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HomeMy WebLinkAbout07(A) - Hearing to Consider an Appeal of a Variance Denial Related to Construction of Retaining Walls within a Bluff and Bluff Impact Zone at 15370 Fish Point Road SE Report15370 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 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 1 PRIOR LAKE PLANNING COMMISSION MINUTES Monday, August 12, 2024 1. Call to Order and Pledge of Allegiance: Vice Chair Ringstad called the Monday, August 12, 2024 Prior Lake Planning Commission meeting to order at 6:00 p.m. Those present were Commissioners Dan Ringstad, Michael Pasquarette, Christian Fenstermacher, Doug Johnson and William Kallberg. Also present were City Council Liaison Victor Lake, Community Development Director Casey McCabe, Planner Paul Moretto, and Deputy Clerk / Administrative Assistant Megan Kooiman. 2. Approval of Monday, August 12, 2024 Agenda: MOTION BY JOHNSON SECONDED BY FENSTERMACHER TO APPROVE THE MONDAY, AUGUST 12, 2024 PRIOR LAKE PLANNING COMMISSION AGENDA. VOTE: Ayes by Ringstad, Johnson, Pasquarette, Fenstermacher and Kallberg. The Motion carried 5-0. 3. Approval of Monday, July 8, 2024, Meeting Minutes: MOTION BY FENSTERMACHER SECONDED BY JOHNSON TO APPROVE THE MONDAY, JULY 8, 2024, PRIOR LAKE PLANNING COMMISSION MEETING MINUTES VOTE: Ayes by Ringstad, Johnson, Pasquarette, Fenstermacher and Kallberg. The Motion carried 5-0. 4. Public Hearings: A. PDEV24 -000015 – 15370 FISH POINT RD SE – Variance Application – Property owner Carrie Ingalls is seeking a variance from the requirements of Section 1130 (Shoreland Regulations) of Prior Lake City Code to allow previously constructed retaining walls to remain in the Bluff Impact Zone. (PID: 250480080). Planner Paul Moretto: Introduced the Variance requested from homeowner Carrie Ingalls who is seeking a variance to allow pervious constructed retaining walls to remain in the bluff impact zone. Moretto shared the location and site details on the property; provided the City Code definition of Bluff and Bluff Impact Zone; shared a survey identifying the property and location of existing retaining walls within the Bluff Impact Zone, including dates when specific walls were removed and later constructed; provided an overview of City Code Shoreland Regulations detailing what is allowed to be constructed and replaced within the Bluff Impact Zone; shared photographs of historic site conditions, including previous walls; shared photographs of listing photos from the time when Ms. Ingalls purchased the property; shared photos of current site conditions, including locations of retaining walls; provided an overview of the landscaping contract and photos identifying the work that was completed in 2022; reviewed the applicant’s narrative and application materials, including the applicant’s reasoning for granting the variance; provided city staff comments on the applicants reasoning; reviewed the criteria for granting a variance identified in Section 1152 of City Code; and stated a staff recommendation to deny the variance request. Commission Comment/Questions: Kallberg: asked about the length of all retaining walls on the property and the history of all walls, whether they were permitted or were in place prior to current city code regulations. McCabe: responded the wall at the shoreline was in place at the time Ms. Ingalls purchased the property. The wall on the south side at the midpoint of the staircase and the wall on the north side of at the top of the staircase were believed to be rebuilt and not new. McCabe highlighted the walls that are recommended for removal. 2 Pasquarette: confirmed the area highlighted was the location of the wall removed by the previous property owner and the bluff was restored to a natural state. McCabe: correct. Pasquarette asked if the fire pit area was left when the previous wall was removed or if that was part of the restoration work. McCabe: deferred that question to the applicant. Indicated the fire pit area was shown on listing photos but was not sure of the condition at the time the property was acquired. Johnson: asked about the riprap wall closest to the lake and if that was located in the bluff zone and taken into consideration. McCabe: stated that wall is in the bluff and historical photos show some version of that wall has existed for several years. Staff is not recommending that wall be removed. Johnson: confirmed that wall would be taken into consideration as a wall in the bluff zone. McCabe: correct. Staff would view that as the one wall allowed in the bluff impact zone. Applicant Jim Hovland, 6800 France Ave. South, Edina Mn: Introduced himself, the property owner Carrie Ingalls, and Mike Morrison, landscape designer with River Heights Landscaping. Carrie Ingalls, 15370 Fish Point RD SE: Introduced herself and hoped all could work toward an equitable solution. Purchased home in August 2021 and allowed sellers to live there until spring. After moving in she noticed erosion problems and was unaware of the previous retaining wall at that time. Noted irrigation was not installed and it was a drought time and ground cover had not been established. Works with several building contractors and found River Heights Landscaping through a referral as a reputable company. Landscape was completed in late October and shortly