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, 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. 5, 6, 14, 15, 16, 17, 18, 19, and 20 were added to the Consent Agenda. Levang moved, Printup seconded, to approve the Consent Agenda as amended. VOTE: Ayes 5, Nays 0. APPROVAL OF MINUTES *2. REGULAR CITY COUNCIL MEETING OF JULY 27, 2015 Levang moved, Printup seconded, to approve the minutes of the Orono City Council meeting of July 27, 2015, as submitted. VOTE: Ayes 5, Nays 0. *3. CITY COUNCIL WORK SESSION MEETING OF JULY 27, 2015 Levang moved, Printup seconded, to approve the minutes of the Orono City Council meeting of July 27, 2015, as submitted. VOTE: Ayes 5, Nays 0. PLANNING COMMISSION COMMENTS JOHN THIESSE, REPRESENTATIVE Thiesse stated he had nothing to report but would be available for questions. PUBLIC COMMENTS Kendall Nygard, 1386 Rest Point Road, stated due to a conflict of interest, which is not financial, Mr. Walsh should recuse himself from Item No. 4 and that she does not want him participating in these hearings related to herself, her family, or her husband s businesses and their opportunities. According to the League of MN Cities in its official conflict of interest information memo, it points out the following: Section B, non-contractual situations on Page 16, the end of the second paragraph states: Conflicts can also arise when an official s own personal interest is so distinct from the public s interest that the member cannot fairly represent the public s interest. In addition, under Bullet No. 2, Item F., Land Use Bias, Page 20, personal bias can also be a concern. In one case, a biased Council Member voting on a land use matter made the Council s decision arbitrary. As a result, the Court determined the property buyer s due process rights were violated and returned the matter for a new hearing, one where the biased Council Member would not participate. Page 1 of 32
PUBLIC COMMENTS (continued) Nygard stated unfortunately Mr. Walsh qualifies for the previously mentioned conflict of interest due to his own behavior. Nygard stated over the past several years, Mr. Walsh has come to her property to take unwanted photographs and films of them, their property and their guests. Nygard stated Mr. Walsh has threatened her family, her job, their mortgage, and her kids at their school. Nygard stated Mr. Walsh has harassed herself, her family and guests on their property. He has attempted to wreck her husband s vintage automobile. Nygard stated most importantly, Mr. Walsh has been served two separate restraining orders for harassing her family and that the above are among other things too numerous to list. Nygard stated the only way this Council can provide them with a fair hearing is to recuse Mr. Walsh from this hearing and potential litigation, which is in the public interest. Nygard stated in her view there is no other way to get a fair hearing with Mr. Walsh present. Nygard stated she also believes that any of the Council standing where she is standing right now would feel the same way about fair treatment if a sitting City Council Member had treated them the same way over an extended period. Council Member Walsh stated there are some misinformed allegations within Ms. Nygard s statements. Walsh stated he agrees that the Nygards served him with some harassment lawsuits, which have been denied immediately. Nygard stated they have been appealed today and that she has all the exhibits to prove the photographing of her family and things that would show Mr. Walsh s intent. Nygard submitted the information to City Council. Walsh stated none of Mrs. Nygard s allegations make any sense and that her husband is being prosecuted on other stuff that he has done. Walsh stated he will not wade into that, but in the interests of fairness, he will abstain from this vote just because it is the best thing to do given all the issues in the neighborhood and all the lawsuits that Mr. Nygard has brought against numerous neighbors in the neighborhood for lots of things. Council Member Cornick asked if any of these allegations occurred while Mr. Walsh has been a Council member. Nygard indicated they have and that he has been photographing their property upon the removal of the wind turbine. Mattick stated because Mr. Walsh has recused himself, any action that occurs will take three out of four council members rather than three out of five. PLANNING DEPARTMENT REPORT 4. REQUEST FOR ADMINISTRATIVE APPEAL: NYGARD FENCE VIEWING Community Development Director Barnhart stated the City received a request for appeal from Jay Nygard requesting an appeal of the fence viewer s decision that the fence adjacent to his property is not a partition fence. The fencing viewing occurred on July 6. Mr. Nygard had requested fence viewers to determine if the fence is a partition fence, a statutory designation affording the adjoining property owners certain rights. Page 2 of 32
4. REQUEST FOR ADMINISTRATIVE APPEAL: NYGARD FENCE VIEWING (continued) The fence viewers made their determination based on a viewing of the fence and discussions with Jay Nygard and Peter Lanpher. The fence viewers determined that the fence was not originally ordered to be constructed by the fence viewers, the fence in question is not one of the types of fences described in Minnesota Statutes, and Mr. Nygard did not share in any of the costs associated with the construction of the fence. It was never contemplated by either parties that the fence would be a partition fence. In addition, the fence is located completely on Mr. Lanphor s property. Barnhart stated based on those criteria, the fence viewers did not feel the fence was a partition fence and subject to the requirements of MN States 344. Mr. Nygard disagrees with that decision and has requested the City Council review the matter. Jay Nygard, 1386 Rest Point Road, stated he disagrees with the fact that he never said it was not a partition fence from day one. The fence divides the property, which is the definition of a partition fence. In the City s letter of denial, the City claimed the fence is totally located on the neighbor s property, there is no agreement between the parties, and that he did not originally share the cost, which are all true. The letter also says that the fence was not originally ordered constructed by fence viewers. Nygard