaping of the property. And we all know that that golf course attracts a lot of golfers every day and every year. And I think it's very advantageous for the golf course to also have the properties that are around the golf course in that particular area, the front part of the golf course, and considering the back part, but to look to the very best that they possibly can. And for what Tim and Jane are doing to their particular deck lS just -- I find it just ludicrous. It's just -- it's a huge, huge improvement to my particular neighborhood that I pay significant amount of money and taxes and for my particular home to live there. And I just -- I just think that the deck is fine. I'm finished. Do you have any questions? MR. STAMSON: I don't think so. Thank you, Mike. MR. BACH: Thanks. (End of Side A of tape.) Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) -- I 2 3 4 5 6 7 8 9 10 11 12 /- 13 14 15 16 17 18 19 20 21 22 23 24 ~ 25 Page 38 MR. FACENTE: Good evenlng. My name is Bob Facente. I live at 2817 Fox Run with my wife Sally. We recently built the home there. We moved in in September. My concern was when I moved, when I originally bought that lot that I had seen what had happened to that house across the street it was vacant. And I held back my plans somewhat to see exactly what would happen with the home. When I saw what I had seen over the past several months is a couple that have put their blood, sweat and tears into improving a house that probably would have been a detriment to everybody in that area. These folks have as Mr. Allen says, as Mike has just stated, we're all neighbors there and we've been pleasantly surprised with what we've seen. I physically viewed the existing -- or the previous deck. I could understand why McCoys want to improve it. The deck was hazardous. It probably -- you know, if they wouldn't have made effort to replace that deck I'm sure something may have happened. Again, the deck lS about -- I'm not sure the size, I saw the photos of the old deck. It's minuscule compared to what I think that other deck was. So I guess my concern lS here or what I'm trying to say is that I support what they're Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,'--' 1 2 3 4 5 6 7 8 9 10 11 12 ..__ 13 14 15 16 17 18 19 20 21 22 23 24 (- 25 Page 39 doing. I think -- I don't know that anyone in the area couldn't have supported or won't support it because what they're doing is a dramatic improvement to that property and to the -- all the homeowners should be very thankful. Is there any questions that I can answer? Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) - 1 ( 2 3 4 5 6 7 8 9 10 11 12 /-- 13 " 14 15 16 17 18 19 20 21 22 23 24 /.......25 Page 40 realize at the time that I needed the City's permission to do anything to the deck. When we -- myoId homesteading on the house I asked the county I said I need to replace some boards, I may want to take down some of the deck because it prohibited some of the views which the outside windows on the lower level, and they said as long as I don't add anything to it or change the structure of it, make it larger that they didn't see that would be any issue. When we found time to do so we started to correct the deck problem. In my personal opinion when I took the property over it was -- had 28 broken windows all broken from the interior. The house did not meet the Wilds neighborhood codes as far as colors. The gentleman before he left was kind enough to paint it bright pink. The house was way overrun with garbage. We took out, I'm not exaggerating when I say 8 tons of garbage from the property, inside trash, broken glass, broken furniture, just plain old garbage that sat In the house for over a year. The neighbors have come to me and complimented me besides these fine people that their children now can play on that street because there is no more FBI sitting in the street watching the house, there is Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,~ 1 2 3 4 5 6 7 8 9 10 11 12 ~' 13 14 15 16 17 18 19 20 21 22 23 24 ,,~25 Page 41 no more prostitution gOlng to that house. My wife and I saw a vision there, we liked the house, the neighborhood is a wonderful place to be, it's a cul-de-sac which we