after received a notice for working without a permit. Her understanding was landscaper would secure necessary permits. Notified landscaper who applied for permits and paid fees, issue was tabled until April due to snow coverage. Met with her attorney and city staff in April and discussed differing opinions on options to correct the situation. A comment was made at that meeting about replacement retaining walls being allowed so she researched and discovered a wall had existed previously. Stated she was unaware this wall existed before she purchased the property. Due to the previous owner not taking correct steps to restore the bluff and planted seed not taking, erosion had started and quickly made its way to the lake. The homeowner states that the landscape she has added greatly helped the erosion runoff into the lake and is a better situation now. The Homeowner states the with the city’s demand of removing the wall there are great concerns of erosion and runoff into the lake. Additionally, she expresses concerns for the four trees at the top of the bluff that have died; two have been removed. Concern with one tree remaining and damage to root structure if heavy equipment is needed to remove the wall. Believes the use is practical, did not intent to do anything wrong, commented about neighbor’s retaining walls and a great deal of the firepit was there. Commented about unsafe limestone stairs existing previously. Jim Hovland: along with the homeowner showed pictures of the previous retaining wall that was removed prior to purchasing the property and point out any differences in before and after pictures. Commented on neighboring houses to show the different types of retaining walls in the area and commented about erosion and runoff into the lake before the landscaping changes were made. Reviewed a photo of the property from the lake to show work that was completed in October 2022. 3 Shared a listing photo to highlight erosion concerns at the time of purchase. Showed a photo of the firepit/social area that was on the property previously. Shared a photo of a fence above the previous retaining wall where no firepit existed but loose boulders were shown on the property. Discussed the work that was completed in 2022. Mike Morrison, River Heights Outdoor Solutions, Inver Grove Heights: States that he was not a part of the company at the time the retaining walls were installed but is well read on the case and is representing the company. River Heights Outdoor Solutions was called in to address a sluffing and erosion issue because previous vegetation had not taken after previous wall was removed due to bad timing related to a drought. Attempted to improve the situation with existing plantings through the addition of the social seating and firepit area. Commented about some of the boulders used in the new retaining walls were on site. Intent was to armor the hillside and give property owner a good place to have seating, put surfacing on the ground, and replant because the seed had not taken the year before. Mr. Morrison commented that the landscape company was not completely familiar with the ordinance at the time and there was confusion about what was allowed under the ordinance. Stated the company works around a lot of bodies of water and do a lot of retaining walls; different regulations in different municipalities. Assumption was made the company could improve upon the social seating area. Jim Hovland: Asked Mr. Morrison if the retaining wall helped with the integrity of the yard. Mike Morrison: Stated the intensity may be higher with the new retaining wall and staircase but the company feels it helped the bluff integrity, provided the seating area they were going for at the time, and made revegetating easier around that area. Commented on the leaning oak tree and said the idea was to build the wall behind the tree to protect the root structure; believes the previous wall was below the tree. Jim Hovland: Commented on the significant amount of material included in the variance application and thanked the Planning Commissioners for taking the time to read the material because he feels it is important to understand the full context of the request to be able to preserve the work that was done by the property owner which he believes are a slight difference to what existed previously, better stabilizes the bluff and better protects the lake. Mr. Hovland stated variances are a means for departing from the strict enforcement of an ordinance as applied to a specific property and variances may be approved for area and dimensional standards, such as bluff protection. Mr. Hovland provided an overview of Prior Lake City Code criteria for considering a variance, including in harmony with the general purposes and intent of the zoning code; when consistent with the comprehensive plan; when there are practical difficulties are established. Mr. Hovland does not agree with the findings and conclusions in the staff report. As far as the request being in harmony with general purposes and intent of the zoning code, Mr. Hoveland encouraged the commissioners to think of the request in generalities, not specifics. Commented on the feet and length of walls identified in the staff report and many of those walls existed previously. Commented on general provisions of the zoning code, specifically Section 1110.102 (1), (7), and (10) related to protecting and maintaining stability of residential areas and feels the granting of the variance would accomplish those for environmental and bluff stabilization. Feels it is consistent with the comprehensive plan. Commented on retaining walls on another property in the neighborhood with walls they feel are more extensive and property owner’s landscaping is similar to other parcels in the neighborhood. As far as consistency with shoreland regulation, Mr. Hovland feels the health, safety and welfare of the lake is protected by granting the variance and ordering the walls removed would be contrary and would be more damaging to the shoreline. Is the variance consistent with the Comprehensive Plan is another point of disagreement. Granting the variance, in their opinion, will continue thoughtful use of the shoreland and would preserve and enhance this property, the bluff, and lake adjacent to the property. Disagrees with findings in the report related to noncompliance with the comprehensive plan. Property owner is proposing to use the property in a reasonable manner, staff ignored this comment in Section 1152.202. Variance will not alter the character of the locality. Practical difficulties can include functional and aesthetic concerns which is clear in the ordinance and law in 4 Minnesota. They believe the requested variance compiles in every sense with the spirit and intent of the ordinance. They believe the wall is permitted by ordinance as a replacement for the wall that was removed by the previous property owner. It would keep the stairs and siting area which they believe were a refinement of what existed previously. Commented on the increased plantings which are an improvement to the stability of the slope over what was done by the previous owner. Their proposed use is reasonable and demands of the city to remove the walls and regrade the slope will cause functional concerns and aesthetic diminishment of her property. Keeping the retaining wall will help save a large oak tree on the slope and the root system critical to stabilization. Granting the variance is better for the city than forced compliance with the code. Commented on the plight of the landowner being unique and not created by the landowner and staff’s comment about a slope not being a unique situation on this property. Mr. Hoveland does not agree and feels the plight is due to the steep slope on the lakeshore side. The request is due to erosion and sediment control due to the steep grade, protection of the oak tree and shoreland, and the lake by maintaining the current condition. Commented on previous property owner removing a large wall but failing to understand the consequences of adding fill and reseeding instead of replacing the wall. What the current property owner has done by replacing the wall is what the previous property owner should have done and this is arguably permissible as nowhere in the code does it say the homeowner replacing the wall must be the same homeowner who removed the wall. Mr. Hovland feels the current property owner replaced the previously removed wall. Granting the variance is not only important but critical in maintaining the stability of the bluff. Mr. Hovland summarized the history of the property and when the landscape work was completed, improvements had a positive impact, and any violations, if they exist, are minor. They request the variance be granted and landscape features be allowed to remain. Commissioners Questions to the Applicant: Kallberg: Questioned if the pervious concrete retaining wall was in place when Ms. Ingalls purchased the property in 2021. Ingalls: Stated no. She was not aware of the previous concrete wall when she purchased the property. The slope was basically dirt and seed which hadn’t taken hold. Didn’t realize the extent until she moved into the home in the spring and noticed erosion issues to the lake. Wasn’t aware of the wall until they met with city officials who said if there had been a wall that could be an exception to code, which allows for replacement walls. She then researched and found a wall previously existed on the property. Pasquarette: Commented on the applicant’s reasoning for the wall being the plantings not taking and asked if there was a consideration for replanting with hardier vegetation instead of putting in a rock wall. Ingalls: Stated she considered both and felt the best outcome was to put in a retaining wall. Did not feel plantings would be enough. Fenstermacher: asked staff to show the survey exhibit and clarified the location of the oak tree and asked for the location of the seating area in relation to the plan. Ingalls: confirmed the location of the seating area and commented on two trees in the seating area that have died since last fall. Stated a good portion of that wall was there previously. Fenstermacher: asked about the tree in that area that is dead. Ingalls: stated there are two trees in that area that have died; she believes one is on her property and one is on her neighbors’ property. Fenstermacher: asked to confirm the location of the stairs. 