Loading...
HomeMy WebLinkAbout4A - 15370 Fish Point Road SE Variances PC report_Full 4646 Dakota Street SE Prior Lake, MN 55372 PLANNING COMMISSION AGENDA REPORT MEETING DATE: August 12, 2024 AGENDA #: 4A PREPARED BY: PRESENTED BY: PAUL MORETTO, PLANNER PAUL MORETTO AGENDA ITEM: PUBLIC HEARING TO CONSIDER A REQUEST FOR A VARIANCE FROM SUB- SECTION 1130.403 OF THE SHORELAND REGULATIONS ON A PROPERTY LO- CATED IN THE R-1 (LOW DENSITY RESIDENTIAL) ZONING DISTRICT AND SHORELAND OVERLAY DISTRICT AT 15370 FISH POINT ROAD SE DISCUSSION: Introduction Property owner, Carrie Ingalls, is requesting a variance after-the-fact from the zoning code to allow retaining walls that were constructed without a permit in the Bluff and Bluff Impact Zone to remain. The subject property is legally described as Lot 8, Block 1, Maves 2nd Lake Addition and is located along the north shore of Candy Cove on Lower Prior Lake, at 15370 Fish Point Road SE (PID: 250480080). Prior Lake City Code, Subsection 1111.100 defines a Bluff and Bluff Impact Zone as: Bluff. A topographic feature such as a hill, cliff, or embankment having all of the fol- lowing characteristics: • Part or all of the feature is located in a Shoreland area; • The slope rises at least 25 feet above the Ordinary High Water Level (OHWL) of the water body; • The grade of the slope from the toe of the bluff to a point 25 feet or more above the Ordinary High Water Level averages 30% or more; and • The slope must drain toward the water body. Except that an area with an average slope of less than 18% over a distance of 50 feet or more shall not be considered part of the bluff. Bluff Impact Zone. A bluff and land located within 20 feet from the top of a bluff. History The property is zoned R-1 (Low Density Residential), is guided R-LD (Urban Low Den- sity) in the 2040 Comprehensive Plan, is located in the Shoreland Overlay District of Prior Lake and includes a bluff. The home was built around 1960 per Scott County GIS aerial photos and the property was purchased by the current owner, Carrie Ingalls, in August 2021. Prior to Ms. Ingalls purchasing the property, the previous property owners received a grading permit from the City of Prior Lake and around April 2021 removed a large con- crete retaining wall and restored the bluff area. Around October 2022, the property owner hired a landscape contractor who began work within the bluff which involved work on existing retaining walls and construction of new retaining walls. 2 The City of Prior Lake initiated a code enforcement action in late October 2022 for grading and construction of retaining walls in a bluff prior to obtaining a permit. As a result of the code enforcement action, a grading permit was applied for on October 31, 2022 for the retaining wall and grading work, which was denied by the City of Prior Lake as the property already had existing retaining walls in the bluff and City Code does not allow for more than one wall in the Bluff or Bluff Impact Zone. Subsection 1130.403 (2) of the Shoreland Regulations states, retaining walls shall not be permitted in the bluff impact zone or bluff setback except for the following: (a) Construction on an existing retaining wall that consists of the repair or exact replacement of the existing wall, provided the grade of the land within the bluff impact zone or bluff setback and the location and size of the retaining wall do not change and the new retaining wall will create no more impact in the bluff impact zone or bluff setback than was caused by the existing retaining wall. (b) If there are no existing walls in the bluff impact zone or bluff setback, construc- tion of one (1), single retaining wall less than four (4) feet in height not longer than the width of the property as measured by a straight line perpendicular to the side lot lines at the structure setback from the OHWL. The proposed wall shall be a minimum of 25 feet from the OHWL. Current Circumstances The property previously included a large concrete retaining wall, which had been re- moved and the bluff area had been restored prior to the applicant purchasing the prop- erty. After acquiring the property, the property owner hired a landscape contractor who constructed new retaining walls and replaced previously existing retaining walls in 2022 without obtaining a permit. According to the contract, the work included: • Extending an existing boulder wall to wrap around an oak tree to raise grade for more backyard space; • Installing a boulder wall behind the firepit area to help level it out and enlarge the firepit area; • Finish grade the back yard and disposed areas along the access path and install new sod; • Install six (6) sawn fieldstone boulder steps for access to the firepit area; • Installation of an irrigation system to all turf areas; and • Installation of compacted grey trap rock to the new enlarged firepit area. Prior Lake City Code Subsection 1130.403 (2) does allow for the construction of one single retaining wall less than four (4) feet in height not longer than the width of the property. Had no retaining walls existed previously, one single wall, not exceeding four feet in height and approximately 85 feet in length could have been approved through the proper issuance of a grading permit; however, since several retaining walls already existed on the property, City Code would not have allowed staff to issue a grading permit for additional retaining walls on the site. What exists currently, including the work completed in the fall of 2022, is a series of five retaining walls totaling approximately 220 feet in length. The property owner is requesting a variance after-the-fact to allow the newly constructed retaining walls to remain. 