wanted. I call it an old folks home, everything is on the main level. Our children are grown. Our grandchildren can play in the cul-de-sac with other children that were not allowed to play out on a Saturday because of the activity In that house. That gentleman is no longer around, thank goodness. And we didn't intend to do anything to upset the City or the county here, you people, we just want to have a reasonable size deck to enjoy that property. There was four years worth of back taxes unpaid on that which I paid for that when I purchased the property. Water bill unpaid, association dues unpaid. We've spent a lot of time there and we're asking for what I consider very reasonable size area to enjoy with my grandchildren and friends on a nice Sunday afternoon when the golfers go by. We both play golf. I talked to the golf course about the situation, they're very pleased with our performance because some of their golfers was wondering why that house was in such bad shape. Mike, the owner of the golf course came out about probably a month ago Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) -- 1 2 3 4 5 6 7 8 9 10 11 12 __13 14 15 16 17 18 19 20 21 22 23 24 ~.25 Page 42 because he had so many people that played golf there were commenting about it being painted, the yard being cleaned up, the grass was put back into shape, and he had to come out and take a look at it for himself. He couldn't believe it. He told me many stories I won't get into about the preVlOUS owner and why it was bad, it was junk cars in the driveway, the house was in terrible shape for the City of Prior Lake. The police department don't have to go there anymore. My wife and I are very keep to ourself type of people. I think we've done a wonderful thing for the community and I don't think a 14 foot deck when it was already there is too much to ask. That quality of house shouldn't be, in my opinion anyway, kept to a little catwalk where you can't sit down and enjoy it when I'm paying taxes to enjoy the golf C0urse. If you have any questions. I appreciate your time. MR. CRIEGO: Mr. Chair? MR. STAMSON: Sure. MR. CRIEGO: I do have one question. Is there a door on the northeast corner of that knockoff where you MR. McCOY: That lS correct. Ther& 1S Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,,--. 1 I 2 3 4 5 6 7 8 9 10 11 12 ,-13 14 15 16 17 18 19 20 21 22 23 24 -25 Page 43 a door gOlng out off the kitchen area. That's correct. MR. CRIEGO: And that's the northeast side. Is there one on the northwest side? MR. McCOY: No, sir, there is not. We thought -- there lS no way to put a door on that side because on the interior wall there is a built in television fireplace combination on that wall. Even though if you look on the picture it shows a blank wall there, but on the interior there is a TV cabinet built in, all around the hardwood floor obviously, fireplace there, so on so forth. So there is no way -- there would be no way to get to a deck on the other side of the house (inaudible) some type of large area and we don't really think that we need a deck that large. We'd like more of the yard and the flower type program. We plan to plant some flowers along the back of the house there in the spring and with that deck the way it was you couldn't plant anything there. MR. CRIEGO: The three that I'm looking at, the northwest side of your property now the home, there is three windows. Is that your living room? MR. McCOY: The three large windows? Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) r- 1 2 3 4 5 6 7 8 9 10 11 12 -13 14 15 16 17 18 19 20 21 22 23 24 - 25 Page 44 MR. CRIEGO: Yes. MR. McCOY: That's correct. MR. CRIEGO: And that window lS about 2 feet from the floor right there on the -- MR. McCOY: I would say probably that's fairly close (inaudible) . MR. CRIEGO: Thank you. MR. STAMSON: Any further comments? MR. McCOY: I have no more (inaudible) . Just to help clarify, clarify those windows that we have there for you. I just though of it. That is a formal type living room area and a set of sliding doors would take away from the entry area when you first enter the home. That's why those large windows there. And we thought about maybe with a sliding door it would take away from the formalness of the home. So I just thought I'd clarify that. Thank you. MR. STAMSON: Actually as long as you're there, the inside of the part we're looking at is a family room; correct? MR. McCOY: Excuse me? MR. STAMSON: The inside of the part that juts out there where you're attaching the deck to, is. that a family room? Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) -- 1 (' 2 3 4 5 6 7 8 9 10 11 12 r-13 14 15 16 17 18 19 20 21 22 23 24 ..~.25 Page 45 MR. McCOY: Yes, it lS. MR. STAMSON: Okay. And then the kitchen is back must be where the door -- the door exits from the kitchen, or. . . MR. McCOY: The area you see jut out lS if you go to the south that would be where (inaudible) . MR. STAMSON: And that's where the door -- MR. McCOY: MR. STAMSON: attached to that portion? MR. McCOY: Correct. MR. STAMSON: Okay. Why not go with just out of question, why extend the deck out the front there as opposed to maybe filling in the corner where the door is? Correct. That's the door lS MR. McCOY: Well, because you can only fill in the small corners of the deck, I'll go out and have a barbecue and one chair there and have no view of the golf course as far as the fairway. MR. STAMSON: Okay. Does your neighbor's house sit quite a bit back? MR. McCOY: That's correct. MR. STAMSON: Okay. Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) r' 1 2 3 4 5 6 7 8 9 10 11 12 ,,-. 1 3 14 15 16 17 18 19 20 21 22 23 24 ,"-' 2 5 Page 46 MR. McCOY: Where his deck and stuff sits, that deck does not impact, excuse me, his view of the golf course at all. The house (inaudible) can't change it. I never would have dreamt that I'd be standing in front of you fine people discussing this situation because the deck was there, I thought I'd be taking down a piece of the deck so I could -- we could plant some flowers along that area, replace some deck boards and that would be the end of it. Unfortunately that's not it. MR. STAMSON: Unfortunately it happens too often. MR. McCOY: Well, I mean, you know, if it would have been something that I would have been involved in or if the house of that caliber wouldn't have had a deck -- in my opinion it had to have a deck on it because, you know, front what I understand it was listed in, you know, the 7 to 800 range when it was on the parade. I don't know anybody in their right mind would buy a finished house of that caliber on both levels finished with a 2 foot by 2 foot deck on it. I mean, somebody would say gee, if I'm gOlng to spend $800,000 I want to be able to sit out there and enjoy my golf course. MR. STAMSON: Actually I don't think-at Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ~ 1 " 2 3 4 5 6 7 8 9 10 11 12 ~13 14 15 16 17 18 19 20 21 22 23 24 --25 Page 47 the time it did have a deck. (Inaudible) MR. McCOY: I don't know. I wasn't there. I'm just saYlng. MR. STAMSON: (Inaudible) showed up In the original plan. MR. McCOY: I don't know how it got there. MR. STAMSON: And this is strictly from memory, I think it was just a platform out there but that, you know, it was probably something to do with the builder and what they built at the time, bu t. . . MR. McCOY: That could be. MR. STAMSON: But I assume Slnce the deck was built without a permit it must have been done after. 'MR. McCOY: That I don't know. MR. STAMSON: Subsequent. MR. McCOY: I mean, I just assume that it was being it was attached to the house and on footings that I wasn't in, you know, any violation. I just want to make that perfectly clear that we didn't MR. STAMSON: I can understand that. MR. McCOY: -- &ttempt to try to sneak Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,~ 1 2 3 4 5 6 7 8 9 10 11 12 ~13 I I 14 15 16 17 18 19 20 21 22 23 24 --25 a deck In there I guess is what I'm trying to say. MR. STAMSON: I can understand that. Page 48 Okay. MS. ATWOOD: Excuse me. Do you want to speak as long as you're up to the impervious surface issue, or. MR. McCOY: Well, I guess -- may I speak frankly? MR. STAMSON: Sure. MR. McCOY: I guess I had nothing to do with that and somebody, I don't know whom it was, but whoever okayed or whatever, how it ever got there someone had to give an occupancy permit. And from other homes that we've owned and other homes that we've built, you know, the