MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, September 14, :00 o clock p.m.

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1 ROLL CALL The Orono City Council met on the above-mentioned date with the following members present: Mayor Lili Tod McMillan, Council Members Jim Cornick, Jr., Lizz Levang, Aaron Printup, and Dennis Walsh. Representing Staff were Finance Director Ron Olson, Community Development Director Jeremy Barnhart, Senior Planner Michael Gaffron, City Planner Melanie Curtis, Public Works Director/City Engineer Adam Edwards, City Attorney Soren Mattick, and Recorder Jackie Young. Mayor McMillan called the meeting to order at 7:00 p.m., followed by the Pledge of Allegiance. APPROVAL OF AGENDA Item Nos. 15, 18, 21, 23, 25, and 26 were added to the Consent Agenda. Levang moved, Cornick seconded, to approve the Consent Agenda as amended. VOTE: Ayes 5, Nays 0. APPROVAL OF MINUTES *2. REGULAR CITY COUNCIL MEETING OF AUGUST 24, 2015 Levang moved, Cornick seconded, to approve the minutes of the Orono City Council meeting of August 24, 2015, as submitted. VOTE: Ayes 5, Nays 0. *3. CITY COUNCIL WORK SESSION OF AUGUST 24, 2015 Levang moved, Cornick seconded, to approve the minutes of the Orono City Council work session of August 24, 2015, as submitted. VOTE: Ayes 5, Nays 0. PLANNING COMMISSION COMMENTS REPRESENTATIVE BRUCE LEMKE Lemke stated he had nothing to report but would be available for questions. PRESENTATION PRELIMINARY BUDGET INFORMATION Finance Director Olson stated this is a preview of the preliminary 2016 Budget that will be adopted by the Council at its next meeting in September. The final tax levy and budget will be adopted December 14, 2015, and public input is allowed at the December 14 meeting. Olson stated the preliminary tax levy to fund the 2016 budget is $4,954,480, which is an increase of $182,480 or 3.84 percent over last year s levy. A new levy item being added is a pavement management levy, which is designed to provide funding specifically for road maintenance and is the City s first step in providing long-term funding of city roads. The increase in the levy will not increase the overall tax rate, which will continue to be one of the lowest tax rates in the state. Page 1 of 39

2 PRELIMINARY BUDGET INFORMATION (continued) The General Fund operating levy is exactly the same as last year. The City of Orono s tax rate has remained fairly consistent. Since 2011, the average city in the state of Minnesota has increased their taxes by 8.74 percentage points or slightly over $500,000 over what the City of Orono has done. From 2010 to 2015, Orono s tax increase has been the lowest with the exception of Spring Park. Olson noted some of the cities during that time period, such as Medina and Wayzata, have experienced tax increases of over 20 percent. Olson stated based on the City s tax rate, if a residential property had no increase in value and their property tax rate stayed the same, they would experience no increase in their taxes. If someone owned a $250,000 house in 2014 and there was a three percent increase in the value, it would increase their property taxes by $14 over the course of the year. On a $2 million home that increased by three percent, this tax levy would result in an increase of $130. On the other hand, if a $250,000 home decreased in value by three percent, their property taxes would go down by $14 per year. Olson stated as it relates to the General Fund budget, it is important to note that the property tax levy is not increasing. The City s total revenues are projected to increase 1.7 percent and are expected to come from an increase in building permits. The line for total fines and forfeits is being decreased by 27 percent due to the loss of some federal money from the Metro Drug Task Force. Olson noted there is a big increase dollar-wise for public service charges for the cities that contract with Orono for police protection. The City s expenditures are increasing by 1.7 percent, which is not a very big increase. A couple of big items that are changing are elections, which are going up 66 percent due to 2016 being an election year. Dollar-wise it comes out to approximately $16,000. Olson noted the City will be experiencing a 12 percent increase in charges for assessing by the Hennepin County Assessor s Office. A large portion of the increase in the City s expenditures has to do with the police labor contract and employees wages increasing by $105,000 or 2.75 percent. Olson noted the total increase is less than the actual wage increase being given to the police officers. In addition, street maintenance is going down by $74,000, which is a result of moving approximately $40,000 from the General Fund into the Pavement Management Fund. Olson noted special projects and contingencies are showing an increase of 152 percent, which represents the amount of money that would be available for raises and benefit increases for the nonunion employees. At the present time none of the departments have a salary increase and that money has been added to the contingency line. In October, when the Council discusses the compensation plan, a decision will be made on how that money will be allocated. When discuss the compensation plan, can decide how that money will be allocated. Olson stated the City is required to certify its preliminary tax levy to Hennepin County by September 30. McMillan noted the City Council will be voting on the preliminary tax levy in two weeks, and after adoption of the preliminary levy, the levy cannot be increased. McMillan stated the levy can still be decreased prior to adoption of the final levy at the December 8 Council meeting but it cannot be increased. Page 2 of 39