3 Addressing the Applicant’s Narrative The applicant has provided a very detailed application and narrative, which has been provided to the Board of Adjustment. In summary, the applicant’s position and justifi- cation for approval of the variance request are identified below with a staff response to each point. The applicant will be provided with an opportunity to share additional infor- mation with the Board of Adjustment during the meeting. In general, their position in- cludes, but is not limited to: • The property owner had concerns about erosion and bluff stability. The previous property owner did not adequately repair the bluff to address erosion and sed- iment issues, and the new retaining walls improved the stability of the bluff. A large concrete retaining wall was removed and the bluff was restored in 2021. We do not know the condition of the bluff when work was completed in 2022 as no permit was applied for and no engineering reports were completed to verify bluff stability prior to installation of the walls. Erosion concerns may have been able to be addressed through plantings and maintenance of the previously re- stored bluff area. • The property owner and contractor were not aware of the City of Prior Lake’s bluff regulations. The Zoning Code is widely available for review on the City of Prior Lake website as well as a link to a retaining wall handout and retaining wall permit. City staff is available by phone or email and regularly meets with property owners and contractors to review plans and answer questions prior to the start of projects; particularly on lots located in the Shoreland District. • The cost to remove the retaining walls would be great. Economic considerations alone do not constitute practical difficulty. • A new wall was installed in close proximity to the concrete wall that was re- moved in 2021, which is allowable in the bluff zone as a replacement wall. The applicant contends the new retaining wall constructed in the fall of 2022 is essentially a replacement wall for the wall that was removed in the spring of 2021 and that is arguably permissible under the City Code as nowhere in Code does it state the homeowner removing an existing wall must also be the home- owner replacing a formerly existing wall. Staff does not agree. The previously removed concrete wall was considered a legally nonconforming, or “grandfathered in” structure. Prior Lake City Code Subsection 1123.201 (2) addresses a reduction in nonconformity and states, any nonconformity which is reduced in size, intensity or otherwise becomes more conforming may not again expand or become less conforming. Removal of a structure, relocation, reduc- tion, or elimination of any site element, such as outdoor storage, is a reduction in intensity. Removal of the concrete wall and restoration of the bluff in 2021 eliminated the nonconforming wall and represents a reduction in intensity. By eliminating the concrete wall, the nonconformity was removed and the property came closer to 4 conformance with current City Code regulations. A property owner does not have a right, without proper variance approval and permitting, to reestablish a nonconformity and make the property less conforming. • A new staircase was installed but is allowed as a staircase is excluded from the requirements of the bluff ordinance. The suggestion that the stairway going to the fire pit is permitted because it is excluded from the bluff ordinance is false. Stairways are addressed in the Shoreland Regulations and are permitted as a “preferred alternative to major topographic alterations for achieving access up and down bluffs and steep slopes to shore areas.” The stairs in question provide access to the fire pit area, not the shore area. The property does have an existing stairway to the shore area which was installed around 2013. • The fire pit area should be allowed to remain because a fire pit existed in a similar location previously. The applicant states the boulder wall and staircase were intended to provide the homeowner with a safer and more usable social space in their backyard. Photographs were provided showing a fire pit area existed at the time the prop- erty was purchased in 2021; however, the fire pit had a small boulder wall and paver stones for access, not steps. The fire pit area constructed within the Bluff Impact Zone in 2022 was greatly intensified with the addition of six steps and significantly larger boulder walls. The application materials imply the fire pit area was completed between June 2020 and July 2021 and is a historically permitted use. The fire pit area is not a historically