stated in his view a fence viewer cannot order somebody to construct a fence just like the City cannot order somebody to build something. Nygard stated this situation is quite disturbing to him since there is no legal basis for anything the City says and that they are making it up. Nygard stated he is not sure how the City can actually get to the point to say that these are the actual determiners of what a partition fence is and that the City has nothing behind what they say. Nygard stated there is no statute, no ruling, and nothing from the League of Cities. Nygard indicated he was able to find something from the MN House of Representatives in the MN Fence Law information brief written by the research department, who would be the people that are there to determine the intent of our legislators and laws. In regard to fence viewing, Paragraph 3 on Page 4 states: fence viewers do not determine exactly where, on or near a property line, a partition fence should be located. Nygard noted the language says on or near and that it does not say on a property line. Mr. Nygard stated that clearly shows that the MN House of Representatives intended partition fences to be located not solely on a property line but on or near a property line and that therefore the City s ruling is erroneous according to State Statute and the House of Representative Research Department. Nygard stated he would also like to note that although they have talked about how things do or do not apply, or that maybe the ordinance is clumsy or the statute is clumsy, that is all irrelevant because it says in the same brief that the statute generally applies to all property owners throughout the state, which would include he and his neighbor. Nygard stated furthermore, it seems that the City Council Members who attended the viewing did not really know what they were there for and that it is alleged the fence is illegal. Nygard noted the fence has been measured by the City Council people, there is an e-mail from Melanie Curtis in 2012 that says the fence is noncompliant, has been noncompliant from day one, and was denied a variance when they attempted to get a variance, but yet the fence is still standing. Nygard questioned how that could not be illegal when City Staff has said it was noncompliant, the fence viewers measured it, and that it is an illegal fence. Page 3 of 32
4. REQUEST FOR ADMINISTRATIVE APPEAL: NYGARD FENCE VIEWING (continued) The City also said how one tree has impacted the integrity of the fence and that the fence does not appear to be perfectly vertical, which it is not. Nygard stated the City also said the fence is not in danger of falling over. Nygard stated, however, that all it took was the last windy storm and the fence is falling over. Nygard stated it is gone from being somewhat vertical to being less vertical and that he does not know why the City wrote that. Nygard stated the fence is not safe and is falling apart. Nygard noted he submitted these documents to Council Members Levang and Cornick, which includes the information he has already relayed tonight. In addition, City Staff has known that the fence has been under investigation since September 17, 2012. Nygard asked how long it takes the City to investigate a fence. Nygard indicated he even has an e-mail from City Attorney Mattick in response to his request for a fence viewing where the City Attorney counseled City Staff not to give him his statutory obligatory fence viewing. Nygard stated it is a little disappointing to him that with everything he has had to go through with this City to try to practice his legal right to harvest the wind, that with something so obvious, the City admits is obvious, knows it is wrong, but they are still dancing around in circles to leave it there. Nygard stated another issue that really frustrates him the most is that the council members went over and talked to Mr. Lanpher during the fence viewing. Even though the documents state the fence is illegal, has been from day one, and Mr. Lanpher was denied a variance previously, the council members encouraged Mr. Lanpher to apply for a variance again even though he had already been denied a variance. Nygard questioned how many times they have to fight the same battle. Nygard stated all the city council people are doing is having City Staff waste time and money and that they are encouraging lawsuits by not following the law and the ordinances. Nygard stated he would like to request one more fence viewing since the fence has fallen further over and that maybe this time the City can follow state statute, which says on or near a property line is a partition fence. City Attorney Mattick asked if Mr. Nygard has admitted he has never contributed any costs to the fence. Nygard indicated that is correct. Mattick asked if the fence as it is standing was ordered by the City to be built by fence viewers originally. Nygard noted the City did not even know what fence viewers were. Mattick asked whether to Mr. Nygard s knowledge the fence was ordered to be built by the fence viewers. Nygard indicated he is not aware of what the City did. Mattick asked if there is any current maintenance agreement with Mr. Lanpher regarding the fence. Nygard stated the fence has never been maintained except by him. Nygard stated the fence was full of mold on both sides until they covered their side up and that the fence is falling over. Page 4 of 32