3 PRELIMINARY BUDGET INFORMATION (continued) McMillan noted no public comments will be taken tonight on the preliminary budget but that the residents can or call City Hall with their questions or comments. Public comment on the budget and tax levy will also be allowed at the December meeting prior to adoption of the budget. The City Council took no formal action on this item. PUBLIC COMMENTS Tom Haugan, 3585 Lyric Avenue, stated two weeks ago he wrote a letter to the Orono Police Department entitled My Pledge of Support to Local Law Enforcement. Haugan indicated he has been watching the attacks and threats on police officers across the country, including what happened outside of the Minnesota State Fair. Haugan stated while no direct attacks have been made against Orono Police Officers, in his view these threats and attacks have had a negative impact on police officers in communities and cities across the nation. Haugan stated Orono City Officials have shown strong support for the Orono Police Department, which is great, but that tonight he would like the Orono Police Officers to hear from an ordinary citizen. Haugan stated he would like to read his letter. On August 29, 2015, Sheriff David Clark of Milwaukee County, Wisconsin, whom I greatly admire, made an appearance on the Fox News television program, Justice with Judge Jeannine. During this appearance, he called for every law-abiding American citizen to stand up and begin pushing back against the war on police officers. It is his call to action, in part, that I reach out to you today. Firstly, I want to thank you and your officers for their service to this community. Recently I attended the Orono Police Department open house and I was very happy to see the great new facility constructed for the force and meet and shake hands with all police officers that attended. Know this, your service to this community is greatly appreciated, and the respect and safety of you and your officers is of paramount concern to me. When I see news reports that unfairly and dishonestly characterize law enforcement, I am left frustrated and with a desire to somehow defend law enforcement or somehow set the record straight though I lack capability to really do either. In closing, Orono is a long way from Ferguson and Baltimore, both in distance and socioeconomic and political makeup. However, should such a threat ever exist in Orono, I want you and your officers to know that I offer my complete and unconditional support. I am an average man of modest means, but I will do what I can and stand proudly for our men and women in uniform. Signed Tom Haugan, United States Army, Airborne Infantry, Veteran and Patriotic American Citizen. McMillan thanked Mr. Haugan for his letter in support of the police department. Printup stated he appreciates Mr. Haugan s courage to read his letter publicly and that it encouraged him to propose a resolution of support for the police. McMillan stated it should be on the agenda in two weeks. Page 3 of 39

4 PUBLIC COMMENTS (continued) Fire Chief Van Eyll, Long Lake Fire Department, stated he would like to thank the City of Orono and the City Clerk for doing a wonderful job with getting the permits ready for the Centennial. Van Eyll stated he would like to invite everyone to the Centennial, which is scheduled for Saturday, September 19. The parade starts at noon, with the festivities ending at the fire station. McMillan noted the event starts at noon on Saturday and goes until the fireworks in the evening. Van Eyll stated the last band scheduled to play is Lost Highway and that the fireworks will occur shortly after dusk. PLANNING DEPARTMENT REPORT 5. # SHARRATT DESIGN COMPANY, LLC, ON BEHALF OF JAMES AND KATHLYN WYMAN, 1185 FERNDALE ROAD WEST, VARIANCES RESOLUTION NO James Wyman, Applicant, was present. City Planner Curtis stated the Wyman s plan to construct a two-story garage addition on the west side of the existing home at a conforming setback. The new driveway extension to access the new garage requires a setback variance from the wetland. The driveway is proposed to be constructed as close as 12 feet from the wetland where a 35-foot setback is required. At the August meeting, the Planning Commission held a public hearing and reviewed the application, including public comments. The Planning Commission voted 5 to 1 to recommend approval of the setback variance with the following conditions: 1. The applicant shall comply with all of the permitting requirements of the MCWD, specifically the wetland, erosion control, and floodplain alteration rules. 2. The applicant shall comply with the recommendations of the City Engineer prior to placement on the City Council agenda. 3. The applicant shall enter into an encroachment agreement with the City to address the existing and proposed improvements within the sewer easement. A draft agreement will be provided to you prior to the City Council meeting for review. Staff recommends approval of the wetland setback to construct the driveway. Staff further recommends the proposed grading plan be revised to provide stormwater volume mitigation on the northwest corner of the proposed driveway improvements. Curtis noted the applicant has provided a revised plan today which seems to address the comments of the City Engineer. Council Member Cornick asked if there was an after-the-fact charge. Curtis stated it is not an after-the-fact fee and that it is the standard fee. Page 4 of 39