permitted use. The city does not have a record of a permit being issued for the fire pit area and such a permit would have required variance approval due to the location in the Bluff Impact Zone. Staff does not dispute that a previous property owner may have installed a fire pit in that area without proper city approvals, but the construction of a fire pit in violation of city code requirements does not create a legal nonconforming, or “grandfathered in” use. In order for a use to be considered legally nonconforming, the use must have been legally established before the effective date of the ordinance change that prohibits it. In this case, a fire pit in that location was never permitted and a fire pit in that location would not have complied with city code regulations at the time it was constructed. Staff does not view additional yard/social space as a reason for granting a var- iance request. The applicant provided the MN DNR Shoreland & Floodplain Variance Guidance Se- ries as Exhibit A to their application. This document provides a series of resources to help local governments make informed decisions on variances affecting Minnesota’s shorelands, floodplains, and designated riverways. On page 3 of 6 within these DNR guidelines is a category for evaluating variances against the statutory criteria. One of the five criteria listed is, the problem is due to unique circumstances of the property not created by the landowner. 5 Unique circumstances relate to physical characteristics of the land such as lot shape and dimensions. Unique circumstances do not include personal matters unrelated to the property itself, such as health difficulties, a growing family, or design preferences, or changes made to the property by the property owner that prevent compliance with the ordinance. Steep slopes, floodplains, riparian vegetation, and erodible soils are common, and not usually unique, in shoreland areas. Owning and developing land in these sensitive ar- eas requires acknowledgment of these conditions and designing with them in mind; that is the point of shoreland and floodplain regulations. Considerations: What distinguishes this property from other properties subject to the shoreland regulations to justify deviation from the requirements when others must com- ply? Has the applicant demonstrated that no feasible alternatives exist that would not require a variance? Is the application motivated by economic concerns or design pref- erences? As the document states, steep slopes and erodible soils are not unique in shoreland areas. Prior Lake’s Shoreland Regulations seek to limit the amount of development in the bluff impact zone due to these concerns. The regulations allow for the construction of one wall of less than four feet in height not longer than the width of the property to address steep slope and eroding soil concerns. In staff’s opinion, the variance request is a result of design preferences for a larger back yard with more social space, the variance is not a result of unique circumstances as Prior Lake has several bluff lots, and the need for a variance is a result of circumstances created by the landowner. ISSUES: This project includes a request for a variance. Section 1152 states that the Board of Adjustment may grant a variance from the strict application of the provisions of the Zoning Ordinance, provided that: 1) Variances shall only be permitted when they are in harmony with the general purposes and intent of the Zoning Code. The granting of the variance is not in harmony with the general purposes of the Zoning Code. The Shoreland Regulations allow for construction of one (1), single retaining wall less than four (4) feet in height not longer than the width of the property as measured by a straight line perpendicular to the side lot lines at the structure setback from the OHWL within the Bluff Impact Zone to address an environmental concern. In this case, a retaining wall of approximately 85 feet in length would be permissible. The subject property has five walls totaling approximately 220 feet in length. Removal of the two retaining walls installed without a permit, which total approximately 100 feet, will result in approximately 120 feet of retaining walls remaining on the prop- erty; which exceeds the current regulations which would allow for approxi- mately 85 feet. 2) Variances shall only be permitted when they are consistent with the Comprehensive Plan. The granting of the variance is not consistent with the goal area of Environ- mental Stewardship & Recreation and related objective to protect and en- hance the quality of Prior Lake’s surface waters, included as part of the City 6 of Prior Lake’s 2040 Vision and Strategic Plan identified in Chapter 1 of the 2040 Comprehensive Plan. The granting of the variance is also not consistent with the Land Use Goals and Objectives identified in Chapter 3 of the 2040 Comprehensive Plan, which states, development shall be conducted in a manner that is sensitive to the impact upon natural features and to environmental constraints, in- cluding but not limited to surface water, wetlands, slopes, woodlands, veg- etation, drainage ways, shoreland, and