Loading...
79-04 - Fox Chase PUD pt 22-+q —14 REGULAR C"--�VHASSEN CITY COUNCIL MEET'); JANUARY 17, 1983 Mayor Hamilton called the meeting to order with the following members present: Councilwomen Swenson and Watson, Councilmen Horn and Geving. The meeting was opened with the Pledge to the Flag. APPROVAL OF AGENDA: Councilwoman Swenson moved to approve the agenda with the following additions: 1. Update on Derrick Development. 2. Old Instant Web Building. 3. Stop Signs. 4. Street Lights. 5. League Conference Meeting. 6. Sewer and Water Billings. Motion seconded by Councilman Horn. Hamilton, Councilwomen Swenson and No negative votes. Motion carried. The following voted in favor: Mayor Watson and Councilmen Geving and Horn. Councilwoman Swenson requested signed copies of all new ordinances. CONSENT AGENDA: Item (b) Lake Drive East, Authorize Feasibility Study was removed from the consent agenda. Councilman Geving moved to approve the consent agenda pursuant to the recommendation of the City Manager. a. Resolution requesting the County Board Appraise all Properties equally within the County. RESOLUTION #83-01. Motion seconded by Mayor Hamilton. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson and Councilmen Geving and Horn. No negative votes. Motion carried. MINUTES: Amend the December 20, 1982, Council minutes, page 3, by deletin the following phrase under Councilman Horn: "rather than individual lots, you could have". Amend the December 20, 1982, Council minutes, page 24, STOP SIGN PETITION, FRONTIER TRAIL AND HIGHLAND DRIVE by adding the following: Counc.ilman Hor stated he has spoken with Wally Coudron who lives right along Frontier Tra and I asked him what he felt the problem was in that area and he said that the problem is obvious that there is too much speed going through the bottom of the gully and in fact the majority of the problem comes from the south. He feels the only thing that the stop sign up there would do would be perhaps deter more people onto Laredo Drive instead of taking Frontier. That would be the only affect that it would have on the traffic in that area. Councilman Horn's concern with that is that it is putting the traffic right in front of the school. He cannot support anything that will take traffic from Frontier and put it on Laredo in front of the school. Councilman Horn also talked with Officer King of the Carver County Sheriff's Department and asked him his opinion. Officer King's feeling is that putting stop signs at Highland Drive will have absolutely no affect on the speed in the problem area because it is too far away. Councilman Horn further stated that the Council has facts available from the City Engineer and police officers and the Council should deal with the facts presented. Amend the December 20, 1982, Council minutes, page 25, CONDITIONAL USE PERMIT, ESTABLISHMENT OF A GOLF DRIVING RANGE, GALPIN BLVD. by adding the following: Councilman Horn - The reason that we are allowing this is we are looking as a land intensive use similar to a regular golf course, what other types of uses are you concerned about that would fall in this Council Meeting January 7, 1983 -2- category? Bill Swearengin - Let me state this from what the Planning Commission talked about. We were concerned that it is a commercial venture and that the Planning Commission and Council also turned down other t commercial ventures of a similar use. Councilman Horn - Land intensive? Bill Swearengin - An otter slide. Councilman Horn - That's not land intensive which is exactly the reason we turned down the mini -putt. What we are concerned about, are their other types of land intensive uses like a golf course that the Planning Commission talked about that would be open for precedent? Bill Swearengin - I believe the Council rejected and closed down the black dirt operation across the street which you would call a land intensive use because it was a commercial venture. We differentiated between a golf course and a driving range and we felt that the driving range was strictly a commercial venture and really would be viewed by the public as such also and this is how we attacked the problem. Mayor Hamilton moved to approve the December 20, 1982, Council minutes as amended. Motion seconded by Councilman Geving. The following voted in favor: Mayor Hamilton, Councilwoman Swenson, Councilmen Geving and Horn. Councilwoman Watson abstained. Motion carried. Councilman Horn moved to note the January 4, 1983, Park and Recreation Commission minutes. Motion seconded by Councilwoman Watson. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson and Councilmen Geving and Horn. No negative votes. Motion carried. LAKE ANN INTERCEPTOR, METROPOLITAN COUNCIL PROPOSED CHANGE OF ALIGNMENT ON LAKE LUCY ROAD AND PLEASANT VIEW: The Council reviewed an official response to Metro Council's plan amendment in preparation for presentation to the Physical Development Committee on January 20. Mayor Hamilton stated he would make a verbal presentation at the hearing. OFF -SALE LIQUOR LICENSE APPLICATION, JGM LIQUOR: Councilman Geving moved to cancel the approved Grapevine, Inc. Off -Sale Liquor License. Motion seconded by Councilman Horn. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson and Councilmen Geving and Horn. No negative votes. Motion carried. Mayor Hamilton moved to approve the Off -Sale Liquor License application for JGM Liquor, Inc. to be located at 530 West 79th Street. Motion seconded by Councilman Horn. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson and Councilmen Geving and Horn. No negative votes. Motion carried. BILLS: Councilman Horn moved to approve the bills as presented: checks '14232 through #14302 in the amount of $478,093.94, and checks #18539 through #18601 in the amount of $1,085,968.82. Motion seconded by Councilwoman Swenson. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson and Councilmen Geving and Horn. No negative votes. Motion carried. SIGN PERMIT APPLICATION, 460 WEST 78TH STREET, SUNLIFE OF CHANHASSEN: II, One business identification sign measuring 12 feet by 8 feet is proposed. f Councilwoman Swenson moved to approve the sign request (83-2 Sign Permit) for Pauline Erickson/Michelle Magnuson for the SunLife of Chanhassen. Motion seconded by Councilman Horn. The following voted in favor: Mayor Council Meeting Ja�ary 17, 1983 -3- Hamilton, Councilwomen Swenson and Watson, Councilmen Geving and Horn. N negative votes. Motion carried. SIGN PERMIT APPLICATION, 530 WEST 79TH STREET, CHANHASSEN VIDEO: Kenneth Wellens is seeking approval to install a 4 foot by 13 foot non -illuminate wall -mounted business identification sign. Councilwoman Swenson expresse, concern that this proposed sign was not the same as other signs proposed for the building. Councilman Horn - I guess what this really tells us is that we will only have one major recognizable business in each new building we have because the first one in will set the tone for every sign that goes in there. If we had somebody else that had some nationwide identification sign like MGM, they couldn't go in that building because their sign would be a nationally syndicated type of this and in all likelyhood would not be compatible. That's the only drawback I see with having consistency beside that the building next to it can have a totally differes motif. Where do you get your uniformity, is it around the building or is it around the district? Councilman Horn moved to approve the sign request for Chanhassen Video. Motion seconded by Councilman Geving. The following voted in favor: Mayor Hamilton, Councilwoman Watson, Councilmen Geving and Horn. Councilwoman Swenson abstained. Motion carried. 