5 PUBLIC HEARING Mayor McMillan opened the public hearing at 7:22 p.m. There were no public comments regarding this application. Mayor McMillan closed the public hearing at 7:22 p.m. 5. # SHARRATT DESIGN COMPANY, LLC, ON BEHALF OF JAMES AND KATHLYN WYMAN, 1185 FERNDALE ROAD WEST, VARIANCES RESOLUTION NO (continued) McMillan asked if the City has seen any stormwater mitigation. Curtis stated it is basically showing that they will provide an equal volume swale to provide mitigation and that they have submitted the calculations requested by the City Engineer. Council Member Levang asked if Mr. Wyman has reached an agreement with Mr. Jackley, his neighbor. James Wyman, Applicant, stated he spoke to Mr. Jackley on Thursday and that he indicated he received the information from Ms. Curtis. After reviewing the information, Mr. Jackley stated he was in support of the project and thanked him for addressing his concerns about drainage. Levang stated she wanted to get that on the record because there was a prior question in an earlier meeting that was raised. Council Member Walsh stated at the Planning Commission meeting there were water issues discussed and that last year there were a number of water problems throughout the City. Walsh stated it appears that there were no prior issues before last year. Walsh asked whether that has been resolved to both parties satisfaction. Wyman indicated that is correct. Levang moved, Walsh seconded, to adopt RESOLUTION NO. 6535, a Resolution Granting a Variance from Municipal Code Section , for the property located at 1185 Ferndale Road West. VOTE: Ayes 5, Nays # KUHL DESIGN BUILD ON BEHALF OF JOHN AND CYNDY BOWLSBY, 1025 SPRING HILL ROAD, VARIANCES, AMENDMENT RESOLUTION NO Curtis stated in June of this year, the Council approved lake setback variances in order to permit construction of additions on the lake side of the home within the 10-foot setback from Long Lake and lakeward of the average lakeshore setback. A variance to permit construction of a pool within the 75-foot setback and ahead of the average lakeshore setback was denied. The property owners are now requesting the approval be amended slightly. They are now proposing to eliminate the previously proposed larger additions on the west end of the home and construct a smaller addition in its place. Another 125 square foot addition is also proposed which fills in a jog in the lakeside of the home to accommodate a kitchen bump out. The pool has been relocated to be completely beyond all required setbacks. Page 5 of 39

6 6. # KUHL DESIGN BUILD ON BEHALF OF JOHN AND CYNDY BOWLSBY, 1025 SPRING HILL ROAD, VARIANCES, AMENDMENT RESOLUTION NO (continued) Curtis illustrated the proposed changes to the plan on the overhead. Staff recommends approval of the requested variances amending Resolution No A notice for this application was published in the local newspaper and the City Council should hold a public hearing and then make a decision on the requested variances. If the City Council would prefer the Planning Commission review the changes, the application could be tabled to their September 21 meeting. PUBLIC HEARING Mayor McMillan opened the public hearing at 7:28 p.m. There were no public comments regarding this application. Mayor McMillan closed the public hearing at 7:28 p.m. Walsh stated he is glad the applicants have relocated the pool behind the required setbacks and that he does not have any issues with the proposed changes. Levang moved, Printup seconded, to direct Staff to draft a resolution granting the lake setback variances and to amend Resolution No VOTE: Ayes 5, Nays # CHRISTOPHER AND GAIL BOLLIS, 200 AND 350 STUBBS BAY ROAD, PRELIMINARY PLAT RESOLUTION NO Senior Planner Gaffron noted at the August 10 meeting, the City Council reviewed this proposed subdivision involving two tax parcels to create a new private road and seven new 2-acre building lots. The Council also heard from the residents of Kintyre Lane who indicated the lack of knowledge about the possibility of their private road being extended has raised a variety of concerns which they needed more time to consider. The Council voted 5-0 to direct Staff to draft a resolution for preliminary plat approval and to bring it back before the Council in 30 days to allow the Kintyre Lane residents time to consider their options. Gaffron stated the road design has been reviewed with Staff and the City Engineer. The applicants have revised their plans and are now proposing to use surmountable curbs to control runoff. The road width from back-of-curb to back-of-curb will be 30 feet, meeting the City s requirement for a road serving more than ten homes. The applicant has indicated they will continue to refine the road design to incorporate a rural section where possible. The Council determined that the combined road length of just over 1,500 feet was a variance that could be granted, especially since the fire chief indicated the size of the homes would likely require installation of fire suppression sprinklers. In addition, the Council felt that a connecting road corridor to Stubbs Bay Road was not necessary. Staff has not heard from the Kintyre residents as to their desire for the future of the existing cul-de-sac but they are here tonight to discuss that. Page 6 of 39