4. REQUEST FOR ADMINISTRATIVE APPEAL: NYGARD FENCE VIEWING (continued) Mattick asked if that is the maintenance that he was not supposed to perform. Nygard stated it is a partition fence and that he has every right to paint his side of a partition fence. Mattick asked where it was established that it is a partition fence. Nygard stated fence viewers do not determine exactly where on or near a property the property line a partition fence should be located. Nygard stated the fence is located near the property line and it divides the properties. Nygard stated the fence is so close to the property line that there is no possible way that the neighbors can maintain his side of the fence without trespassing on his property. Nygard stated the fence goes downhill and is only a few inches off the property line. Nygard stated unless someone is super skinny, there is no way they can maintain it. Mattick asked him if he is saying it is a partition fence because of its position. Nygard indicated it is because of its location, the land around it, and where it was installed. Nygard noted at the time the fence was installed, the City had a fence handout which suggested that people install fences two feet back from the property line so they can maintain it. Nygard indicated he told that to the people constructing it and that they said they want it right here. Nygard stated they located the fence where they could not get to it given the way the land is and that no one has ever maintained it except him. Nygard stated they are the only ones taking care of that part of the land and that they did not install it but that is where it was chosen to be placed by the neighbor. Mattick noted he asked if the City of Orono has ever ordered the fence to be put in and asked if it is Mr. Nygard s assertion that the fence viewers required the fence to be put there. Nygard indicated he is not aware of what the City did. Mattick asked if the fence viewers ever ordered the fence to be put there. Nygard indicated he does not know. Council Member Printup stated it seems like the City Council has talked about this property line a lot over the past number of years. Nygard stated it has been ever since his neighbors started complaining about him about going green. Printup asked if the fence would be an issue if the neighbors could get along. Nygard stated there was never an issue before these neighbors. Nygard indicated another person installed the fence, then other people moved in, and then the latest neighbors moved in. Nygard stated there was never an issue before then. Nygard stated he has some documents to submit that backs up what he has stated tonight. Nygard asked if the City Council is going to be voting on this tonight. Page 5 of 32
4. REQUEST FOR ADMINISTRATIVE APPEAL: NYGARD FENCE VIEWING (continued) Barnhart stated Staff would prefer the City Council provide direction on this matter and that Staff can come back with an approval or denial resolution. Mattick noted the decision would be made tonight, with direction to Staff to prepare a resolution. Cornick asked if the City has any other reasonable option than to do what they are doing right now. Barnhart stated he does not know the answer to that question. Cornick stated it appears the City is at the end of the rope and that there is not much the City can do. Mattick stated the record supports, and Mr. Nygard does not dispute, that this fence was never ordered to be a partition fence and that there is no evidence it was ever a partition fence, which would mean it was never subject to those rules or regulations. Mattick stated there is also no evidence that the Nygards ever contributed to the maintenance of the fence and that the fence is located entirely on the neighbor s property. Mattick stated while that is not the sole determinate of this, the neighbor has indicated he has no desire to share the costs with Mr. Nygard and that he considers it his fence. Mattick stated as it relates to Mr. Nygard s complaints that it is not code compliant, that is a zoning issue, and whether the fence complies with City laws has nothing to do with the partition fence laws and is a separate issue. Nygard stated the City Attorney has just made all that up. Nygard indicated he has not seen any statutes, any case law, or anything behind what the City Attorney has just said other than just words. Nygard indicated he has submitted the MN House of Representative s research department s interpretation of the statute and that Mr. Mattick is simply talking. McMillan asked when that information was submitted. Nygard indicated just a few minutes ago. McMillan noted the City Council has not had a chance to review that. Nygard indicated he understands that. McMillan stated her understanding is the statute applies to barbwire. McMillan stated she does not know when that statute was written. Nygard stated it does not matter when it was written and that the statute applies to all properties. McMillan noted the statute describes four different types of fencing and that they all related to barbwire. McMillan questioned whether the statute is more for agricultural and rural areas and the keeping of animals. Page 6 of 32
4. REQUEST FOR ADMINISTRATIVE APPEAL: NYGARD FENCE VIEWING (continued) Nygard stated it says in the research department handout that it generally applies to all properties and that there is nowhere in the statutes where it says that they are going to exclude residential properties in populated areas. Nygard stated there are no types of fences that are excluded by that statute. McMillan stated it was very specific on four different types of barbwire fences. Nygard stated it did not exclude any other type of fence. McMillan stated she is simply reading the statute. Nygard asked her to show him where it says it excludes certain types of fencing. McMillan stated it does not but that sometimes state statutes are specific. Nygard commented sometimes facts are hard to get around but they are still facts. Printup asked whether this matter would be brought back in two weeks. Mattick stated Mr. Nygard has requested that a decision be made tonight and that he has sent a letter to the City saying that he intends to start submitting invoices for his time. Mattick stated if there is additional information the Council needs, the Council has the authority to request that information. Mattick stated if the Council would like to proceed forward, Staff can summarize the discussion and the findings that have been made and bring that back in a resolution. Nygard stated because he has submitted documents tonight, if the Council would like to study those, he has no problem with that. Mattick stated it is up to the City Council. Nygard indicated he is flexible in coming back here since he just submitted those documents tonight. Council Member Levang asked where in the information the handout is that Mr. Nygard referred to. Nygard indicated it is Page 4. Printup requested the information also be e-mailed to the Council. Levang stated she would like time to read the information and think about it. Levang noted she has read Chapter 344 but that she has not seen this particular document. Nygard stated since he brought last minute information, he would be willing to come back another night. McMillan asked Mr. Nygard if he would like a specific date set for reconvening. Nygard asked if Mr. Barnhart can work with him on that. Page 7 of 32