5 Ingalls: confirmed location of the stairs. Fenstermacher: asked the landscape company representative, Mr. Morrison, if planting additional plants would have been a solution to securing the slope. Morrison: Commented on the plantings and their locations that existed and his belief the plants were in the first year after seeding. Fenstermacher: commented on his understanding that the planting that was done before did not take and the plants needed to be replaced and reestablished. Asked Mr. Morrison if replanting and reestablishment would have been a legitimate step to stop the erosion. Morrison: replied that definitely would be an option and is used all the time. Commented on initial project thought to augment and make the social seating area better to address a slightly too steep slope area and make it better with steps and walls. Fenstermacher: asked if this was to make use of the area. Morrison: replied yes, opposed to more seeding and vegetation; to secure the social seating area and vegetate around it. Ingalls: commented that sod and an irrigation system were added to the back yard as well which helped with water runoff. Fenstermacher: Questioned if there were any attempts to get an engineer review done whether removing walls would reduce stability of the bluff area. Hovland: There was a conversation with an engineer but due to the walls being under four feet in height the homeowner and landscape company thought it would be sufficient to have the landscape company design the walls. If the commission would like an engineering report, the applicant would agree to an extension to the 60-day rule to allow for that to be completed. Commented on the testimony of Mr. Morrison to show the work that was done is an improvement over what was there before in terms of stabilizing the soil and eliminating sluffing into the lake. Johnson: Asked for an image to be shown highlighting the area recommended by staff for removal and asked what portions of the wall were installed under Ms. Ingalls ownership. Johnson: confirmed the lower fire pit was existing and the top section of wall was added. Ingalls: Right. Johnson: asked for a photo to be shown from the lakeside view and commented that the actual wall looks different in the photos than the survey. The survey shows the wall is broken but the photos show a complete wall. Ingalls: replied that it is not really a wall. There are buried boulders, and she would not consider that a wall. Johnson: commented that this work created a nice flat section of yard and asked where did the yard start to slope prior to this work. Ingalls and Hovland: responded to the location of the slope prior to the work being closer to where the top of the current staircases are. 6 Johnson: confirmed on the photo shown that everything to the left and right of the tree was added and asked if that was accurate. Ingalls: Yes. Ms. Ingalls could not recall for sure but felt there was a wall there that was added onto. Morrison: Stated there was not a wall but boulder outcroppings in that area. Commented the landscaping company utilized some boulders already on the property but was not sure what percentage of boulders were on the property; speculated almost half of the boulders may have been on the property. Commented about the wall above the sitting area being unconsolidated boulders and referred to an earlier image showing boulders in that area. Johnson: asked if the surface of the fire pit seating area was changed. Ingalls: A little bit larger. Johnson: asked if that area encompasses the tree that is now dead. Ingalls: Yes. Johnson: Asked if the area on the left side of the long staircase to the lake is on their property. Ingalls: Yes. Johnson: asked about erosion issues there. Ingalls: No. Thinks that area had more time for the vegetation to take hold. She is unsure when that was put in. Ringstad: Commented on being surprised the landscape company did not believe permitting would be required when looking at this project as they work in several communities with bluffs and lakes; to go ahead with the work without checking is surprising, acknowledging Mr. Morrison was not part of the company at the time this work was done. Morrison: commented about their language places the responsibility for permitting on the homeowner. Hovland: disagreed and felt that is not the language in the contract. Ringstad: thanked all for the comments and presentation. MOTION BY JOHNSON, SECONDED BY KALLBERG TO OPEN THE PUBLIC HEARING ON ITEM 4A AT 7:07 P.M. VOTE: Ayes by Ringstad, Johnson, Pasquarette, Fenstermacher and Kallberg. The Motion carried 5-0. Public Comment: No public comment received. MOTION BY PASQUARETTE SECONDED BY JOHNSON TO CLOSE THE PUBLIC HEARING ON ITEM 4A AT 7:08 P.M. VOTE: Ayes by Ringstad, Johnson, Pasquarette, Fenstermacher and Kallberg. The Motion carried 5-0. 