7 7. # CHRISTOPHER AND GAIL BOLLIS, 200 AND 350 STUBBS BAY ROAD, PRELIMINARY PLAT RESOLUTION NO (continued) Any future plan to revise or eliminate it would require City approval. The City Engineer is reviewing the latest plans and will ensure an appropriate transition between the existing cul-de-sac and the new road extension. Also discussed at the last Council meeting was the septic setbacks, and the Council felt that the 50-foot setback from the wetlands would be acceptable and a variance to the wetland ordinance would be granted to allow some mound systems to encroach within portions of the 75-foot wetland buffers required by the MCWD. The developer has proposed a revised grading plan that includes future grading to establish individual pads to establish new existing grades for house placement on all seven lots. The proposed pad grading is intended to occur at the time individual building permits are issued. The applicant has been advised that final plat drawings must indicate the demarcation between the road and drainage improvements and the future building pad grading. The portion of the proposed grading plan that depicts future grading to create individual building pads will be considered as establishing "new existing grades for house placement on all seven lots. The proposed pad grading will occur at the time individual building permits are issued. The Council generally indicated they were acceptable of the proposed landscaping plan that omits the regular spacing of trees along the private road in favor of adding trees along the south border of the site as a buffer to the existing Kintyre development. The Council also indicated they found the lot width variances for Lots 4, 5, and 6 acceptable. The existing septic system was also an issue that was discussed at the last Council meeting. The Applicant had noted that the immediate disposition of the existing house on Lot 5 has not been determined. The septic mound serving that house will end up being partly within Lot 5 and party within Lot 4. The Council suggested that a limited-term temporary easement with specific triggers to require removal of the system should be considered. Staff recommends that an easement be prepared with the following conditions: 1. The easement shall expire and the system shall be removed, upon any one of the following occurrences: a. At such time that Lots 4 and 5 become separately owned; b. At such time that a permit for home construction is issued for Lot 4; c. At such time that a permit for home demolition or new home construction is issued for Lot 5; d. At such time that a permit for expansion of the existing home on Lot 5 is issued; e. At such time that the existing system is found to be non-compliance and ordered to be replaced; 2. Regardless whether any of the above has occurred, the easement shall expire and the system shall be removed no later than two years after the date of filing of the plat with Hennepin County. Page 7 of 39

8 7. # CHRISTOPHER AND GAIL BOLLIS, 200 AND 350 STUBBS BAY ROAD, PRELIMINARY PLAT RESOLUTION NO (continued) Mr. MacKinnon has granted the required access easement for Outlot D and it has been recorded with Hennepin County. It is Staff s understanding the applicant and the Kintyre HOA are close to finalizing a cost share agreement regarding maintenance of Kintyre Lane. Gaffron noted the neighbors attorney has written and submitted a letter to the City that will likely be discussed tonight. Orono s Community Management Plan has no current plans for parks that specifically require dedication of park land from this property. The CMP further indicates that a future trail is proposed along Stubbs Bay Road, connecting from a conceptual trail along the south side of the railroad corridor down to the shore of Stubbs Bay. It is unknown at this time whether that trail will ever be completed, but a 10-foot trail easement along the west boundary of Outlot A would normally be required. The applicant has stated in his view the easement is not necessary and Staff is in agreement with that. Staff has prepared a resolution for preliminary plat approval incorporating general and specific conditions of approval for Council consideration. Walsh stated in regards to the septic system on Lots 4 and 5, there are no penalties if that system is not removed as required and that in his view the resolution should contain language that provides some type of sanctions, such as not issuing any building permits until it has been taken care of. City Attorney Mattick stated Staff can draft something to include some type of sanction. Gaffron stated he likes the deal of restricting the building permits until it is taken care of. McMillan stated she was thinking of going in the other direction and removing the two-year limit since both properties are owned by the same party. Walsh stated he is not worried about removing the two-year limit but that he would like some type of penalty in there. Gaffron stated Staff can remove the two-year limit and include a sanction or penalty. Levang asked if road construction traffic will be off of Stubbs Bay Road rather than Kintyre. Gaffron stated the language in the resolution states that materials and equipment for the construction of the extension of Kintyre Lane shall be accessed through Outlot A of Kintyre Preserve to Stubbs Bay Road and shall not use the portion of existing Kintyre Lane for road construction access. McMillan noted that is just for the road construction and does not apply to construction of the homes. Levang stated she would like to know what the applicant feels about that. Mayor McMillan opened the public hearing at 7:42 p.m. Eric Miller, 195 Kintyre Lane, stated following the last Council meeting, they hired an attorney to look into the facts and timelines associated with both the development, the content of relevant and recorded documents, and what was disclosed and was not disclosed when they purchased their property. Page 8 of 39

9 7. # CHRISTOPHER AND GAIL BOLLIS, 200 AND 350 STUBBS BAY ROAD, PRELIMINARY PLAT RESOLUTION NO (continued) The goal was to understand the situation and whatever rights they have or what rights may have been violated during that process. Miller stated they all made very large investment decisions based on the information that was shared and they wanted to understand the situation. Miller stated he and his wife, as well as Kristine Knorp, were sold lots at the end of a small cul-de-sac, which is what they paid for, what they were sold, and what they want. The property owners at 125 Kintyre, even though they are not parties to the letter, also object to the road extension as well. After reviewing the situation, Miller stated in their view they have some legal basis for their request, which has been outlined in the letter that was submitted to the City. Miller stated since the road itself is owned by the property owners and not the homeowners association, any easement to provide access to the road would require their approval and at this point they are not inclined to provide it. Miller stated the unfortunate thing is that this has an impact on the Bollis but that they need to defend their rights. Miller stated they would ask the City develop a solution to provide access to the property that does not require an extension of their road. Walsh asked if they have consulted with an engineer regarding the safety of the road. Kristin Knorp, 180 Kintyre Lane, indicated they are still working on that component. Mattick stated as he understands it, the attorney s objection is that members of Kintyre own an interest in Outlot C, which terminates in the cul-de-sac. Mattick stated he does not dispute that since the documents say that, but noted the documents also say that there is a public easement that has been recorded over the outlot. Mattick stated the residents attorney acknowledges in his letter that there is a public easement over that area for road purposes. Mattick stated as a result of the recorded public easement, no further permission is needed to construct the road since permission was granted before they purchased their properties. Mattick stated the mistake is to the north of the cul-de-sac where another separate outlot was created and for which no easement was recorded. Mattick stated Mr. MacKinnon and his original investment group continues to own that outlot and was not part of the sale. The City has been provided with a public easement over that outlot for roadway purposes. Mattick stated the documents are of record and they state that there is a public easement for road construction without the need for any future permission. Miller stated he would request the City Attorney talk with his attorney on that issue and that his viewpoint is different than that. Mattick indicated he can provide his business card to Mr. Miller. Mattick stated he cannot speak to the representations that were made to the residents at the time of purchase. Mayor McMillan closed the public hearing at 7:49 p.m. Christopher Bollis, Applicant, stated they felt it would be better to have the construction traffic coming off of the existing driveway at 200 Stubbs Bay rather than having heavy equipment going down the road and they are okay with that. Page 9 of 39