4. REQUEST FOR ADMINISTRATIVE APPEAL: NYGARD FENCE VIEWING (continued) McMillan indicated that is fine. Printup asked if he would be willing to waive his fees. Nygard indicated he would. Printup moved, Levang seconded, to table the request for administrative appeal on the Nygard fence viewing. VOTE: Ayes 4, Nays 0. (Walsh recused himself from this matter) *5. #15-3758 CITY OF ORONO AND CLIFFORD OTTEN, 2251 PINE RIDGE LANE AND CITY OWNED PARCEL PINS 34-118-23-22-0019 (Well No. 3) LOT LINE REARRANGEMENT AND REZONING Levang moved, Printup seconded, to direct Staff to draft an approval resolution for the proposed lot line rearrangement. VOTE: Ayes 5, Nays 0. Levang moved, Printup seconded, to direct Staff to draft an ordinance to rezone the properties from RR-1B to R-1A. VOTE: Ayes 5, Nays 0. Levang moved, Printup seconded, to direct Staff to publish for a public hearing to vacate the road easement over Outlot C, East Willow Woods. VOTE: Ayes 5, Nays 0. *6. #15-3761 ON BEHALF OF NANCY RADERMECHER, 4775 NORTH SHORE DRIVE, VARIANCES RESOLUTION NO. Levang moved, Printup seconded, to adopt RESOLUTION NO., a Resolution Granting Setback Variances from Orono Municipal Code Section 78-1279, for the property located at 4775 North Shore Drive. VOTE: Ayes 5, Nays 0. 7. #15-3763 CHRISTOPHER W. BOLLIS, 200-350 STUBBS BAY ROAD NORTH PRELIMINARY PLAT Senior Planner Gaffron stated this is a proposed subdivision involving two tax parcels to create a new private road and seven new 2-acre building lots. All lots will be served by individual onsite sewage treatment systems and private wells. The two parcels involved are the properties located at 200 Stubbs Bay Road North and 350 Stubbs Bay Road North. The Planning Commission reviewed this application and held a public hearing at its July 20 meeting. The Planning Commission voted 5-0 to recommend approval of the application subject to conditions regarding the road design and that the two developments enter into a road agreement. The applicants are proposing to extend Kintyre Lane, which is a private road, northward to serve this development. The site includes a number of features that are notable. There is a wetland on the north and east of the property. The wetlands were initially proposed to have a 50-foot buffer but the Watershed District rules show they require a 75-foot buffer. Page 8 of 32
7. #15-3763 CHRISTOPHER W. BOLLIS, 200-350 STUBBS BAY ROAD NORTH PRELIMINARY PLAT (continued) The City does not require buffers, but the Watershed District buffers impact the develop ability of the site. Each of the lots has two acres of dry buildable land outside of the wetlands but the two acres includes area within the buffers. The buffers are not excluded from the dry buildable. Each lot is required to have two acres of dry land as well as a 200-foot width at the 50-foot setback line from the street. The first three lots have 100 feet at the 50-foot line. Lots 4, 5, and 6 do not reach that width until further back on the lot, which technically requires a variance. The applicants have shown that within each of those lots there is a building envelope and septic sites that meet the required setbacks and standards based on one part of the City Code. Gaffron noted state code does not require a setback from a wetland as long as the soils meet state requirements. The City Code for septic systems requires a 50-foot setback from the edge of the wetland. The Shoreland Ordinance also establishes that where there are buffers being required by the Watershed District, the setback has to be equal to the buffer width plus ten feet for structures and septic systems. Gaffron stated the City has not experienced in the past a 75-foot buffer requirement. In this case there are a number of septic systems where the absorption area of the mound system meets the 50-foot setback in all but one case but they do not meet an 85-foot setback. The City has historically required a75-foot setback from the wetlands, which was reduced down to 50. The state requires 0. In Staff s view a 50-foot setback is adequate. Gaffron indicated he did speak with the Watershed District on whether a septic system can go into a buffer. While the Watershed District does not prohibit it, they do recommend against it. One of the reasons is if a 75-foot buffer is required to be established, once the house is constructed and the septic system is put into that area, there is a 5-year monitoring program as part of their buffer maintenance requirement. Gaffron stated each of these lots has a likely location for a well 50 feet from any septic system and that he does not expect there to be any issues with providing wells on each lot. Gaffron stated a question that has been asked is whether or not what is remaining on the lots is actually buildable. Gaffron indicated there are a number of locations where the house could move further south and Staff does not believe that will be an issue. The proposed single-family development is consistent with existing development in the surrounding neighborhood. Similar single-family lots with 2-plus acre lot sizes exist to the north, while the lots within Kintyre Two to the immediate south range from 1.4 to 3-plus acres. The portion of the property to be developed for new single-family lots is somewhat remote from the surrounding public roads. The property slopes downward generally from a high point at the southwest to a large wetland complex to the northeast and east. A smaller wetland to the northwest will also impact development of the site. Outlot A is part of the property that is being subdivided but the applicants are proposing at this time not to develop Outlot A. Outlot A will not be buildable until at some point in the future it is re-platted into one or two building lots. There is a potential for three and possibly four lots with access off of Stubbs Bay Road or Kintyre. Page 9 of 32