flood plain areas. The City of Prior Lake has regulations in place to protect and enhance Prior Lake’s surface waters and ensure development is conducted in a manner that is sensitive to the impact upon natural features and environmental con- straints. To that end, Prior Lake City Code allows for construction of one (1), single retaining wall less than four (4) feet in height not longer than the width of the property as measured by a straight line perpendicular to the side lot lines at the structure setback from the OHWL to address concerns related to bluff stability. Granting a variance to allow retaining walls two and one-half times the allowable length would not be consistent with these reg- ulations or the 2040 Comprehensive Plan. 3) Variances may be granted when the applicant for the variance establishes that there are practical difficulties in complying with the Zoning Code. “Practical difficulties,” as used in connection with the granting of a variance, means the property owner proposes to use the property in a reasonable manner not permitted by the Zoning Code, 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. Steep slopes and erodible soils are not unique circumstances to properties in shoreland areas. Prior Lake’s Shoreland Regulations seek to limit the amount of development in the bluff impact zone due to these concerns. The existing regulations allow for construction of one (1), single retaining wall less than four (4) feet in height not longer than the width of the property as measured by a straight line perpendicular to the side lot lines at the structure setback from the OHWL to address concerns related to bluff stability. The plight of the landowner is due to circumstances created by the land- owner and not circumstances unique to the property. The need for the var- iance is a result of circumstances created by the landowner who con- structed retaining walls in excess of the allowable length without proper per- mitting and approvals. The need for the variance is also the result of design preferences with the expansion of the rear yard area and creating an en- hanced social space within the bluff impact zone. 4) Economic considerations alone do not constitute practical difficulties. Although the applicant’s narrative references substantial expense to install the retaining walls and a great cost for removal, economic considerations alone do not constitute practical difficulty. 7 DNR Comments City staff provides notice of all variance requests within the Shoreland District to the Minnesota DNR for their review and comment. The City received the following com- ment from the DNR South Metro Area Hydrologist, “the applicant has not provided the information required per the city’s ordinance. Without the engineering report by a pro- fessional engineer, it cannot be determined whether the walls are truly required for the slope stability.” The DNR comment is referencing language in Subsection 1130.404 of Prior Lake City Code. This subsection states an engineering report shall be submitted when a building permit is required. The engineering report requirements are fairly in depth and include • A report and calculations prepared and signed by a professional engineer li- censed by the State of Minnesota on the bluff stability and the impact any ex- cavation, fill or placement of structures will have on the site and whether the excavation, fill, or placement of structures will cause any slope to become un- stable or will impose loads that may affect the safety of structures or slopes. The report shall include: • The global failure plane determination of the slope substantiated by at least one soil boring at an appropriate depth and location; • Analysis of the land influence zone and its intersection with the failure plane based on the soil type; • The engineer's recommendations for the proper design and maintenance of a drainage system so the site development will not interfere with adequate drain- age for the site or adjacent properties, will not obstruct, damage or adversely affect existing sewer or drainage facilities, will not adversely affect the quality of stormwater runoff, will not adversely affect downstream properties, wetlands or bodies of water and will not result in erosion or sedimentation. • If the initial determination indicates that the load influence zone intersects or falls within the global failure plane, a global stability analysis of the bluff shall be required. After construction is complete, an as-built survey and post- construction report completed by a professional engineer licensed by the State of Minnesota that the final grading of the site was completed in compliance with an approved grading plan and that the recommendations contained in the engineer's report have been adhered to. To provide a little context for the Board of Adjustment, the applicant’s position is an engineering report is not required as the wall(s) are less than four feet in height. Walls four feet or greater in the Bluff Impact Zone trigger a requirement for a building permit and engineering report, walls less than four feet require the issuance of a grading per- mit and do not require an engineering report. If no walls existed on this property and the property owner desired one wall less than four feet in height and less than 85 feet in width, an engineering report would not be required. However, had the property owner or landscape contractor contacted city staff prior to construction, they would have been told a variance is required for wall a wall (or walls) exceeding 85 feet in total length and an engineering report on the bluff stability and impact of construction, as detailed above, would have been required as part of the variance review process to confirm the walls were necessary to preserve the bluff stability and not simply for yard expansion and/or cosmetic purposes. 