10 7. # CHRISTOPHER AND GAIL BOLLIS, 200 AND 350 STUBBS BAY ROAD, PRELIMINARY PLAT RESOLUTION NO (continued) McMillan asked whether Mr. Bollis has any comments about the septic triggers. Bollis stated they are fine with the triggers and like the suggestion to remove the two-year limit. Bollis stated if Lot 5 is owned by the same person as Lot 4 and they decided to construct a house in the location of the house on Lot 5 and not build a house on Lot 4, the current language would require that septic to disappear when it may never have to disappear. McMillan asked how old the system is. Bollis stated it is his belief the system was updated five years ago. Bollis stated he is fine with the other language to eliminate it. McMillan asked where the language regarding the trail is in the resolution. Gaffron indicated the language regarding the trail is Item No. 16 on Page 4 of 11. The language talks about no land for a public park is required and the Community Management Plan indicates the desire for a future trail along Stubbs Bay Road, connecting from a conceptual trail along the south side of the Burlington Northern railroad corridor down to the shore of Stubbs Bay. Whether this trail will ever be completed is unknown but, however, for potential future trail needs a 10-foot trail easement along the west boundary of Outlot A will be required. Gaffron stated he would strike the last two sentences of that paragraph after public roads. Levang indicated she is fine with that. McMillan asked whether the Council had any other thoughts on the septic issue. Walsh stated he does not have a problem with removing the two-year time frame or the language referencing ownership of both lots by one party. Walsh stated he would still like some type of sanction in the event it does not get done. Gaffron indicated Staff will draft some language that will address that. Walsh stated not issuing a permit is probably the most painful. Walsh stated he would like to make the point that the City is not the litigator if there are issues between property owners. Walsh stated this weekend he attended his daughter s gymnastics party and that he lives at the end of a cul-de-sac. Walsh stated if he had the understanding that that was what he bought, he would not be very happy if it was proposed that the cul-de-sac now become a through road. Walsh stated it puts the Council in an unenviable position of trying to resolve the issue, but it also underscores a future issue for the Council to discuss, which is how important is it to have public roads versus private roads. Walsh stated if they were public roads, it would be documented very well and the City probably would not have these issues. McMillan asked whether the Council should see this application back in two weeks. Page 10 of 39

11 7. # CHRISTOPHER AND GAIL BOLLIS, 200 AND 350 STUBBS BAY ROAD, PRELIMINARY PLAT RESOLUTION NO (continued) Gaffron indicated Staff can revise the resolution based on Council direction tonight and that it would be up to the Council on whether they would like to see the resolution again. Mattick stated if there is a motion to approve the resolution tonight, it should include direction to Staff to strike the language that was previously discussed and adding an enforcement mechanism regarding the septic site. Mattick noted this is a preliminary plat approval and that the Council will see it again at the time of final plat. It was the consensus of the City Council to proceed forward with the resolution. Bollis asked if they will be striking the language under 2D on Page 10. Gaffron noted that relates to an agreement with regard to road maintenance. Mattick stated there is no direction from the Council to strike that at this point and that it is his understanding the applicant is close to reaching an agreement. Christopher Huntley, Attorney-at-Law, stated he represents the applicant. Huntley stated he concurs with everything the City Attorney has said regarding the easement and that no additional rights need to be granted. Huntley stated the one thing that was raised in the letter that might be an issue is the authority of Mr. MacKinnon to grant any rights in this cost-sharing arrangement. Huntley indicated they have been negotiating for three or four months and are close to an agreement, but that it is all contingent on Mr. MacKinnon or his company having the authority to enter into an agreement. The letter implies that they need the permission of all the property owners to the south. Huntley stated that would essentially mean the homeowners to the south would be able to prevent any future development because they could just simply not agree to the cost-sharing agreement, which would basically end the discussion. Huntley stated by essentially creating a precondition to the approval of the plat, it creates a situation where the subdivision will not be approved. The Bollis are fine with a cost-sharing arrangement to resolve the issue, and if it is not a precondition, the property owners are much more likely to negotiate. Mattick stated he concurs with many of the concerns Mr. Huntley has raised. At this point it has been represented to the City that Mr. MacKinnon can enter into that agreement. Mattick stated he understands there is something to the contrary that says he does not have the authority and that he cannot tell the Council the status of the agreement. Mattick noted this is preliminary plat and that the City will have time to review the agreement and get the input of the residents prior to final plat. If the residents do not want a cost-sharing agreement, that can be struck from the final plat documents. Mattick stated at this point he understands from Mr. Bollis and Mr. MacKinnon that he does have the authority to sign the agreement. If it turns out Mr. MacKinnon does not have the authority, the Council would then be faced with the decision of not requiring a maintenance agreement. Page 11 of 39