1983 PARK'CHARGE FEE: Councilman Geving moved to leave the park charge fee at the 1982 level for 1983. Motion seconded by Councilman Horn. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watsor and Councilmen Geving and Horn. No negative votes. Motion carried. LICENSING/PERMIT ORDINANCE: This item will be on the February 7 agenda. PROPOSED LANDFILL: Mayor Hamilton gave a report on a recent meeting with a Metropolitan Council committee. DERRICK LAND COMPANY UPDATE: Mayor Hamilton reported on the status of thi proposed development. OLD INSTANT WEB BUILDING: Council members requested a joint meeting with the HRA to go discuss the options for repairing the building. FRONTIER TRAIL STOP SIGNS: The City Engineer reported that the stop signs at Frontier Trail and Highland Drive have been installed. STREET LIGHTS: Three street lights on Frontier Trail, one on Pleasant View Road, and one on Kerber Blvd. will be installed by NSP in the near future. SEWER AND WATER,BILLINGS: Mayor Hamilton suggested that when accounts are delinquent letters be sent to the customer stating that unless the bill is paid their water will be shut off. The City Manager suggested that the late charge be increased to 10% on the unpaid balance. He will prepare an ordinance amendment for the next Council agenda. Council Meeting January 7, 1983 -4- LEAGUE MEETING: The Legislative Conference will be held January 26. LOAD LIMIT SIGNS, BLUFF CREEK DRIVE: The City Engineer stated that the signs have been ordered. LAKE DRIVE EAST FEASIBILITY STUDY: Councilman Horn moved to delay the feasibility study until such time as the City Engineer has the time to complete it or it becomes more financially feasible. Motion seconded by Mayor Hamilton. The following voted in favor: Mayor Hamilton, Councilwoman Watson, Councilmen Geving and Horn. Councilwoman Swenson voted no. Motion carried. Councilwoman Swenson moved to adjourn. Motion seconded by Councilman Horn. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson and Councilmen Geving and Horn. No negative votes. Motion carried. Meeting adjourned at 10:15 p.m. Don Ashworth City Manager •• REGULAR CHA`�'SSEN CITY COUNCIL MEETINr'-'�EBRUARY 7, 1983 Mayor Hamilton called the meeting to order with the following members present: Councilwomen Swenson and Watson, Councilmen Geving and Horn. Craig Mertz, Russ Larson, Bill Monk, Scott Martin, Don Ashworth, and Bob Waibel were present. Jim Thompson, Planning Commission, was also present. The meeting was opened with the Pledge to the Flag. APPROVAL OF AGENDA: Councilwoman Swenson moved to approve the agenda with the following additions: discussion of Council goals and obje.ctives of Commissions, status report on .:Cable TV, and update on the Old Instant Web Building. Motion seconded by'Counci,lman Horn. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson and Councilmen Geving and Horn. No negative votes. Motion carried. JAYCEE RUN: A representative from the Chanhassen Jaycees explained that the Jaycee's are planning an 11.2 mile run for May 21st. The run is proposed to begin and end on West 78th Street. Mayor Hamilton referred this to the Public Safety Commission for their review. CONSENT AGENDA: Councilman Geving moved to approve the consent agenda pursuant to the City Manager's recommendations: 1. RESOLUTION #83-02, Set Public Hearing Date for 201 Program. March 7. 2. Approve Engineering Contract with Maier. Stewart and Associates for 201 Program. 3. RESOLUTION #83-03, Approving and Accepting Indemnity Agreement for Sanitary Sewer Easement, Lot 4, Block 5, Chanhassen Lakes Business Park. Motion seconded by Councilwoman Watson. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson and Councilmen Geving and Horn. No negative votes. Motion carried. _J MINUTES: Councilwoman Swenson moved to approve the January 10, 1983, Council minutes. Motion seconded by Councilman Horn. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson and Councilmen Geving and Horn. No negative votes. Motion carried. Amend the January 17, 1983, Council minutes by changing the last sentence at the end of the first paragraph under SIGN PERMIT APPLICATION, 530 WEST 79TH STREET, CHANHASSEN VIDEO: Councilwoman Swenson suggested that the developer present planned signage for the building at the time of his presentation to the Planning Commission. (Amended March 21, 1983) Councilman Horn moved to approve the January 17, 1983, Council minutes as amended. Motion seconded by Councilman Geving. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson and Councilmen Geving and Horn. No negative votes. Motion carried. Mayor Hamilton moved to note the December 15, 1982, Planning Commission minutes. Motion seconded by Councilwoman Swenson. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson and Councilmen Geving and Horn. No negative votes. Motion carried. Mayor Hamilton moved to note the January 12, 1983, Planning Commission minutes. Motion seconded by Councilwoman Watson. The following voted in -� favor: Mayor Hamilton, Councilwomen Swenson and Watson and Councilmen Geving and Horn. No negative votes. Motion carried. Council Meeting February 1983 -2- Councilman Geving moved to note the January 26, 1983, Planning Commission minutes. Motion seconded by Councilwoman Watson. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson and Councilmen Geving and Horn. No negative votes. Motion carried. Mayor Hamilton moved to note the February 1, 1983, Park and Recreation Commission minutes. Motion seconded by Councilman Geving. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson and Councilmen Geving and Horn. No negative votes. Motion carried. Mayor Hamilton moved to note the January 4, 1983, Environmental Protection Committee minutes. Motion seconded by Councilman Horn. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson and Councilmen Geving and Horn. No negative votes. Motion carried. Mayor Hamilton moved to note the January 26, 1983, Public Safety Commission minutes. Motion seconded by Councilwoman Watson. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson and Councilmen Geving and Horn. No negative votes. Motion carried. CARVER BEACH PARK, REVIEW BOAT MOORING, BOAT STORAGE, AND BOAT DOCK POLICIES: The Council had asked to review this item. The question arose after citizen questions as to boat storage, dockage, and boat mooring in the Carver Beach area. Staff has reviewed the files and found that the City has not permitted boat dockage or storage on City property. Council members reviewed a letter from Phyllis Pope. The Park and Recreation Commission has reviewed the issue and the Council has received their imput. Mayor Hamilton - It was reviewed by the Park and Recreation Commission and we did receive their imput and the City Attorney has done research on this particular item. He has gone back to prior to this being city owned property and going through the turn over of that property to the City and searching for any agreements that might have been made at that time. It seems to me it's one of those issues that can be black and white and it can be something else. There is the possibility there is room for some alternatives here, however, I feel that this city property shouldn't be treated any differently than any other city property. You have got some property that's on a lake, it's owned by the City, there is a park to be used by the public, there is a path that the public can use on that property and the property extends over a boat access. What it boils down to is that there are no ancillary uses to the residents of Carver Beach or to any other residents of the community. It really wouldn't be any different if I owned a boat and put it on the lake and tied it up to a tree or pulled it up on the beach in Carver Beach it would be the same thing. Consequently