7. #15-3763 CHRISTOPHER W. BOLLIS, 200-350 STUBBS BAY ROAD NORTH PRELIMINARY PLAT (continued) City Code standards says that a cul-de-sac road should be no longer than 1,000 feet in length. This cul-de-sac will be 1,550 feet in length. The City has quite a number of private roads with cul-de-sacs that have that characteristic. Staff has spoken with the fire chief about his concerns and he said it is very likely that each one of these lots will have a house on it that exceeds the threshold for requiring a fire suppression sprinkler system. Based on that, the fire chief is not at all concerned with the length of the road as long as they maintain an adequate width. The existing Kintyre Road is 24 feet in paved width with an 80-foot paved cul-de-sac. The applicants initially proposed a width of more than 24 feet but the current proposal is to have a surmountable curb for a good share of the length of the road. Back of curb to back of curb is a 30-foot width, which would mean the road would widen as you approach this development. The neighbors have asked what happens to the existing cul-de-sac. One of the concerns of the fire chief was that he does not want to see an island in the middle of it because the road will likely need to be widened out further. Gaffron stated he is not sure if the neighborhood would be acceptable of having a through road in this area. Gaffron noted the existing road does end before you reach the next property up. Gaffron noted the City, in its original approvals in 2006 for Kintyre Two, required that the applicant provide the ability for the next property up to be accessed, which is Outlot D. The developer of Kintyre has provided the City with an easement document that allows the extension of that road. It was the City s intent both at the preliminary plat approval and final plat approval that Kintyre Lane be extended further to the north or at least have that available. The Applicants have been advised of the ability to build houses that have three stories. The plans in front of the City Council have a grading plan that indicates that certain of the building sites will have pads graded to make sure that when the City reviews the building plans, that they will have now created as a new grade in order to construct homes with basements rather than three or three and a half stories. As it relates to the landscaping plan, the applicants are proposing to place a number of trees along the road to help buffer between the existing houses and along lot lines. In addition, the applicants are proposing a number of trees to screen from the south. The applicants will also attempt to save as many trees as possible but there will still need to be a number of trees removed. City Code requires that one tree for every 40 feet of boulevard be planted, but in the past the Council has not required that and Staff would ask that the Council provide some direction on the layout of trees. Lot width variances are required for Lots 4, 5, and 6 and it is not unusual for the City to grant those. Gaffron stated the existing driveway corridor serves as a driveway entrance to the house at 350 Stubbs Bay North. The applicant has been asked what his intent is for that corridor and he has indicated at the present time he has no plans. Gaffron stated the applicant can address that as to his intent for that corridor. Walsh noted the property on either side of that road is not owned by Mr. Bollis but he just has an interest in that road. Page 10 of 32
7. #15-3763 CHRISTOPHER W. BOLLIS, 200-350 STUBBS BAY ROAD NORTH PRELIMINARY PLAT (continued) Gaffron stated that is correct and that it is his understanding it is an independently owned property and the corridor serves as a driveway to the existing house. Christopher Bollis, Applicant, stated that is correct. Gaffron stated if the house is either maintained as it is or replaced with a new house and there is an intent to have a driveway coming down to the new cul-de-sac, the question becomes whether there is a need to have a secondary driveway. If not, that driveway can be removed and there can be some wetland rehabilitation. At this time Staff is not aware of what will happen in that area. Gaffron stated one of the key issues for the neighborhood has been an agreement for future maintenance of the joint road. It is the intent at the present time for it to be a private road serving 13 units. The road currently serves six units. Gaffron stated it is his understanding the developer of Kintyre Two and Mr. Bollis have been in a number of discussions and that the applicant will need to address that. The City Council should address the following: 1. Does the City Council have any concerns regarding the proposed road width, length and design? 2. Does the City Council have any concerns about the lot width variances for Lots 4, 5, or 6? 3. Should the City consider allowing septic system drain fields within MCWD required buffers as long as a 50-foot setback is met? What are the downsides of such a code change? Or should the applicant be required to locate drain fields to meet the 85-foot wetland setback where required? 4. Is the landscape plan acceptable as presented? 5. The council should review the Conservation Design materials in the Planning Commission packet and determine whether there are any potential concerns. 6. What is the status of negotiations between MacKinnon and Bollis regarding the necessary road agreements? Will Council grant preliminary plat approval without a road agreement in place? Gaffron stated if the Council finds the conditions and proposals acceptable, Staff would then bring back a resolution for approval. McMillan stated she will allow public comment after the Council has discussed some of the issues. Printup indicated he is okay with the road design as it is laid out as well as the 24-foot width. Levang stated she is okay with the 24-foot width and that it makes sense to match up the width of the two roads. Levang asked how many homes will come off the cul-de-sac. Bollis stated Lots 4, 5, and 6 would have their driveways off the cul-de-sac and Lot 7 would have its driveway off the road. Page 11 of 32