12 7. # CHRISTOPHER AND GAIL BOLLIS, 200 AND 350 STUBBS BAY ROAD, PRELIMINARY PLAT RESOLUTION NO (continued) Mattick stated in his view it benefits everyone to spell out the cost sharing arrangement and maintenance responsibilities and that he would recommend it stay in the preliminary plat resolution. Levang asked if the City Attorney is basing that on the fact that there is a public easement for a road. Mattick stated that is correct and that it was always felt that this road would be privately maintained. Council Member Printup moved, Levang seconded, to adopt RESOLUTION NO. 6536, a Resolution Granting Preliminary Plat Approval for a Class III Subdivision of Property Located at Stubbs Bay Road North, with the last two sentences being stricken from Item 16 on Page 4, with the understanding that materials and equipment relating to the road construction will come off of the existing Stubbs Bay driveway, removing the two-year limit on the septic system located on Lots 4 and 5, and including language stating that no permits will be issued until the septic system is removed on those lots. VOTE: Ayes 5, Nays # JON RESSLER, 3683 NORTH SHORE DRIVE, VARIANCES RESOLUTION NO Curtis stated the applicant is proposing to construct an attached garage addition and make modifications to the existing one-level home resulting a 2-1/2 story home. The additions will require side, lake and average setback variances as well as hardcover and structural coverage variances. The existing home is located as close as 35 feet to the ordinary high water level of Lake Minnetonka and five feet ahead of the average lakeshore setback. With 1,781 square feet of structure on the property, it currently exceeds the structural coverage limit by 281 square feet. The existing hardcover level is 54 percent and the proposal will result in a slight increase of 188 square feet or 56 percent hardcover. Overall the applicant s proposal will reduce structural coverage by nine square feet. The Planning Commission, at its August meeting, voted 5 to 1 in favor of a motion to approve the variances as requested with the following conditions: 1. The applicant shall comply with the permitting requirements of the MCWD. 2. The top floor of the proposed home shall comply with the City s definition of half story. No height of number of stories variances are being granted. 3. The applicant shall comply with the recommendations of the City Engineer and Building Official during the permit review and construction process. 4. Revised hardcover calculations shall be submitted to properly report the hardcover existing within the 75-foot setback. The applicant has provided those revised calculations. Planning Staff recommends approval of the application and a draft approval resolution has been provided for the Council s consideration. The City Council should hold the public hearing and then consider adopting or denying the resolution. Page 12 of 39

13 PUBLIC HEARING Mayor McMillan opened the public hearing at 8:06 p.m. There were no public comments regarding this application. Mayor McMillan closed the public hearing at 8:06 p.m. 8. # JON RESSLER, 3683 NORTH SHORE DRIVE, VARIANCES RESOLUTION NO (continued) Walsh noted the Planning Commission had raised the amount of massing on the property and asked whether any of the neighbors have commented on the application. Curtis noted the neighbors on both sides of the subject property did submit written comments that were included in the Planning packet. McMillan asked if they will be using the existing foundation and framing. Jon Ressler, Applicant, stated due to their research, it was determined that the existing foundation and structure is sufficient to hold the weight of the second story. The foundation was largely rebuilt in 1999 and at that time there were no real changes necessary for reconstruction. Ressler stated in their view the foundation is sufficient but this is the first step in finding that out. McMillan noted the City at times in the past have required a report from a professional engineer and asked whether that would be required in this situation. Curtis stated the building official will want documentation that the foundation is suitable for the structural load that it will be carrying, but essentially the applicant can rebuild this home in kind without evidence of that information. If the applicants were to take out the entire structure and rebuild the foundation, they would be able to do that. McMillan asked if they would be limited to one story. Curtis indicated they would be able to rebuild the house as it currently is but they would be required to apply for a variance if a second story is added. Levang stated she is concerned given the number of variances being requested. Levang stated the side setbacks are very narrow and that she is concerned about safety in relation to a fire. Levang stated the ability to be able to back out of the driveway is important but that 56 percent hardcover is a huge amount. Levang stated the applicants are constructing a big house on a small lot and that she is concerned about the massing. Ressler pointed out there are two other homes on the road that have done similar projects as what he is proposing with similar setbacks and similar variances. Ressler noted the house depicted on the left was remodeled a few years ago and is even closer to the property line. This project will be improving the side setback from what it currently is. Page 13 of 39