by allowing the residents in Carver Beach to use city park property to dock their boats for their personal use, we would then have to allow any other resident of the city, if they wanted to use a city park space, we would have to allow them to put their boat there also. I have to agree with the City Manager's recommendation that there not be any boats or docks or floating docks or anything allowed to be pulled up on the shore, to be tied to a tree or to be moored overnight or to be left on city property at any time. Councilman Geviny - Did we get any other imput on the public meeting notice. Were there any letters submitted other than Phyllis Pope's? Council Meeting Fe(- ary 7, 1983 -N -3- Roger Byrne - I have a letter from Bill Moreno. He couldn't make it tonight so he sent a letter. Councilwoman Watson - I live 12 blocks from a city park too and I know if it were possible a lot of persons in my neighborhood would love to leave their boats down there. I think that it could present a problem when it became known that one city park allowed this. I think we would suddenly find ourselves with boats at.Lake Ann Park and any place else. Councilwoman Swenson - Just exactly how far does the public property go? Mike Lynch - We had that researched on the commission and it runs from from the southern edge of Carver Beach, north to the boat landing. Just north of the boat landing is the lift station and we were just told recently that the strip that runs north of that to where it becomes woods is also city property. We didn't know that originally. Councilman Horn - I have one question in the November 1968 memorandum from Russell Larson saying that the attitude was that the residents supported the conveyance provided some assurance could be given that the so-called park strip bordering the lake would not be used for unlimited public access, is that something that once it's deeded over that could be part of the stipulation? Russell Larson - In my discussions with the board of the Carver Beach Association at that. time there was no request for that stipulation to be placed on any usage down there other than the general concept that the -; city has the right at any time to regulate its park land. Councilman Horn - So there are no pre-existing conditions. Harrison Winters - Mr. Larson was there when we turned over our property to Chanhassen and the stipulation was that we wouldn't have to pay taxes on it anymore. When we turned it over we were three years behind and we were going to make a park out of it but they were going to make it exclusive for Carver Beach. He will tell you all about it. We were going to turn it into a park but it would be public, we realized that, but they were going to keep it a low profile so we were going to keep it for Carver Beach only. Mr. Larson will tell you all about it. Mayor Hamilton - I think it probably about as low a profile as it can get with no parking allowed within blocks of it. Glen Grenier - I think there are certain geographical limitations on that area, the fact that there is no parking, the fact that just about all acces has to be on foot, that this lends itself to a situation where excessive or overuse of that property is not going to be a problem and I cringe a little bit at the use of the statement, private use of public property and I think that perhaps it's only becomes really private when that is exclusiv use of public property. It can only be truly public use when the public is invited to have a town picnic perhaps put on by the town. What is occurring in Carver Beach is not exclusive use of public property. It is not exclusive use at all, it is perhaps a little bit questionable as to whose jurisdiction is completely covering all the issues and I don't profes to know that, I would like the Council to speak to that in fact where is th Council Meeting February , 1983 jurisdiction of the City of Chanhassen relative to the shoreline. This, I guess, gets into the question of mooring. Geographical limitations prevent the excessive and overuse of that land and that it is not being exclusively used as private property. Harrison_ Winters - Before we turned the property over to you I had a dock and they raised so much cain about that I got rid of it. At the time we were definitely going to get use of this property exclusive for Carver Beach only, what happened to that? If we weren't going to get any benefit from it, why should we turn it over to you? Mayor Hamilton - You are not paying taxes on that property. Harrison Winters - But if we can't lock our boats there we might as well take it back and when Carver Beach was established that park property was exclusive for Carver Beach residents and it was never to be sold. Legally I don't think you folks have a right to it now. If you don't want to live up to the agreement you did when we turned it over to you I think we should get it back. Mayor Hamilton - The city has lived up to every written agreement that exists. Verbal agreements, who knows what was made. You have one idea and Russ has another idea. None of us were privy to that at the time. Russell Larson - To give you a little history of it, the park properties were conveyed by a family named Smadbeck who were the developers of the Carver Beach plat. It was conveyed by the Smadbeck's to the then Carver Beach Association and in the deed of that conveyance states as follows: "That it will at all times keep and maintain and improve the parks above mentioned and the roads and drives for the benefit and use of the residents and inhabitants of Carver Beach and for the benefits of the general public" and that is the language I used in the deed. Don Ashworth - I think there is a question on the mooring aspect, mooring is only allowed in association with a lot that you own. The city owns that property and you can not moor a boat off that in terms of any DNR regulations any more than to pull a boat actually on shore. Mayor Hamilton - Just last fall the inventory that the city took, there were four fishing boats, three canoes, two sailboats, two pontoons, one naddleboat and one floating raft. One of the boats, by the way, was tied to a tree by a chain and the chain had worked its way through the bark so now we will have a dead tree there. Councilman Geving - I have a question of Russ in the last condition of this Carver Beach park memorandum. Russell Larson - If the association had failed to comply with the conditions as setforth in the deed, that Smadbeck or his heirs could then come back and in a court of law set the deed aside for failure on the park of the association to comply with the conditions and recover the land. Mike Lynch - The Park and Recreation Commission is basically interested in _ their trail. There were a number of suggestions what should be done. We just want to be sure that the trail is not jeopardized. We loosely use the 'Council Meeting Febr~try 7, 1983 "I'll) -5- word mooring sometimes. Generally what we are talking about is storage overnight. Anybody can pull up their boat on any park property during the day but it's got to be out of there at night. So when we talk about mooring you are talking about overnight storage. There were a couple complaints about some shrubbery being removed, the only thing we really found offensive when we all went over there and personally reviewed it, was the washout at what's called the old mini -beach and that's basically road grading and I would like., to get it into the record and maybe ask Don to see about when they top dress in:.the spring if they can dress away from that area because the walking path is now interrupted at that point. We are going to get a culvert in there in case it redevelopes. That's the only drainage problem that we