City would come along and say you can do this, you can't do that. I don't know how it got that way. I mean, I know it's -- I would assume it'd been that way since it was built as a model and received an occupancy permit. If I had to tear out 900 feet of driveway I may end up with a 6 foot driveway on a million dollar house. I don't hardly think that's fair I guess. You know, it's not -- I think I've added -- I don't intend to add anything, taken some of the deck down to like I say so we can have some flowers in the backya Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) r- 1 2 3 4 5 6 7 8 9 10 11 12 ,_13 14 15 16 17 18 19 20 21 22 23 24 .,-... 2 5 Page 49 that type of thing. MS. ATWOOD: Who is the builder? MR. McCOY: Paramount Homes. Unfortunately they filed bankruptcy quite a while ago. So I mean, I don't feel I should have to be punished for mistakes that maybe the City may have overlooked because they were busy during the Parade of Homes things trying to get things done. You know, I've been in the building trades for most of life and during the Parade of Homes I'm sure you people realize that everybody lS running, everybody is trying to get everything done and somehow something got overlooked or someone mismeasured or whatever the situation occurred. I've spent an, you know, enormous amount of money to make that house and that neighborhood lncrease its property value. And I'm sorry that whoever did this did it wrong, but I don't feel I should have to pay for it either, I mean, you know, by having a driveway that's smaller than you'd have at some apartment buildings I guess lS what I'm asking. I mean, hoping that you people can see that. I hope anyway. I didn't realize that that was an issue until we got involved with this deck. I mean, it's all been kind of a nightmare. You know, we bought a house, painted it, Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) -- I 2 3 4 5 6 7 8 9 10 11 12 ;-- 13 14 15 16 17 18 19 20 21 22 23 24 -~25 painted all the insides, replaced the broken windows, boy we're really happy, and all of a sudden, you know, somebody gets unhappy with us that lives In the neighborhood and says oh, boy, we're going to tattle on him. I didn't know that I was doing anything wrong and then all of a sudden this is the surface program came up. I'm going what could happen next. You know, which part of the house do I have to take off. You know. I mean. I don't know, that's kind of the way we feel. I can't believe that all this is happening. And if my apologies mean anything I'm sorry that this has happened, but we had nothing to do with it all. We bought what we thought would be a good home, a good investment, and help the community. And 80 percent of the neighbors on that street feel that way. I mean, there is people told me our kids can play out there on Saturday now. We don't worry about it anymore. And I think it's good for the community. I think we did the right thing and we're proud of what we've done and I hope that you glve me my variance so I can sit on my deck in the spring. Thank you for your time. MR. STAMSON: Thank you. Unless anybody else cares to speak I'll close the public. Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) Page 50 ~ 1 i' 2 3 4 5 6 7 8 9 10 11 12 , .--13 14 15 16 17 18 19 20 21 22 23 24 .--25 Page 51 hearing. I'll move to commissioner comments. Commission Ringstad. MR. RINGSTAD: Thanks. Tim and Jean, it sounds like you've done terrific things to the home based on what I've read and the neighbors that have spoke on your behalf tonight. In reading the staff's report I've got -- I'm going to agree and disagree with what's in the report. First of all, with respect to the deck, as noted in the report it looks like the previous owner chose to use what could have been future deck space with enclosed residential living space and make that trade for all future property owners. It was noted on the building permit application that a potential deck problem could exist if indeed they wanted to go with that footprint, which apparently it did. I commend you for trying to check with the appropriate governmental agency which you went down to Scott County which did not turn out to be correct, but that was much more foresight than I would probably do and probably 99 percent of other people checking out a home that they're buying. So you were certainly going down the right path with that. It's unfortunate you didn't get steered toward the City Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ~ 1 2 3 4 5 6 7 8 9 10 11 12 ,..