7. #15-3763 CHRISTOPHER W. BOLLIS, 200-350 STUBBS BAY ROAD NORTH PRELIMINARY PLAT (continued) Levang asked if Lots 1, 2, 3 and 7 would access off of Kintyre rather than the cul-de-sac. Gaffron stated those would likely have driveways that do not enter into the cul-de-sac. Bollis indicated that is correct. McMillan asked if there are any issues with Outlot A by adding one or two driveways. Gaffron stated there should not be any issues with adding more driveways Walsh stated at the top of the cul-de-sac, there is some pretty narrow access, which raises concerns about snow plowing. Bollis stated to his understanding City Code allows for a minimum of 11 feet for driveway access. Lot 5 has 30 some feet in width. Bollis stated in his view it is adequate width to put a driveway there. Gaffron indicated the City does have similar situations in other areas. From a public road standpoint, this would not be the ideal situation for maintenance and the City would prefer not to have driveways that are all accessing onto a cul-de-sac. Gaffron stated with three driveways accessing off of the cul-de-sac, it is probably not an issue. The cul-de-sac has a paved 80-foot width and will need to be maintained all the time in the event emergency vehicles require access. Levang noted the Oliver Hill development is somewhat similar to this development. McMillan stated the issue that is unresolved is the existing cul-de-sac and what should be done with it. McMillan stated it is doubtful the City can arrive at a decision on that tonight. Gaffron agreed that it is unresolved at this time and that he will be asking the engineers to review it. The neighbors have indicated they prefer the cul-de-sac to remain. Staff has not made that decision since it should be up to the developers and the property owners who are on that cul-de-sac. Gaffron stated in other situations a portion of the road has been platted as an outlot. Walsh noted the original development said that portion should be an easement and that it is now proposed to be platted as an outlot. Walsh asked how that piece got platted as an outlot. Gaffron stated that is what the first developer proposed and it was approved that way. Gaffron stated it did not become an issue until this year. Walsh stated without that a road cannot be built. Mattick stated that area is owned by three different parties and that Mr. MacKinnon is working to obtain the necessary signatures on the easement, which will then be recorded and will provide access. Printup asked if there is anywhere else in the City where there is a cul-de-sac in the middle of a road. Page 12 of 32
7. #15-3763 CHRISTOPHER W. BOLLIS, 200-350 STUBBS BAY ROAD NORTH PRELIMINARY PLAT (continued) Gaffron stated not to his knowledge outside of Weir Lane. The City has platted many corridors for connections such as this but they have never been built. Walsh asked if the City is contemplating the possibility of telling Kintyre Two that they have to change the road or whether that is something that is totally up to them. Gaffron stated he would ask the engineers to discuss it but that to his understanding there are ways to leave the cul-de-sac as is without causing a problem. Walsh asked if the City can require the original Kintyre development to change the road. Mattick stated he has not reviewed the Kintyre documents in a while, but the general answer would be that the City required a through street to be platted for future development at some point. In the past the City has done a separate outlot, which makes it easy to vacate, but that was not done in this situation. Walsh asked if the City can require the initial Kintyre developer to vacate that portion. Mattick stated he would be inclined to say no. Bollis stated the neighboring property, Graham Hill, has a similar double cul-de-sac in it but it is just offset a little bit more. Bollis stated that is a pretty seamless road and is not very noticeable. Bollis stated as the developer of this property and speaking for the future property owners to the north, he would be in favor of letting the Kintyre residents decide what to do with the cul-de-sac as long as it does not impede access to this development. McMillan asked if Staff would like to see the road maintenance agreement before final plat. Mattick stated Staff has indicated it would be nice to have one. At this point in time Staff s direction has been to have the two developers work it out. Mattick stated he is aware there have been some stumbling blocks and that there is not one in place at this point, but it is the City s hope that one would be in place prior to final plat. McMillan asked if anyone on the Council has any issues with the lot width variances. It was the general consensus of the City Council that they are okay with the lot width variances for Lots 4, 5, and 6. McMillan asked if the City Council is okay with some of the drain fields being located within the 50-foot setback. McMillan noted there are a couple that appear to be within the 75-foot setback. Gaffron stated every septic site meets the 50-foot setback but not the 75-foot buffer. The 75-foot buffer requirements results in a number of primary and alternate sites being within the buffer. Gaffron stated the portion within the buffer area is likely just the drain field portion. The Watershed District recommends it not be located within the buffer but does not prohibit it. Staff would suggest the developer explore buffer averaging with the Watershed District. Page 13 of 32
7. #15-3763 CHRISTOPHER W. BOLLIS, 200-350 STUBBS BAY ROAD NORTH PRELIMINARY PLAT (continued) McMillan stated her thought was to mitigate whatever infringes on the buffer. McMillan stated the City could waive the 10-foot requirement that the City has, but that will still not help them. McMillan stated with a mound system, they will not really be planting buffer vegetation on there. Rusty Olson, Septic Designer, stated there are many different types of grasses that the state says can be planted in a buffer area and one of them is basically prairie grass. Olson stated that would be suitable in this scenario. Levang asked if he is amenable to speaking with the Watershed District about the buffer averaging. Bollis stated he can look into that but that he is under the understanding that they meet the septic setbacks of 50 feet for this project. Bollis stated he does not see anywhere in the Code where it says 85 feet. Gaffron noted they are speaking of the Watershed District requirements and that he will need to obtain their approval. Bollis stated to his understanding their requirements are zero and that it can be within the buffer area. Bollis indicated they are meeting state code at 0 and city code at 50. Bollis stated to his knowledge the 75-foot buffer is for building and not septic. Bollis stated to his understanding they meet the