have. Councilman Horn - The DNR has changed their way of doing things. In the past it was legal for anyone to moor a boat that kept it away from the shoreline unless an ordinance specifically prohibiting that was in effect, I am not aware that we have an ordinance that specifically prohibits that. If that's the case, then I believe anybody can moor on a buoy away from the shoreland. Don Ashworth - My comment was in relation to the ordinance that you had in front of you and passed and has not been approved by the State but I would hope that it would be shortly. Councilwoman Swenson - I noticed that in the Manager's recommendation regarding access which we are not discussing tonight but the suggestion that I have might be that at such time it should be determined to establish a committee of this nature where perhaps this subject proposed by Mrs. Pope can be picked up by them and the resolution of these people with their particular boats can be resolved at the same time. It would seem to me since they have contributed their land to the City as a park that if in fact a committee is established and a regulation is established for some sort of use there that their application should be considered in conjunction with that. They may not have dockage in front of their house but they should perhaps have at least the option of making application for it in a place that may or may not be established. Phyllis Pope - I just wanted to say that I didn't think that ruled out canoe racks. I would like that to be considered because I think that people should be encouraged to use things like this in a way that's going to be detrimental to others, nonpolluting, not noise polluting, not damaging and other cities do regulate canoe racks and boat dockage. I think it's something that really should be looked into not just for Lotus Lake but other lakes as well. Bob Amick - What kind of precipitated this issue? Why it's being brought up now? It's has existed for a number of years and why now? Mayor Hamilton - Maybe because you have people around now that are more concerned than they were ten or twenty years ago. Bob Amick - I think the concept of canoe storage rack has been broached to the Council before. I seem to remember writing a letter in 1980/1981 originally that mentioned that as something that the residents would not be opposed to. It wasn't actively pursued. Council Meeting February , 1983 am Mayor Hamilton - I don't recall seeing a leter but I think it is a good idea and I think the Park and Recreation Commission should look at it and make a recommendation. Councilwoman Swenson - I would just like to clarify that statement that I made before, I made reference to Mrs. Pope's letter. I would like to mention that I was referring to canoes and canoe racks which is what her letter pertains to. Mayor Hamilton - It's a blanket policy that you have got City property that really isn't to be used for docking or mooring of boats as has been the practice in the past several years. That's totally uncontrolled by the City. If a canoe rack, for instance, were to be put on the beach and people allowed to keep canoes there, it would be by permit. Councilman Gevin; - I think what you are seeing on Lotus Lake is a proliferation of density. You have got a lot more homes now than you ever had. You are going to have a lot more when Derrick comes in and I think the fact that it's called Long Lake or it was at one time, it's a long narrow lake, it can't take much more traffic and I think what the Lotus Lake Estates people did with their canoe racks was very good. I think they have gotten around the issue. They are able to enjoy the lake. I much prefer it over motor boats on that lake at this time. If it gets any worse it might even be patrolled. Jim Thompson - I would just like to mention that in the packet that I received, back in 1974 Mr. Roger Byrne was reprimanded for putting his boat on city property so it has been apparently a practice that has been commented on in the past. Mayor Hamilton - A motion would be in order to recommend that no dockage, boat storage or boat mooring shall occur on public property. Don Ashworth - What you are doing is establishing a policy with regards the use of that property. If you would like it in resolution form or in a motion form but basically it is an instruction back to city staff that the property there should be enforced in terms of usage. You are talking about a policy in terms of the usage of city property as you might establish a policy for the usage of Lake Ann. It could be changed on a yearly basis. It does not need to be in an ordinance form. Councilwoman Swenson - By making a specific and positive statement, is this going to affect any future action that we might wish to take? Don Ashworth - You are making a motion in the form of a policy for the use of city property. Councilwoman Swenson - Can we amend it? bon Ashworth - Yes. Mayor Hamilton moved to allow no dockage, no storage or mooring on any public property. Motion seconded by Councilwoman Swenson. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson, Councilmen Geving and Horn. No negative votes. Motion carried. Council Meeting Febr"—)ry 7, 1983 -7- FRONT YARD, SIDE YARD, AND ACCESSORY STRUCTURE SETBACK VARIANCE REQUEST, 6730 LOTUS TRAIL: Mr. Stan Cronister is seeking approval of an 8.75 foot side yard setback variance, a 13 foot front yard setback variance and a two foot accessory structure setback variance to complete construction of an unfinished detached garage. The Building Inspector has inspected the present structure and found that the existing walls are deteriorating and in a collapsing condition. He feels that completion of the garage construction will benefit the structure as well as the property. The City Engineer has reviewed the property from a drainage and utility standpoint and found that the construction poses no problems to the city. The applicant has submitted two roof plans, one showing a pitched roof and one a flat roof. The City Planner has reviewed the property and found there is no other location on the property for a detached garage due to the steep slopes. The :.Board of Adjustments and Appeals reviewed the property and recommended approval of the request with the conditions that gutters be placed on the southern side of the garage. The neighbors to the south expressed concern about a preference for a flat roof since they felt a pitched roof may have a tendency to potentially obstruct their view of the lake. Councilman Geving asked Mr. Cronister if he would be willing to submit a letter recognizing that there is a drainage problem in the area. Mr. Cronister stated he would admit to a drainage problem and that it is his responsibility to put a garage in correctly. Councilman Geving moved to approve the variances requested for front yard, side yard and accessory structure setback for Stan Cronister at 6730 Lotus Trail with the conditions as suggested tonight: 1. Installing gutters on the south side of the garage. 2. Mr. Cronister will furnish to the city a letter acknowledging that there is a drainage problem on that piece of property. Motion seconded by Councilwoman Watson. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson, Councilmen Geving and Horn. No negative votes. Motion carried. GRADING PERMIT REQUEST, 10151 GREAT PLAINS BLVD., ROY TEICH: Mayor Hamilton - It seems as though we have a resident, Mr. Teich, who thinks the laws apply to everybody else except him. Letters have been sent over the years to you from MPCA and the City of Chanhassen and almost virtually every one of them have gone unheeded and unanswered. I think that's very disgusting. The MPCA, over the years, has outlined several steps that Mr. Teich should have taken in dealing with this matter. After about five reprimands he finally did put up a sign saying "No Dumping" and put up a gate. It seems as how we, in the City of Chanhassen, have felt that this problem is severe enough so that something ought to be done about it and because the MPCA doesn't seem to want to prosecute Mr. Teich like they ought to, it looks like the onus is on us to do something with this particular problem. The MPCA apparently feels that there is no hazardous waste in any of the barrels or in any of the material that has been dumped there. Councilwoman Swenson - They went out and opened them up? Mayor Hamilton - They have inspected the property so many times. Craig Mertz - They have made at least six to seven, probably more than that, inspections over the years and the most recent letter that we Council Meeting February - 1983 t received on that specific point stated that they have no evidence that there is any toxic substance in this landfill. Mayor Hamilton - Bill gave us a report on what he felt ought to be done there and by allowing a grading permit. A grading permit, Bill, you are suggesting be allowed simply so that clean fill can be put in and this thing can be covered and finished once and for all. Bill Monk - My recommendation basically is to reduce the scope of the grading plan that has been submitted just to try and seal up the situation as it exists right now. That's the most realistic approach that the city can take and to attempt to stop further erosion which was the original reason given for starting the filling in the first place. It's a bad situation. We have to deal with it. Mayor Hamilton - It's too bad that Mr. Teich can't be made to take everything that's in there out. Councilman Geviny - It would take him years to do this. He is asking for a fill permit to put in 14,550 cubic yards, how much woulo that actually fill? Bill Monk - One cross-section shows that the dump would be leveled out and extended for some distance and the amount of fill to be put in there would be quite extensive. If he was just to seal up the edges around the sides and the dump where it exists right now, you would be talking about 1/4th to 1/3rd of that amount would be necessary. Councilman Gevinq - This is a real long, long gully. I see in this one picture here it's got half a dozen cars in the bottom of it. Bill Monk - One specific site is in question. The site is accessed by a gravel road half way off of Lakota Lane. It is that one site that is in question and the grading plan is submitted for that. The other sites are additional places where debris has been dumped that will have to be taken care of some time in the future but they are not specifically addressed tonight. Councilman Gevin, - I have the impression that the Teich's are not intending to use+14,500 yards of fill but of more construction materials. Is that correct? Bill Monk - Yes, it's called solid waste and as I understand it, it is to be demolition material that was originally approved by the PCA in a letter in 1980 or 1981 but later correspondence from the PCA has basically said that clean fill and earthen material should be used. Councilman Gevinq - Is there any relationship between the timing of this till permit and the possibility of building a home in there? I wanted to raise that -question because of the location of the Dypwick property obviously and that has to be close to that gully. I am surprised that someone would build to look at a dump. Councilwoman Swenson - According to this blueprint, if I am reading this correctly, the fill area is right in the Dypwick property. Council Meeting February 7, 1983 -9- Craig Mertz - Part of it is. Councilwoman Swenson - I guess what really upsets me about this is that half of this city has been making trips to St. Paul. We have been having meetings. The Metropolitan Council is involved, everybody in the state is involved on solid landfill waste and here is a man right in the middle of our own community who has to all appearances willfully gone around and established his own solid .;waste dump. It appears to me as just flagrant disregard for the community:..or the welfare or the health of other people. We have a letter from Mr. Halla. He is obviously disturbed. It is affecting him. I am just appalled. Mayor Hamilton - The MPCA has said twice in their letters that clean earthen material is to be used to cover up and he comes back with a plan to dump more trash on top of it to use that for cover. Councilwoman Watson - I just have a tremendous concern with covering this up. I suspect that covering this up that it will be our children some day who realize that perhaps what was dumped there was, though the PCA didn't think there was anything serious there, it will be our children who will some day deal with the problem that we create by covering this up and pretending that it doesn't exist. It should be cleaned up now rather than be a problem for someone else twenty years from now. Councilman Horn - I can somewhat understand how this whole thing started from the background that I have. We used to have old sand pits that used to be become the dumping grounds back in South Dakota and that's how these things progressed years ago. As far as car bodies; they are used for fill in certain areas. They even dump them in lakes to form reefs for fish. I guess I am concerned, too, that there might be some hazardous deposits in there just because they were there and nobody knew they caused a problem years ago that they were put there. There are a lot of areas like this around and it's really tough to go after all of them at this point. Hopefully, we can take the recommendation from the Pollution Control Agency in looking at these things and they determining that there isn't something hazardous in them. I don't know what are experts are in this case. I have really concerns about this type of thing because I don't think people know enough about them but as far as any malicious intent, I think this practice was started years ago and people used it to fill in waterways and I agree that when technology catches up and you find out what harm can be caused you start to change your way of doing things but to try to go back and undue all the things that were done over the years is quite difficult. Councilman Geving - I think you are right. I think nearly every farm has a ditch or gully where they have thrown cans or bottles for years and years and years and we understand that because it's their property and they are miles from nowhere. I think that's an entirely different problem. Here you have got a fellow who has actually contracted for this fill to be brought in. It isn't his own waste. Councilwoman Swenson - You know there is a public well in Eden Prairie that's southeast of this area. I wish there were some way we could find out certainly what's in those drums. It just frightens me. People come from all over the city to this well to fill up with water. I am just upset. Council Meeting February , 1983 -10- Councilman Horn - There is one recommendation that Mr. Halla made and that was the city do test drills. It would seem like. that would be something we should at least investiage especially if we are considering just t covering everything up. Bill Monk - I did a little checking into that. In a landfill about the only thing you can do is sink a test hole down into the subsurface water to see if it becomes contaminated but anything other than taking a backhoe in there and dig down and check, you are just not going to sink random boring holes and bring the stuff back up to the surface for testing. It just can not be done. David Halla - I think one item that we have to address here very seriously and that the Council