-1-. 1 3 14 15 16 17 18 19 20 21 22 23 24 /-25 Page 52 of Prior Lake to get some of the answers you were looking for. So that being the case, I'm not going to be able to support the deck as you're requesting tonight. However, with respect to the impervious surface I do agree with you. You were not a party to that overage that appears to be primarily the concrete with the driveway. Obviously could be a house or something else, but the concrete would be the most reasonable and legitimate place to perhaps remove it down to 30 percent. But a building certificate of occupancy was granted based on, you know, that concrete driveway, that footprint, that type of thing unless it was added like your deck was added sometime after the fact which of course lS possible. But I'm okay with leaving it where it's at. It's far in excess of what we usually look at. But the fact that it's there, the fact that you bought the property in good faith with it being there I don't see any reason for you to chop off anything or to remove anything to get down to 30 percent. Thanks. MR. STAMSON: Thank you. Commissioner Atwood. MS. ATWOOD: Thank you. So this Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) -- 1 2 3 4 5 6 7 8 9 10 11 12 ,-- 13 14 15 16 17 18 19 20 21 22 23 24 ,.- 25 Page 53 actually we are not voting on impervious surface tonight? MS. KIRCHOFF: No, that was just included with commissioner approval. MS. ATWOOD: Information. MR. RINGSTAD: You brought that up, Cindy. I'm sorry. MS. KIRCHOFF: No. That's fine. MS. ATWOOD: If we were voting on it tonight I'd agree with you, I would want that left in because that was not part of the -- it was not added after the -- after the fact. I am well aware that this property wasn't alone in its granting the 15 foot setback because it was -- the development was a PUD. It isn't this property, it's all the properties that have this I'd feel this same way. And I hate, hate this having to happen tonight, but I too cannot support this variance request. And I am very sorry because what you have done for your neighborhood and the Wilds itself and both Prior Lake is wonderful. But deck addition or the terminology, you know, notwithstanding, it is an addition to the house that can't be supported because it does encroach too much and we already had granted, or it was already at a Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) /-- 1 2 3 4 5 6 7 8 9 10 11 12 ___ 13 " 14 15 16 17 18 19 20 21 22 23 24 -,25 Page 54 15 foot setback. So given that, I am sorry to say that I cannot support the request. MR. STAMSON: Thank you. Commissioner Lemke. MR. LEMKE: Thank you. I've got a couple of questions. The -- regardless of what happens tonight the easement, the question of the easement still has to go before the City Council, lS that what you said? MS. KIRCHOFF: Mr. Chair, if the varlance would be granted the applicant would have to approach the council about the private use of public property agreement, yes. MR. LEMKE: Thank you. In looking at the Wilds PUD it says here that a half acre and a third acre home sites were 15 feet and the villa home sites were reduced to 5 feet from the golf course. Being that the golf course lS not here tonight I have to interpret their silence as being that they are in agreement with the deck. And with the amount of space that's there I don't see a problem with it. Based on that, what I would support would be a 12 foot deck. I wouldn't set a 14 so that it would require -- it would be 5 feet Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,- I 2 3 4 5 6 7 8 9 10 11 12 ,-13 14 15 16 17 18 19 20 21 22 23 24 ,- 25 Page 55 from the golf course like they've allowed the villa homes to be rather than 3 feet as proposed. The applicant had a deck when he bought the house and I don't -- this lS a case where I think strict interpretation is taken away something that was on the house when he bought it. Had he just chosen to