Watershed District s requirements since they allow them in buffers. Gaffron asked if he has had discussions with the Watershed District about the plat in general from an engineering standpoint. Bollis indicated they have seen the plat. Printup stated in this view this is one of the items that can be ironed out and tweaked further down the road. Printup stated he is comfortable with that portion of the application but that he would like to learn more about what the City requires and what the Watershed requires. Printup stated he is hearing that the City does not require a 75-foot setback and the Watershed District does not require that and so he would like to error on the side of the homeowner. Gaffron stated when the City gave up their authority relating to buffers, one of the things the City wanted to accomplish was to avoid a situation like Stone Bay where the homes are built right up to the buffer setback. The City wanted to have a 10-foot setback to buffers for structures, wells, and septic systems. The question then becomes whether the City is really concerned about meeting a 50-foot setback or a 75-foot buffer for a septic system. If the Watershed District does not prohibit having septic systems in a buffer and simply requires a maintenance plan for the wetland and wetland buffer, it then becomes a question of whether the City wants to have in their code that someone needs a greater setback. Gaffron indicated he would be in favor of removing septic systems from the portion of the code that talks about a 50-foot buffer plus ten feet. Walsh stated they do not want to get buffers and setbacks confused and that this is a buffer. Walsh noted the developer is meeting the setbacks. Page 14 of 32
7. #15-3763 CHRISTOPHER W. BOLLIS, 200-350 STUBBS BAY ROAD NORTH PRELIMINARY PLAT (continued) McMillan pointed out this is a managed wetland, which is a high quality, healthy wetland, which requires a bigger buffer. McMillan stated there are not a lot of 75-foot buffers that are required and that the City s Code says 50 feet. McMillan stated the City could grant certain waivers for certain lots but still require the 50-foot buffers. McMillan stated in her view it is something the City should take very seriously and that the Watershed District has analyzed every single wetland in the City and requires different qualifications and classifications depending on the type of wetland it is. McMillan stated the City could grant a variance to allow septic systems within the 75-foot buffer. Rusty Olson noted the buffer is there to prevent the wetland from runoff. The mound system will have vegetation over it so there will not be runoff like a hard surface where there is 100 percent runoff towards the wetland. McMillan stated the wastewater would go straight down and not run into the wetland. McMillan stated a variance would be one way of dealing with that situation. McMillan asked if the City Council has any concerns about the landscape plan. McMillan stated she is fine with it. Printup indicated he is fine with it. Walsh noted Outlot A has approximately 2,000 trees in it. Bollis stated they are proposing 40 new development trees along with a total of 21 owner trees, which would put them at a total of 61 developer trees. City Code only calls for 13.75 trees. Bollis stated they chose to lay the trees out in a way that would buffer the homes more rather than simply along the boulevard. Walsh stated he would like to hear what the neighbors have to say about the trees. Levang noted there are some trees along the road as well as along the lot lines. Levang asked if Outlot A would look the same from the road. Levang stated it appears from the plan that Outlot A is bare along the road, which is not correct. Bollis stated Outlot A has quite a few trees and that there are trees that abut the road. Levang stated she likes the trees along the lot lines to provide more privacy for the lots, which is something the City has not required before. Gaffron pointed out the existing cul-de-sac and the proposed extension of the road. Bollis stated those trees would stay and that they will be avoiding the two clumps of trees. Bollis stated his belief is that they will only lose 15 trees for the road and that there will be a net gain of 46 trees on the whole development. Levang asked if the trees are being positioned to protect the building sites. Page 15 of 32
7. #15-3763 CHRISTOPHER W. BOLLIS, 200-350 STUBBS BAY ROAD NORTH PRELIMINARY PLAT (continued) Bollis stated that was the intent. Bollis noted the Code simply says one tree for every 40 feet of road but does not specify where the trees must go. Levang stated she prefers the more staggered and natural look, which is what the developer is proposing in this situation. McMillan asked if the Council has any concerns regarding the Conservation Plan. The City Council had no concerns regarding the Conservation Plan. McMillan noted the Council has already discussed Item No. 6 in Staff s report. McMillan stated Item 7 would be other issues or topics. McMillan asked if the Council is okay with the building pads and grading for the building pads. Levang stated she would like to hear a little bit more about that. Bollis stated he would refer that question to his engineer. Charlie Weimershaw, Engineer, stated he shows grading for all of the lots, including the lot with the existing house. Weimershaw stated in conversations with Staff last week, they discussed changing the grades to allow for 2-1/2 stories with a walkout. Gaffron indicated Staff also discussed whether the building pads will be graded at the time of road construction or whether they will be graded in separately. Weimershaw stated they would like approval of the plan with the proposed grades and that they would then grade them on a lot by lot basis. Gaffron stated as long as there is a plan that establishes the new grades that should not be a problem. Gaffron indicated the City did something similar with the Creekside development. From an engineering perspective, Staff would rather see all of the pads get graded initially. Bollis stated the reason for not grading all the lots at the same time is that it gives the future property owners a little more flexibility in where they would like their house to be located or whether Lots 3 and 4 are combined. McMillan suggested Staff discuss that issue further with the engineers. Gaffron stated it is important that the future builders identify how the City measures the height of a story and determines whether it is a basement or not. McMillan stated typically when more than 50 percent of a story is covered by dirt, it is considered a basement versus a level. Page 16 of 32