should be made aware of, this contamination that's in there nobody knows what's got in there. I am sure that Mr. Teich and Mr. Ingram who are party of the so called pollution, do not know exactly what is in there. I don't think either one of them would be willing to take an oath and guarantee that there are not any PCB's or other carcinogens that could be burried in there. I think the Council should address this issue. In recent years we have all been made aware of what PCB's are and carcinogens. They do not stay in one place. They move. They proliferate through the ground. Once that get's into the ground water there is no stopping of it. An example of it is St. Louis Park, the old creosote plant. Look at the number of wells that are closed down all over that area. People who exposed themselves to cancer acting drugs who never even knew the place existed. I have a large number of employees that work for me in the summer time. They all drink that water. I drink that water out of my own well that's less than 400 feet from this dump site. I didn't ask for that. I was perfectly content to be out there in the country and not have any pollution. Mr. Ingram, who is a large excavating contractor and first of all I don't want you people to feel sorry for him, he has the heavy equipment to clean up his own act. He put the stuff in there. He has got the equipment, let him clean it out at his expense. The only way this is going to be corrected is to get the stuff removed and haul it to a sanitary landfill. I ask the Council this question, why did Mr. Ingram put that stuff in there in the first place? Because he got by doing it for nothing. He didn't have to haul it to a sanitary landfill and pay for it. The point on this is that there is 15 to 20 homes in the area. Once the aquifer's get contaminated, you have got the Shakopee vein, the City of Shakopee takes their water out of it, you have got the Jordan vein, the Jordan vein is already contaminated north of us by the St. Louis Park contamination. So here we have got in our own back yard two people who went ahead and did this without permission, who did it illegally, who did it against the will of the PCA and all the reports that they made for them to clean up their act have been blatantly ignored and continued on. The City Council and the City of Chanhassen also has a legal exposure. It is up to you people now to make the decision what you want to do. Do you want to condone what has been going on and allow him just to merely cover up and camouflage what he has already put in there or do you want to make them people responsible and clean up their act and protect the citizens of the City and protect the water wells, the aquifers that can be contaminated. I don't know what's in there but there are pictures here that show evidence of what's in there. There have been barrels that have been in there that have been looked at but how is the PCA, they didn't go in there and dig that stuff out to see what's concealed underneath, now obviously if Council Meeting February 7, 1983 -11- - you were going to hide something you are going to do a good job of hiding it and I am sure you are not going to leave that barrel with a carcinogens or PCB's or whatever else is in there, sticking up. You are going to get it covered up real quick. How are you going to determine that? You people have asked Mr. Teich to cooperate in the past, you have asked him to give you a tour of his property. Mr. Teich has not done this. Why? Also, you talked about having test holes put in there to determine what was in there, that should be done again. That hasn't been done. Why? What are you going to do with it? It is up to you to make the decision. You have got a moral obligation. You have got a legal exposure here and I think you have to address it and you have to remember that if we don't clean up our acts now we have only got one earth to live on. Earl Ingram - I am the one that hauled the stuff in that dump down there and all it was was tree stumps and trees and pollution was there six, seven times during the day and I even met them out there and any other stuff that was put there, they allowed us 30% demolition. What is demolition? It's wood, it was made from trees and they said that's the only thing that was a binder. Every farmer is allowed to stop his erosion and that is what Roy is doing. I recaptured about 30 to 40 feet of his land already by this. We are not going to jeopardize that dump by putting any chemicals in there. I know better than that. Councilwoman Swenson - Do these barrels constitute demolition? Earl Ingram - I never hauled a barrel in the dump. Only tree stumps and trees which I was entitled to and 30% demolition. Councilwoman Swenson - Where did the barrels come from? Roy Teich - I the only ones that I know of are two 55 gallon drums that have holes completely around them that I used for spraying weeds, a two wheeled sprayer and the summer before last some neighbor kids or whatever gave this thing a push where I store machinery and it winds up down at the bottom. Those are the only two barrels that I am aware of. I never went down to recover them because they were empty. Earl Ingram - Roy has got a letter in his pocket here where this guy threw some poison in the dump and killed some of his cattle. Roy Teich - This goes back to 1968 and we keep cattle in this area and by golly two of them died and I couldn't come up with a reason. I called the veterinary to see what caused it and he suggested that we take one of them to the university and they found it to contain a poison and our family several barrels that Halla Nursery at that time was using that dump like many people in the neighborhood and we found these barrels with their name on and we went to the weed inspector and they determined that these did contain that poison. The Halla's were cooperative in that they notified their insurance to pay for our cattle but it also ended my association with letting them put anything else in that ravine. Maybe we have all got a responsibility and maybe me more than others. I don't deny that it's there. My intent was to halt the erosion from the day that I bought that farm. I saw those ditches get much deeper in a matter of five years so a car body or whatever to halt that erosion and it did that. There is probably bodies down there that are covered. Council Meeting February , 1983 -12- Councilwoman Swenson - How long have you been filling in this valley? Roy Teich - Since 1950. Councilwoman Swenson - It's really unreasonable to assume that there is any possible way that we could go down and find out what is there. Councilman Gevino - I can see in this one picture here, I can count five barrels. I guess the problem is that we may have several sites here and more than one hauler or dumper. While I can see a lot of apparantly debris that may have been hauled in by Mr. Ingram from construction sites or whatever, where is the rest of the stuff coming from? Do you allow other than Mr. Ingram to dump in this gully? Earl Ingram - We have got the gate locked up. Councilman Gevin: - Where do these refrigerators and stoves and that kind of stuff come from? Roy Teich - That's individuals coming in there. Councilman Geving - How do they get in there? i Roy Teich - They by-pass the gate and drive through the plowed field. Councilman Geving - This had to be an accumulation over a long time by many people. Mayor Hamilton - It is the responsibility of the owner if you have a dump and you have a ravine that you want to stop the erosion, certainly the responsibility is yours to keep other people from dumping trash in there such as is evidenced by the pictures. Councilman Gevin; - Have you stopped people from coming in there