8 Conclusion After evaluating the variance application against the criteria, the following outcomes may be considered. • If the applicant fails to prove that all criteria are met, then the variance should be denied. • If the applicant demonstrates that all criteria are met, then the variance may be granted. • If findings support granting the variance, but the project will impact the public resource, then the variance may be granted but conditions should be imposed to mitigate the impacts. City Staff believes the requested variance is not warranted and recommends denial of the variance request. 60-Day Rule Minnesota Statutes 14.056 Subd. 5 requires an agency to grant or deny a variance petition within 60 days of receipt of the completed petition, unless the petitioner agrees to a later date. Failure of the agency to act on a petition within 60 days constitutes approval of the petition. The City of Prior Lake received the variance application on June 25, 2024, which requires a decision to grant or deny a variance by August 24, 2024. The next scheduled Board of Adjustment meeting is August 26, 2024. The Board of Adjustment cannot table this item without the petitioner agreeing to an extension beyond 60 days. ALTERNATIVES: 1. If the Board of Adjustment finds the requested variance is not warranted in this case, a motion and a second to adopt a resolution denying the variance requested at 15370 Fish Point Road SE because the Board of Adjustment finds a lack of demonstrated practical difficulties under the zoning code criteria identified in Sec- tion 1152 of Prior Lake City Code. 2. If the Board of Adjustment finds the requested variance is warranted in this case, a motion and a second to approve the variance requested at 15370 Fish Point Road SE and to direct staff to prepare a resolution of approval for consideration at the next Board of Adjustment meeting. RECOMMENDED MOTION: 3. This item cannot be tabled without the applicant agreeing to an extension. If the Board of Adjustment would like additional information from the applicant about the requested variance and the applicant agrees to an extension, a motion and a sec- ond to table or continue discussion of the item for specific purpose as directed by the Board of Adjustment Alternative No. 1 ATTACHMENTS: 1. Resolution 24-08PC 2. Location Map 3. Narrative and Attachments 4. Updated Affidavit 1 4646 Dakota Street SE Prior Lake, MN 55372 RESOLUTION 24-08PC DENYING A VARIANCE FROM SUBSECTION 1130.403 OF THE SHORELAND REGULATIONS ON A PROPERTY LOCATED IN THE R-1 (LOW DENSITY RESIDENTIAL) ZONING DISTRICT AND SHORELAND OVERLAY DISTRICT AT 15370 FISH POINT ROAD SE Motion By: Second By: WHEREAS, The Prior Lake Planning Commission, acting as the Board of Adjustment, conducted a public hearing on August 12, 2024, to consider a request from Carrie Ingalls, property owner and applicant, to approve a variance after-the-fact to allow five retaining walls of approximately 220 feet in length to remain within the Bluff Impact Zone on a parcel located in the R-1 SD (Low Density Residential Shoreland District) Zoning District at the following property: 15370 Fish Point Road SE, Prior Lake, MN 55372 (PID 250470150) Lot 8, Block 1 of Maves 2nd Lake Addition. WHEREAS, Notice of the public hearing on said variance request was duly published in accordance with the applicable Prior Lake Ordinances; and WHEREAS, The Board of Adjustment proceeded to hear all persons interested in this variance request, and persons interested were afforded the opportunity to present their views and objections related to the variance request; and WHEREAS, The Board of Adjustment has reviewed the application for the variance as contained in Case PDEV24-000015 and held a hearing thereon on August 12, 2024; and WHEREAS, The Board of Adjustment has considered the effect of the strict application of the provisions of the Zoning Code on the applicant’s property and the impact granting the Variance will have Comprehensive Plan. In addition, the Board considered the requirements of all other applicable State Statutes, the information in the application, the information in the staff report and the criteria set forth in Minn. Stat. 462.357, Subd. 6. NOW THEREFORE, BE IT HEREBY RESOLVED BY THE BOARD OF ADJUSTMENT OF PRIOR LAKE, MINNESOTA as follows: 1. The recitals set forth above are incorporated herein. 