replace the deck boards this is what we'd have and we'd have no recourse to do anything about it. He's not asking for this, he's asking for 14x20. Said I'd support 12 feet by 20 just based on the villa town homes being 5 feet. I think there lS a hardship and a practical difficulty because there was a deck on the house when he bought it. MR. STAMSON: Mr. Criego. MR. CRIEGO: Thank you, Mr. Chair. This is a very difficult situation. We have an applicant whose'put a lot of work and energy into a horne, put a lot of money into it, upgraded the neighborhood, everybody is happy with what he's done, he's tried to do the right things and here we are tonight talking about a variance for a deck that he's reduced to size and considerably. The original deck was illegal, did not have a permit, would not have been allowed if it was brought to the City, but yet he~e we have a good Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) r- 1 2 3 4 5 6 7 8 9 10 11 12 ,-- 13 14 15 16 17 18 19 20 21 22 23 24 ..,-.. 2 5 Page 56 citizen, stakeholder in the community wanting to improve the property, has improved the property and now is kind of in a situation of denial of a deck that he's reduced in size. It's a very, very difficult problem and one that we can easily say he does not conform, which he does not, and we can easily say that he should not have a deck there, and he should not. And here we are up here trying to do the best we can for the community and the best we can for the applicants that come forward. It's a very difficult issue. Even if we do pass it tonight if we had the -- if it did meet the hardships that are put down he'd still have to go through an easement consideration. And you've got basically a permanent structure on an easement with the pillars and the support mechanisms for the deck. So that's even in question whether that would be approved. And that's not for us to decide, that apparently is for the City Council to decide. But we have to go by the strict rules here. It was an illegal deck, it lS an illegal deck, and therefore the hardship in my oplnlon has not been met. And I feel badly about that, but I don't know how I can in good conscience say that the deck should be approved or the variance Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) r- 1 2 3 4 5 6 7 8 9 10 11 12 .--13 14 15 16 17 18 19 20 21 22 23 24 '-'25 Page 57 should be approved. There may be some alternatives for you on that northwest corner of the porch that you have. It's not an easy thing to implement, but given sliding glass doors aren't necessarily the doors that you need to put there you could have French doors and things of this sort. I apologize, but I cannot in good conSClence provide a variance on this request. On the issue of the impervious surface, 37 percent in my mind, that was done at the time of the development of the home. There was an occupancy permit provided and it was not this owner's fault that that took place. It seems to me what we ought to do tonight is exercise a variance to allow 37 percent impervious surface because now if we don't do something, if we don't have the variance for that particular issue that's going to haunt the property for a period of time also. So agaln I apologize, but I can't see the need in this case to provide a varlance. Thank you. MR. STAMSON: Thank you. I agree with Commissioner Criego who I think has spelled out the situation fairly eloquently. I think it's a very Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,r-- 1 2 3 4 5 6 7 8 9 10 11 12 r-- 13 14 15 16 17 18 19 20 21 22 23 24 ,--- 2 5 I Page 58 difficult situation and I certainly empathize with you as well. But as we discussed with the previous issue, first variance we discussed tonight, really the issue here isn't one of ordinances it's one of design. You know, the person who designed and laid out the home didn't leave themselves space for a deck and I don't think it was unintentional. I think the placement of that door being back where it is probably is indicative that that was their intent and that they're aware of it if they certainly were made aware of it at the design point. And when you look at hardships and variance criteria it just simply doesn't meet it. While it -- you've done a beautiful job with the home, I just can't -- I can't see granting a variance based on hardship given the conditions. As far as the 30 percent, it's really in this particular instance has nothing to do with the deck variance so I don't think it really should address it at all this evening. But if Commissioner Criego pointed out we want to direct staff to do something with it we certainly can. UNIDENTIFIED SPEAKER: Unless staff feels there lS a different alternative here. MS. KANSIER: For the impervious Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ",-- 1 2 3 4 5 6 7 8 9 10 11 12 r- 13 14 15 16 17 18 19 20 21 22 23 24 r- 25 Page 59 surface, well, I don't think you can -- you can't just grant a variance tonight. It's not something we published for. I think what we can do based on your direction is place a note in the building permit file as a nonconformity, a legal nonconformity. We can -- obviously should someone want to place some sort of an addition on at some point that would increase the impervious surface other than a deck. For example, that, you know, they'd have to go through the variance procedure at that point. But I think unless, you know, what we suggested in our report was if you were to choose to approve this variance that that should be a condition of approval. That was not to suggest that we were going to say he had to remove it at this point if you didn't grant the variance. UNI0ENTIFIED SPEAKER: The 37 percent, now, was the home built, this is just for discussion purposes as opposed to any -- doing anything, but when the home was built the 37 percent was in the original plans, am I understanding that correct? Did it show up someplace or what do -- do we know when that became 37 percent? MS. KIRCHOFF: Staff calculated it as part of the variance application. The 30 percent Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) r- 1 2 3 4 5 6 7 8 9 10 11 12 .~.13 14 15 16 17 18 19 20 21 22 23 24 /-25 : Page 60 carne in to -- was an issue with the building permit application. It was over by a couple of percentage points. I don't recall exactly what it was, but it was an issue at that time. MR. RINGSTAD: What was the impervious surface requirement back then in 1995 or 1996 or the PUD? MS. KIRCHOFF: 30. MR. RINGSTAD: It was 30. MS. KIRCHOFF: Uh-huh. MR. CRIEGO: Mr. Chair, it seems to me we've seen something like this before. I remember a few years back where there was some ownership changing taking place on a property and it was 32 or 33 percent impervious surface instead of 30 and they carne to us with a variance request and we did approve it at that time because of previous hardship and previous problems. We can certainly do it the way you suggest, but the applicant may want to sell the property or do something with the property and that 37 percent may be a problem at that point. So the question lS is what does staff recommend we do. I'm not sure something to the file would solve that problem. MS. KANSIER: You know, I guess other Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,'--- 1 2 3 4 5 6 7 8 9 10 11 12 r---13 14 15 16 17 18 19 20 21 22 23 24 r-25 Page 61 than -- I don't know. I'd have to talk to the City Attorney about that issue and figure out what the best course lS to take. MR. STAMSON: My concern is the fact that it, you know, isn't a legal, and it wasn't existing prior. It was certainly existing prior to his ownership, but it wasn't existing prior to the ordinance or anything else that -- we've also required people to tear extra impervious surface out In that situation. I guess my preference would be to let sleeping dogs lie if at all possible. MR. RINGSTAD: But building in what you said though, I mean, this is something that at some point in time could corne back to haunt the property owner with respect to sale or with respect to any other type of improvement they want to do. Just seems to be a sentiment, at least tonight, that something that we would like to deal with on behalf of the McCoys and procedurally we're just wondering how to accomplish that. MR. CRIEGO: And if Jaden (phonetic) wants to talk to counsel and discuss it with Don or whatever it probably would be appropriate. UNIDENTIFIED SPEAKER: Yeah. The way -- the way that it could be done would be to have Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) r--- 1 2 3 4 5 6 7 8 9 10 11 12 /"- 13 14 15 16 17 18 19 20 21 22 23 24 (-. 