7 Commission Comment/Questions: Johnson: Thanked the applicant for their presentation. Commented on being in an extremely unfortunate situation because what the property owner has appears to be nice landscaping and nice yard. Unfortunately, we are being asked to approve the variance after the fact and that is difficult because he is unsure what the board of adjustment would have done had they been tasked with this variance request prior to the work being started. The possible consequences of the hearing are not lost on him. What is weighing into his decision is the potential precedence it would set to grant a variance after the fact for work that possibly would not have been approved in the first place. Commented about other properties in bluff areas on the lake that would love to do this kind of work to expand their backyard, add seating areas and level out the areas adjacent to their house. If the tone is to do the work and apply for a variance after the fact, ask for forgiveness after the work is done, we are going to have a problem. Commented about being in a tough spot with a tough decision. What is weighing on the most is the precedent granting a variance after the fact would set. Fenstermacher: asked staff a question related to an engineering report and analysis related to concern over erosion if the wall were to be removed. Asked if it could be considered for an engineering analysis be completed. McCabe: summarized city requirements that if a wall is proposed higher than four feet an engineering report is required to justify the need for that wall and look at bluff stability. If staff received an application for a variance prior to work starting, an engineering report would have been required because the property already had retaining walls exceeding the maximum permitted length. As far as requiring an engineering report to deal with the removal of the wall creating an erosion issue, that would be up to the planning commission. Commented on the vegetation being more established now than in 2021 or 2022 when the property owner moved in, and the work was completed. Fenstermacher: Agreed with Commissioner Johnson’s comments related to setting a precedent. A previous owner made a decision to remove the wall and establish it with plantings and it sounds like that is a legitimate way. It seems it was decided afterward to add a wall partially for erosion but also aesthetic and use of the property. Understands that if the wall is to be removed and that makes the erosion issue worse, that is not good for anyone. He would entertain evaluating the erosion concern if the wall is removed. Pasquarette: Agrees with previous commissioners’ comments related to setting a precedent. Has a hard time leaping from the grass is dying to needing to put up a stone wall, especially without permits by a professional company who stated they would be responsible for getting permits. Expressed concern if the work is undone and commented that the commission does not want to see more requests for approval after the fact, after the work has been done. Ringstad: Stated he agrees with staff’s assessment completely. Approval of the variance after the fact could create a blueprint and encouragement for others in the city to make improvements along the lake within the bluff and bluff impact zone without proper city approvals and permitting. Recognizing if the variance is approved, the Board of Adjustment will need to be ready to approve similar requests with similar circumstances. Not exact circumstances, similar circumstances, because the commission would be creating a blueprint. He will be voting to deny the variance request. Kallberg: asked staff about a similar case for work done without a permit not far from this property. McCabe: did not recall the specific case but commented on a property where a deck had been converted to an enclosed structure without a permit and that property owner was required to remove the improvement. 8 Kallberg: commented on the rule that allows repair or replacement like for like. The criteria does not include making it pretty and does not include enlarging the social space. Stated we can’t keep ignoring permits and commented the landscaper must have thought about a permit because their agreement says the landscaper will acquire any permits; they should have at least inquired if there is a permit required. The commission has not received any information from an engineer stating whether this makes it better or worse. Commented on the property owner being willing to dig by the tree to install the wall but not being willing to dig by the tree to remove the wall over fear it will kill the tree. He will not be supporting the variance request. Ringstad: asked the Board of Adjustment if there were any more comments regarding the matter. MOTION BY KALLBERG, SECONDED BY PASQUARETTE DENYING THE VARIANCE REQUESTED AT 15370 FISH POINT RD SE. VOTE: Ayes by Ringstad, Johnson, Pasquarette, Fenstermacher and Kallberg. The Motion carried 5-0. 5. Old Business: A. PDEV 24 – 000011 – 14756 COVE AVE SE – Variance – Continuation of Previously Tabled Item to the Next Meeting – Continuation of Previously Tabled Request for a Variance from the Minimum Lake Setback on a Property Located at 14758 Cove Avenue. McCabe: introduced the item which was tabled at the prior Board of Adjustment meeting. Stated staff and the applicant are continuing to work on the request and recommended the Board of Adjustment continue the tabled item to the next meeting date. MOTION BY KALLBERG, SECONDED BY FENSTERMACHER TO CONTINUE THE TABLED ITEM UNTIL NEXT MEETING. VOTE: Ayes by Ringstad, Johnson, Pasquarette, Fenstermacher and Kallberg The Motion carried 5-0. 6. New Business: None. 7. Announcements & Adjournment: None. MOTION BY FENSTERMACHER, SECONDED BY PASQUARETTE TO ADJOURN THE MONDAY, AUGUST 12, 2024, PLANNING COMMISSION MEETING AT 7:20 P.M. VOTE: Ayes by Ringstad, Johnson, Pasquarette, Fenstermacher and Kallberg The Motion carried 5-0. Respectfully submitted, Megan Kooiman, Deputy Clerk / Administrative Assistant Casey McCabe, Community Development Director