2. The Board of Adjustment hereby adopts the following findings: a. Variances shall only be permitted when they are in harmony with the general purposes and intent of the Zoning Code. The granting of the variance is not in harmony with the general purposes of the Zoning Code. The Shoreland Regulations allow for construction of one (1), single retaining wall less than four (4) feet in height not longer than the width of the property as measured by a straight line 2 perpendicular to the side lot lines at the structure setback from the OHWL within the Bluff Impact Zone to address an environmental concern. In this case, a retaining wall of approximately 85 feet in length would be permissible. The subject property has five walls totaling approximately 220 feet in length. Removal of the two retaining walls installed without a permit, which total approximately 100 feet, will result in approximately 120 feet of retaining walls remaining on the property; which exceeds the current regulations which would allow for approximately 85 feet. b. Variances shall only be permitted when they are consistent with the Comprehensive Plan. The granting of the variance is not consistent with the goal area of Environmental Stewardship & Recreation and related objective to protect and enhance the quality of Prior Lake’s surface waters, included as part of the City of Prior Lake’s 2040 Vision and Strategic Plan identified in Chapter 1 of the 2040 Comprehensive Plan. The granting of the variance is also not consistent with the Land Use Goals and Objectives identified in Chapter 3 of the 2040 Comprehensive Plan, which states, development shall be conducted in a manner that is sensitive to the impact upon natural features and to environmental constraints, including but not limited to surface water, wetlands, slopes, woodlands, vegetation, drainage ways, shoreland, and flood plain areas. The City of Prior Lake has regulations in place to protect and enhance Prior Lake’s surface waters and ensure development is conducted in a manner that is sensitive to the impact upon natural features and environmental constraints. To that end, Prior Lake City Code allows for construction of one (1), single retaining wall less than four (4) feet in height not longer than the width of the property as measured by a straight line perpendicular to the side lot lines at the structure setback from the OHWL to address concerns related to bluff stability. Granting a variance to allow retaining walls two and one-half times the allowable length would not be consistent with these regulations or the 2040 Comprehensive Plan. c. Variances may be granted when the applicant for the variance establishes that there are practical difficulties in complying with the Zoning Code. “Practical difficulties,” as used in connection with the granting of a variance, means the property owner proposes to use the property in a reasonable manner not permitted by the Zoning Code, 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. Steep slopes and erodible soils are not unique circumstances to properties in shoreland areas. Prior Lake’s Shoreland Regulations seek to limit the amount of development in the bluff impact zone due to these concerns. The existing regulations allow for construction of one (1), single retaining wall less than four (4) feet in height not longer than the width of the property as measured by a straight line perpendicular to the side lot lines at the structure setback from the OHWL to address concerns related to bluff stability. The plight of the landowner is due to circumstances created by the landowner and not circumstances unique to the property. The need for the variance is a result of circumstances created by the landowner who constructed retaining walls in excess of the allowable length without proper permitting and approvals. The need for the variance is also the result of design preferences with the expansion of the rear yard area and creating an enhanced social space within the bluff impact zone. 3 d. Economic considerations alone do not constitute practical difficulties. Although the applicant’s narrative references substantial expense to install the retaining walls and a great cost for removal, economic considerations alone do not constitute practical difficulty. 3. Based upon the findings set forth herein and withing Agenda Report 4A, the Board of Adjustment hereby denies the variance with the findings of fact provided. 4. The applicant is required to adhere to city code section 1130, and any other applicable code, of the City of Prior Lake. The owner is required to make an application for a grading permit for the removal of retaining walls that complies with all City Codes. 5. Compliance shall be achieved before March 1, 2025. PASSED AND ADOPTED THIS 12th DAY OF AUGUST 2024. _______________________________ Dan Ringstad, Commission Vice-Chair ATTEST: _________________________________ Casey McCabe, Community Development Director VOTE Johnson Kallberg Fenstermacher Ringstad Tennison Aye ☐ ☐ ☐ ☐ ☐ Nay ☐ ☐ ☐ ☐ ☐ Absent ☐ ☐ ☐ ☐ ☐ Abstain ☐ ☐ ☐ ☐ ☐ 15370 FISH POINT RD SE VARIANCE LOCATION MAP A SUMMARY OF THE PROPERTY LEGAL DESCRIPTION IS: LOT 08, BLOCK 01, MAVES 2ND LAKE ADDN., SCOTT COUNTY, MN. W�E 0 100 200 300 400 W ■-=--=----======---• Feet s