25 Page 62 someone apply for a variance and you could grant it through, but -- UNIDENTIFIED SPEAKER: UNIDENTIFIED SPEAKER: Right. You have to apply the varlance. UNIDENTIFIED SPEAKER: Yeah. It's not something you could do this evening. UNIDENTIFIED SPEAKER: I don't think that's a slam dunk by any means. UNIDENTIFIED SPEAKER: No, it's not. Not at all. I'm not suggesting it lS. UNIDENTIFIED SPEAKER: We'd have to talk to the City Attorney to look at that issue. MR. STAMSON: Okay. With that I'll entertain a motion unless there is any further discussion. MR. RINGSTAD: Make a motion adopting resolution 03-013PC denying the 12.1 foot rear yard setback variance and the 3.3 foot side yard variance for the construction of a deck addition. MR. STAMSON: I have a motion by Commissioner Ringstad. Do I have a second? MS. ATWOOD: MR. STAMSON: I'll second. Second by Commissioner Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,..-- 1 2 3 4 5 6 7 8 9 10 11 12 ,..-- 1 3 14 15 16 17 18 19 20 21 22 23 24 :,-. 2 5 Page 63 Atwood. Any further discussion? All those in favor vote aye. UNIDENTIFIED SPEAKERS: Aye. MR. STAMSON: Opposed. MR. LEMKE: Nay. MR. STAMSON: Motion passes 4 to 1 with Commissioner Lemke dissenting. And again, you can appeal this to the City Council in writing within five calendar days. Can we take five minutes? Okay with everybody? We'll adjourn for five minutes. (End of Tape.) Pat Carl & Associates (763) 591-0535 or (800) 591-9PCA (722) ,--- 1 2 3 4 5 6 7 8 9 10 11 12 (,13 14 15 16 17 18 19 20 21 22 23 24 (' 25 Page 64 I do hereby certify that the foregoing 63 pages of typewritten matter were transcribed from a mechanical recording device and contains, to the best of my ability, a true and correct transcript of the proceeding held relative to the aforementioned matter. c-' ,- /'\ \D ~ n f .' ,"." ,. ~ . ..-{ \-'tN \J!.. JV'C'/ Sara Jane Wyckoff, 'Notary Public .1'-.' /'_ i-, -'" ,. -,!' ':\IrV...";\hhJ'./i>,;',\,' '."" c". 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Allen 33:2,235:9,12,17 35:20,2436:3,11,16 38:13 alleviate 26:2 allow 4:9,21 6:15 11:1 ,"'-- 17:21 19:1524:11 57:15 allowed 22:1141:7 55:1,24 alter 3:23 alternative 7:8 26:24 58:24 alternatives 7:5 57:2 amendment 31 : 13 amount 18:14 33:10 37:1849:1554:22 ample 24:22 answer 7: 12 12:21 13:4 27:232: 1939:7 answers 52: 1 anybody 16:4 17:14 20:1828:2,2232:25 36:1039:1246:19 50:25 anymore 42:10 50:19 anyway 28:642:15 49:22 ap 27:16 apartment 49:20 apologies 50:12 apologize 57:8,20 apologizes 23 :22 apparent 33:9 apparently 51:1756:19 appeal 63:8 appealed 21: 10 APPEARANCES 2: 1 appeared 27:23 appears 28:8 52:7 applicant 3:4,224:1,4 4:8,185:96:4,4,9,18 6:21,249:2522:4 23:2,'''9,1625:726:5 27:2328:2354:12 55:3,1760:19 applicants 56: 10 applicant's 6:11 19:10 26:3 application 3:24 4:7 5:8 6:2,25 7:3,7 22:2323:725:10 26:10 29:4,8,17 32:13 51:15 59:25 60:2 applied 4:8 6:9 10:5,6 10:14 applies 19:9 apply 4:4 62:1,6 appreciate 42:19 appreciated 37:3 approach 20:1054:13 appropriate 19:25 20:1451:1861:23 approval 53:4 59:14 approve 4:67:626:22 59:13 60:17 approved 34:2456:18 56:2557:1 approving 26: 15 approximately 11: 12 24:1 arch 13:16 arches 13:15 arching 13: 18 area 5:3,256:1824:22 31:6,837:11 38:12 39:241:1843:1,15 44:12,13 45:5 46:8 asked 27:11 31:2240:3 asking 12:16 41:17 49:21 55:9,9 Assistant 2:8 association 41 : 16 assume 47:14,19 48:18 attached 29:7,9 45:12 47:20 attaching 44:24 attempt 31 :20 47:25 attention 39: 19 attorney 29:261:2 62:14 attracts 37:8 Atwood 2:3 12:22,24 17:17,1820:321:2,4 48:449:252:24,25 53:5,962:2463:1 average 4:22,25 averaged 4:22 avoid 10:12 aware21:1553:13 58: 10,11 awareness 31 :25 awhile 20:5 aye 21 :5,6 63 :2,3 B Bach 36:13,14 37:24 back 7:189:11 12:9 16:24,2517:5,918:3 29:2230:731:1,11 34:6,8,11,13 37:12 38:741:13 42:3 43:1845:3,2358:8 60:6,13 61:14 backyard 48:25 bad 41 :2442:7 badly 56:23 balcony 25:2332:7 balls 31: 10 bank9:18 bankruptcy 49:4 barbecue 45:20 based 26:3,1927:22 51:652:1254:23 55:1058:1559:3 basically 36:15,19 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