now? Roy Teich - Absolutely. Councilman Geving - I guess what we need from you is an absolute statement that you hare not going to let anybody ever in there again. Roy Teich - That's one thing I would like to clarify is I have never charged anybody. Councilman Gevin - What I am saying is that you have allowed this to happen over a long long period, since 1950. Roy Teich - I would like to explain, whether it has any merit, things look different now than they did 30 years or 20 years and I don't want to bring individuals in but I just think of an example of a tornado going through our area and taking down Al Klingelhutz' barn and in the process of going over there to help him clean this up you find all this debris. Councilman Geving - We have got a fill permit that you have asked us for, what are you intending to put in this gully? Council Meeting February 7, 1983 -13- Earl Ingram - All we are hauling in there is tree stumps and trees and we were told to put dirt and demolition. If you don't want demolition, just tell us. We worked with the pollution, whatever they tell us we can put in there, that's all we put in there. Why should we jeopardize ourselves? Mayor Hamilton - You are going to work with the City now. I would make a motion that the City Council approve a modified grading permit that; 1. Allows for filling only'as necessary to completely cover the existing debris and produce slopes in the immediate areas that could be stabilized to SCS standards. 2. That only clean earthen materials such as branches, tree stumps, and clean dirt by used as was stated in the 11/1982 letter from MPCA. 3. That Mr. Teich cease all fill operations of any kind on all areas of his property. 4. Mr. Teich come before the Council within 60 to 90 days with a plan for handling the correction of these additional sites. 5. Mr. Teich post a bond to guarantee completion of this job in an amount determined by the City Engineer. 6. That this job be completed prior to .the end of 1983. 7. That signs be erected signifying that there is no dumping allowed. 8. That the gates be expanded to keep out any outsiders from dumping. 9. This to be checked by the City Engineer and Building Inspector on a monthly basis while this whole process is taking place. Councilman Geving - I will second the motion. John Lynch - My question is, what is the Council's comfort level with respect to building on a piece of property, all the borings that were talked about before maybe have been attempted by other state agencies but what is your comfort level with respect to going in there and digging down to what was the original top soil layer that was eroding in 1950 or whenever it started just to ascertain that maybe there was, you the city, has made some reasonable effort to make sure that there is nothing in that, that is potentially or significantly hazardous to future generations. Mr. Halla's point just from the moral standpoint, I recognize that maybe it's economically not feasible to go in there and pull everything out but the satisfaction for the city's standpoint within certain standards, going back 20 years, you go back in and take 10 feet out every 30 feet and go down to where that soil was those many years ago, maybe there is some satisfaction in that. David Halla - We did dump some chemicals that got down and killed his cattle. Now, if any of the Council members know where our property is, those chemicals came out of an insecticide tank that we use to spray our evergreens. We drained the tank on our property and it ran into the culvert and ran through the culvert under the highway into Mr. Teich's property and his cattle drank out of the water and they died. We did not throw those barrels on his property. Those barrels are still on my property being stored. If he says those barrels were thrown on his property, that's a lie. That is just an example to show you what chemicals can do. What guarantees have you got years down the road if something is in there? Mr. Ingram says he didn't put anything in there but Mr. Teich doesn't know how a lot of that stuff got onto his property so he says he doesn't know who it got on his property, how can either one of them Council Meeting February 1, 1983 -14- say that there may or may not be something on there. I think this gentleman's statement that some effort should be made to check what is f in there rather than just cover it up and conceal it because, remember if you conceal it, it's not going to stay put. ` Mayor Hamilton - What is the City's liability. Craig Mertz - I suppose if someones well did turn out to be poisoned that we would be sued. Bill Monk - Some of the washouts that are there now are in excess of 50 feet deep. I have no idea what it looked like in 1950 but in some areas just to be down now to what would have been the soil level would be extremely difficult. If you had to dig it with a backhoe I can imagine the size hole but an attempt could be made and I think if the Council wishes to go that route that basically some proof may be necessary that contamination does actually occur before a site could be ordered to be completely cleaned up. I still don't think that borings is �,oing to achieve anything. It may actually mean digging them up with a backhoe. Councilwoman Swenson - This has been going on.since 1950 and certainly any contamination that's gone in there has already penetrated the soil. Mr. Teich, the concern is not only for anything downstream or going into the Shakopee or Jordan vein, we are finding that potential contamination can go up through almost all the way into Lotus Lake from a landfill along Lyman Blvd. Your well is just a susceptible to this type of thing as is mine which is not to far from yours. I would assume that you are as concerned about this as all of the rest of us are: Isn't there something that we can work out to satisfy all of us that there is in fact nothing there that is going to cause future harm to people. Roy Teich - The things that I see that bring the most concern to you people here are things that have been deposited there prior to 1970 and if I didn't know of a concern to my well that's been brought out to all of our attention more in the last few years. Mayor Hamilton - Mr. Teich what is your suggested solution to cleaning up this problem so that all of us are satisfied with the clean up so that we can be satisfied that there are no barrels in there that we are not aware of that perhaps you are not aware of. Roy Teich - It was brought out before that I didn't cooperate with an inspection. I can't believe that. I tried to cooperate two days after I received citations. I would guess to maybe get anything that's questionable to the bottom of this thing and let it be covered naturally but there again, understanding your people, maybe a practical inspection of some kind that these barrels do not contain PCBs. If there is barrels that were put in there 20 or so years ago that are already covered up I sure wouldn't have any suggestion as to how to inspect those. Earl Ingram - You could really take a test in the ground down below for a rain going through it. If there were any chemicals down there they would have the ground on the flat down at the bottom of the hole would be saturated with it so you could tell right there. All I can say is I �u know what I hauled in there. I hauled in tree stumps and trees and I did haul in 30% demolition but if you don't want demolition we won't haul Council Meeting February 7, 1983 -15- demolition. We were authorized 30%. If you put just plain dirt in there it will just wash out again. Henry Sosin - Just a point of information, I don't know much about the history of this but to my knowledge now demolition which includes cement, electrical wiring, paint which is now considered a toxic substance. It's not clean fill. It is not something that you would want to cover up. Possibly one solution that I might offer, if there are lots of'material in there that is biodegradable that obviously you won't have to remove that, but if an on -site inspection would reveal demolition paint, drums or whatever it may be, rather than clean the whole site maybe if you selectively cleaned before its graded and filled. Mayor Hamilton - Council members have a tenth item to the motion. 