7. #15-3763 CHRISTOPHER W. BOLLIS, 200-350 STUBBS BAY ROAD NORTH PRELIMINARY PLAT (continued) McMillan noted Lot 5 has an existing house and driveway with a functioning septic system that is located partially on Lot 4. McMillan requested the applicant provide a little more background on what will happen with that lot. Bollis stated ultimately that house will disappear and a new home will be built. McMillan asked if the septic will remain. Bollis stated they did not want to have that nonconforming and that they are in discussions with Staff to keep the existing septic for the time being but it would be removed once either Lots 4 or 5 are built on. Gaffron indicated the City is exploring the possibility of a temporary easement that would be extinguished at the point that one of those two lots gets built on or once they are sold. Gaffron stated building on Lot 4 will likely be the key for when the septic system becomes an issue. Cornick asked if there is any time limit for how long the house can stay. Gaffron stated as long as Lot 4 never gets built on, the City does not care as long as there is an easement in place. In a normal situation, the City would expect that those two lots, unless they are combined, would both get built on. The City has done lot line rearrangements in the past to ensure that a septic system that is over the line is within the lot it is serving. Gaffron stated an easement is not the best solution but that jogging the property line for a temporary situation is also not ideal. Cornick asked whether a time limit could be placed on the easement. Gaffron indicated there could be a time limit placed on the easement. Gaffron stated currently the trigger would be the house being constructed on the next lot, which would extinguish the easement. Gaffron stated Simple when there is single ownership but once the ownership changes, there are potential issues. McMillan asked if anyone in the audience would like to comment on this application. Eric Miller, 195 Kintyre Lane, stated they are not opposed to the development but that they bought lots and built homes on what they thought was going to be a short, safe cul-de-sac. Miller stated as parents of young children, they placed a premium on that. Miller indicated the easement that provides access to the private road was never properly recorded and was recorded as an outlot. Miller stated when they purchased and went through the title search process, nothing was ever brought up about this future development. Miller indicated he has had discussions with MacKinnon, Staff, an attorney, and now the City Council to try to understand what their rights are. Miller stated he is not entirely convinced that Mr. MacKinnon has the authority to sign an easement on their behalf after they have purchased their property. Miller indicated there is Chapter 515B of the MN Common Interest Ownership Act and things that go beyond who controls the homeowners association and who controls the outlot which need to be reviewed more thoroughly. Page 17 of 32
7. #15-3763 CHRISTOPHER W. BOLLIS, 200-350 STUBBS BAY ROAD NORTH PRELIMINARY PLAT (continued) Miller stated if this request for the road is granted, the result is going to be a road that is too long and too narrow. Miller indicated the road goes up a big hill, then goes straight, and that there will potentially be 13 homes on it, with perhaps another two to four homes being added at some point. Miller stated that amount of homes will generate a lot of traffic that they did not anticipate at the time they purchased their home and that given the length of the road and the width of the road, it is not something that they are comfortable about. Mrs. Miller stated according to her research, placing a maximum length on a cul-de-sac is to restrict speed to some extent. Kristine North, 180 Kintyre, stated they also have concerns about visibility. Currently there are ten children in the neighborhood, with six under the age of five. The children like to play in the cul-de-sac. There is also an elevation going down from some of the existing homes into the cul-de-sac. North stated they have concerns with emergency vehicles and the road not being up to City standard. North indicated they would like the opportunity to hire their own civil engineer to take a look at the road situation as well. Mr. Miller stated they have just found out about this development in the last couple of months and that they are still attempting to understand exactly what is going to happen on the site and the implications for their property. Miller stated he would hope the developer understands their concerns. In a perfect world the new development would access off of Stubbs Bay potentially via the driveway that is currently there. Miller stated he understands a lot of work has gone into designing the preliminary plat but that he would like the developer to consider that option. Mrs. Miller stated they purchased a property at the end of a cul-de-sac without the ability to find out about this agreement. North stated there is still a sign on Watertown Road advertising this development as a cul-de-sac road with two lots remaining. Mr. Miller stated there is a sign talking about the development off of Stubbs Bay. Miller stated usually when there is a road that is going to be extended, there is some signage by the City. Miller stated had they known about this, they would have weighed that in their decision to purchase, and that they would now like to understand better what their options are. Mrs. Miller stated they would like additional time to figure out what options they have. McMillan asked how much more time they require. Mrs. Miller stated probably a month and that they have already been discussing this matter with an attorney. Walsh stated he brought up the same issue regarding the cul-de-sac with Mr. Bollis earlier in the process and that he appreciates the dilemma the residents find themselves in. Mrs. Miller stated it was never recorded and not on their title. Page 18 of 32