14 8. # JON RESSLER, 3683 NORTH SHORE DRIVE, VARIANCES RESOLUTION NO (continued) In addition, the overall footprint of the structure will be decreased and that in their view the impact will be improved since the garage will be attached and they are not requesting a height variance. Walsh stated this is a difficult lot but that two other homes on the road have done similar projects. Walsh stated he is glad the applicant has reduced the footprint somewhat and that in his view the applicant has done the best he can with a very small lot. Levang stated she is not sure whether these small lots were intended to have such big homes on them and that the two neighbors homes will be dwarfed. Levang stated she is not sure how that will impact the neighbors light and view. Ressler noted they have received letters of support from the neighbors. McMillan stated if they were constructing a new home from scratch, they would not be allowed the structural coverage and average lakeshore setback variances. McMillan stated in her view a house could fit in there without two of the variances. McMillan noted if the applicant constructs the 1-1/2 story, they would actually be gaining more square footage than if they construct a new house. McMillan stated she is using the tear-down/build over as the comparison piece to see what this lot can sustain. McMillan stated the two variances she is struggling with are the average lakeshore setback and the hardcover and how to mitigate that. McMillan stated everybody else in Orono who has the space is not allowed to construct 35 feet from the lake and must be beyond the 75-foot setback. McMillan stated there has to be a balance between that and what is being requested and how much massing should be allowed. McMillan stated in the past the City has required people to conform to the average lakeshore setback and push the second story out of that area. McMillan stated she is looking for compromises and that in her view pulling it out of the average lakeshore setback would be a possibility even though it might make for a more difficult design. McMillan stated she is struggling with the idea of maxing out the square footage of this lot and that it would not be allowed if the house was torn down and rebuilt. Ressler stated it would be impossible to rebuild on that lot without variances. McMillan stated it is a matter of how many variances should be granted. Walsh noted this is not new construction and that the applicant will be adding a minor second story, which will make it a better house. Walsh stated they are not asking to build a boathouse. Levang asked what will be in the average setback. Ressler indicated it will be a covered porch. Levang asked what would happen if that went away or whether it could be pulled back. Ressler stated he is not sure that will benefit the neighbors since their homes are basically facing the other direction. Ressler stated the neighbor has a deck that is within the average lakeshore setback. Page 14 of 39

15 8. # JON RESSLER, 3683 NORTH SHORE DRIVE, VARIANCES RESOLUTION NO (continued) Levang stated the City Council has the responsibility to have the lot as conforming as possible, and if that would eliminate one variance by pulling it out of the average lakeshore setback, it would help her be able to approve the application. Curtis stated removal of the covered porch or the deck above the existing home footprint would probably help reduce some of the massing. Levang stated an open deck rather than a structure with a roof would help reduce the massing. Walsh asked what that would accomplish. McMillan stated a lot of times the roofline will cast shadows or block the neighbors view or give the appearance of more massing. McMillan noted the City has required rooflines to be removed out of the average lakeshore setback in the past. Walsh stated he is simply building on top of existing hardcover. McMillan stated this would be structure within the average lakeshore setback. Printup indicated he is okay with the proposal and that the natural thing to do on a small lot is to go up. Printup stated he can also see the value of not creating massing on a small lot but that the current structure is already in the 75-foot zone. Curtis noted the deck would be smaller than what is currently there. Walsh stated the applicant is not doing anything different other than going up. McMillan stated they are intensifying the structure in the 0-75 foot zone. Walsh stated he is in agreement with that. Levang asked if the brick patio will remain. Ressler stated they have not really discussed the patio, but if the Council feels it would be helpful to reduce it, they would consider it. Ressler indicated they will be removing a concrete pad that has been there since the 1960s. Walsh moved, Printup seconded, to adopt RESOLUTION NO. 6537, a Resolution Granting Variances from Orono Municipal Code Sections , , , and , for the property located at 3683 North Shore Drive. McMillan noted she will not be voting in favor of the resolution since it will increase the massing on a small lot, which will create a tunnel effect and shade the neighboring properties. Cornick asked if the changes proposed by the Mayor would be acceptable. Page 15 of 39

16 8. # JON RESSLER, 3683 NORTH SHORE DRIVE, VARIANCES RESOLUTION NO (continued) Ressler stated it is difficult to answer that on the fly and that he is the third generation to own the property. Ressler stated he grew up in this house but that it needs to be changed to accommodate their needs. Ressler stated it is his position the second story will not really have any impact on the neighbors. VOTE: Ayes 3, Nays 2, Levang and McMillan Opposed. 9. # MICHAEL AND LISA LARSON, AMEND B-1 USES TO ALLOW DOG KENNELS/DOG DAY CARE Michael and Lisa Larson, Applicants, were present. Barnhart stated the applicants are proposing an ordinance amendment that defines dog boarding, daycare, and grooming and allows those uses as a conditional use permit in the B-1 zoning district. Kennels, though not defined by the ordinance, are a conditional use permit in the B-5 zoning district. All kennels require an annual license approved by the City Council. Barnhart stated Staff did look at surrounding cities and found that Minnetonka allows kennels as an interim use in some of their residential zones but has lot size, screening, and licensing requirements. Plymouth also allows indoor kennels in some of their commercial districts as a permitted use and as a conditional use in their industrial district. Kennels are a conditional use in Wayzata s commercial zoning district. In anticipation of the ordinance being approved, the applicants have submitted an application for a business which would meet those definitions for a building on Shoreline Drive in Navarre. That application will be reviewed by the Planning Commission at their September meeting. In addition, at their August meeting, the Planning Commission reviewed two ordinances, one prepared by the applicant and another more general one prepared by Staff. The Planning Commission favored the more specific one, noting concerns of unintended impacts to neighboring properties. The Planning Commission recommended approval of the ordinance prepared by the applicants. Planning Staff also recommends approval. PUBLIC HEARING Mayor McMillan opened the public hearing at 8:28 p.m. Rick Meyers, 2195 Bayview Place, stated he read in the paper that it would be up to 80 dogs. Meyers asked if that is correct. Page 16 of 39

17 PUBLIC HEARING (continued) Barnhart stated he is probably referring to the public hearing notice on the specific application that has been submitted and that the number of dogs would be based on the amount of parking and size of the building. Meyers stated the property is in a commercial district but it abuts a residential neighborhood. Meyers asked if the 80 is a general number for approval or whether that is what is being requested. Barnhart noted the application tonight is a text amendment and that there is an application in process that will be reviewed by the Planning Commission that indicated there could potentially be up to 80 dogs in this location. The applicants would also anticipate some outdoor activity. Barnhart stated the 80 number is independent of this request. Meyers stated the outdoor portion is in the back of the building which would face the neighborhood. Meyers indicated there is a dog that lives there that barks every time another dog walks by and that he can imagine the amount of barking that will occur if there are dogs outside the building on Shoreline. Meyers stated he has been to dog kennels before and that it can be done, but in his view it would be good to look at the Odogo facility, which is located in a commercial district. Meyers stated in his view 80 dogs in this particular building would be a lot. McMillan asked if it in a warehouse district. Meyers indicated they have a facility off of Baker Road and are constructing another one near Ridgedale but neither one is close to a residential area. Walsh stated children s daycare is very specific and that in his view the City can get a little more specific on the definition of dog boarding and dog daycare. Walsh stated Staff may need to refine the definitions further. Barnhart stated he does not disagree with those comments but that he is not sure if those specifics should be included within the definitions. Walsh stated if it was known what amount of land would be required outside of the building, they could lay out the requirements better. Meyers stated if the outdoor area is on the east side, it would be more toward the residential area, and on the west side it would be toward the commercial area. Meyers stated the City should look at this application carefully and perhaps see whether there have been complaints with similar businesses in other cities. Mayor McMillan closed the public hearing at 8:33 p.m. Page 17 of 39

18 9. # MICHAEL AND LISA LARSON, AMEND B-1 USES TO ALLOW DOG KENNELS/DOG DAY CARE (continued) Michael Larson, Applicant, stated the intent is to primarily run the business indoors and that they are planning to have 35 suites indoors. Larson stated the 80 number comes from adding the maximum number of overnight guests along with the potential of 35 daycare dogs. Larson indicated they plan to dedicate 1,000 square feet of indoor play space and that the dogs will primarily be indoors. Larson stated the outdoor play space would be located in the northwest corner of the building so it will be as far from the residential properties as possible. The dogs outdoor relief area will also be along the west side of the building. Larson stated they anticipate 10 to 15 dogs outside at any given time and that the outdoor play area would only be used for a few months during the summer weather permitting. McMillan asked if the outdoor area would be grass. Larson stated they would be installing a synthetic turf called Canine Grass, which is an artificial turf that is similar to what is seen on a professional sports field, and would have crushed limestone beneath. Larson stated the product is very sanitary. McMillan stated she thought that would be parking lot and that she is not sure how there is enough space for an outdoor play area. Larson stated the proposed parking will be located in the back of the building and the entrance to the building would be relocated to the Blaine Avenue side. McMillan asked if he anticipates there being a lot of barking. Larson stated the building is cinderblock and will be insulated. In addition, the latest in sound mitigation technology will be utilized as well. Larson stated he was in conversation with a veterinarian located two doors down and their building does not have air-conditioning. The veterinarian indicated they have dogs barking all the time and they have never received any complaints. Larson stated they will attempt to keep the dogs indoors as much as possible. Barnhart noted the definition proposed tonight is for an indoor kennel and that an outdoor kennel would not be allowed. Cornick asked if cats and other animals would not be allowed. Barnhart stated the ordinance is basically written for dogs in mind with the exception of pet grooming. Walsh asked if other cities have been contacted to see whether they have experienced any problems with this type of business. Walsh stated since this is a new concept in Orono, he is worried about unintended consequences. Barnhart stated the use is new in Orono, which is why Staff felt more comfortable proceeding with a conditional use permit. Barnhart stated he expects this business use will have some negative impacts as most businesses do, such as noise, and the conditional use process would allow the City to address those types of issues. Page 18 of 39