10. The City Engineer attempt to take if there is potential possibility materials in the site. any more questions? We added some soil borings to determine of the barrels or any other toxic Councilman Geving - I think I would feel much more comfortable if he does go into that site, that the barrels should be removed before any fill goes in. All the barrels that are visible that are obvious when you look at the pictures should be removed immediately. Bill Monk - One thing that the Council should be aware of is that the pictures were taken over a two year period. You can no longer see barrels. John Lynch - One suggestion, reasonableness should be considered. Having the gentleman post a bond and not know what the bond would cost or how it could be funded, it seems to me to alleviate my potential liability as a taxpayer and the City's own liability, from a monitary standpoint it may be found 20 or 30 years down the road or it may never be found that there is any particular problem with this land but a bond running in perpetuity to at least help off -set, if there is something wrong and something is found the greatest share of the damage is going to have been done but you can bet your bottom dollar that the public outcry is going to demand regardless of whether or not it is practical or feasible that that landfill be excavated and everything be removed. Mayor Hamilton - That was item number five in the motion. I am not sure you could find a bond big enough to cover that if you were contaminating the aquifers. Georgette Sosin - It seems to me that we have an opportunity where this gentleman really has the equipment where he can take care of some of this himself. Since they have the heavy duty machinery they could clean up some of this debris before it's filled. Councilwoman Swenson - Is there a state body other than the EPA to whom we could appeal for advice on this matter. Craig Mertz - The body that is charged with enforcing the landfill rules is the PCA. The solution that the PCA wishes to have put into the file is to close the operation, clean fill over the slopes, stabilize the slopes and see that no one else gets in there. Council Minutes, February , 1983 -16- Mayor Hamilton - Perhaps another item could be added: 11. That all materials other than branches, stumps or clean dirt be removed at Mr. Teich's expense. Councilman Geving - I'll second the amended motion. Mayor Hamilton - Is there further discussion. If not, all in favor of the motion signify by saying aye. Councilwoman Swenson - Aye. Councilman Horn - Aye. Mayor Hamilton - Aye. Councilman Geving - Aye. Mayor Hamilton - Opposed? Councilwoman Watson opposed. Craig Mertz - The City Attorney will work with Bill to get this permit written up and we will be dismissing the criminal action but without prejudice so it could be reinstituted if there is a compliance problem. Councilwoman Swenson - Or if there is contamination in the soils. DYPWICK SUBDIVISION_ AND VARIANCE REQUEST, STATUS REPORT: Craig Mertz discussed the court decision regarding the issuance of building permits in the unsewered areas of the City. Councilwoman Swenson moved to endorse Option #C in the City Attorney's. report of January 25, 1983. To take steps to revise the zoning controls in the unsewered areas by adopting a one year moratorium on residential construction in unsewered areas, adopt stricter requirements for on -site septic systems, and adopt new language more explicitly prohibiting metes and bounds subdivisions. Motion seconded by Councilman Horn. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson, Councilmen Geving and Horn. No negative votes. Motion carried. Mayor Hamilton moved to authorize the City Attorney to settle the Koenke matter and the Dypwick matter on the basis of the stipulation approving the issuance of a building permit, provided that the proposed construction is UBC construction and meets the setback requirements. Motion seconded by Councilman Geving. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson, Councilmen Geving and Horn. No negative votes. Motion carried. DERRICK LAND DEVELOPMENT, STATUS REPORT: Mayor Hamilton - I think all of you have had an opportunity to read the development contract. This has been updated several times. The latest was in October when Russ, Don, and I met with Dave Sellergren who represents Derrick Land Company and we changed quite a bit of the verbage and we were actually in basic agreement with the entire contract except for dockage. So what I would like to do tonight is to get concurrance with the Council that the contract as it reads, with the exception of the dockage, satisfies everybody. We still need to work out with Derrick along with Sellergren, the dockage. We are not in agreement at this time and we are searching for other alternatives to suggest. Councilwoman Watson - Has that escrow account been paid? `Council Meeting Febr Ary 7, 1983 -17- Mayor Hamilton - No. Councilman Geving - Quite frankly, the confidential memo that I received February 3rd, good work Russ. My personal position is that I think we ought to proceed with the proposal as you three have laid it out, except for the dockage. I think there are times when there is need for negotiation and I think the other side has given up a lot. We have not compromised our position, I don't think, in any of this negotiation and it's down now to one last issue and if it's the difference between five and three docks, I am willing to let Tom, Don, and Russ negotiate. I think all the other issues are very much monitary in nature and if we go to trial we would probably lose two or three of the things that we have already gained that they are willing to give us. I am very much in favor of you guys continuing to work and see if you can't settle. As long as we are talking about the 68 units, that's a must. As long as you are talking about park charge credits, I think that's a must. We need that money for the account. The trail easement, I don't care too much about the width of it but I do care about the placement of it and it's down to those five versus three docks. Councilwoman Watson - Will you take basically this and go to them and discuss that and do I assume that then by February 14th you will have discussed this and worked something out? They would have paid their escrow and they will appear on February 14th or have you given up that idea that we are not going to consider it until the escrow amount is pa i d? Mayor Hamilton - As soon as we agree on the dockage they will pay the escrow account. Russell Larson - As you will not from the attachments to my report we did consider three different proposal's. None of which has been submitted. John Lynch - Is the City pursuing Derrick with respect to resolution of the issue, I am curious why? Why not let them proceed at their pace. Mayor Hamilton - I guess probably because discretion is the better part of valor I suppose. There is a solution to this some place and it's been dragging on for years and years. It is costing the City dollars. Staff has used up time daily almost working on the thing. It would be to our benefit. John Lynch - It sounds from what we can hear out here like they are almost succeeding in wearing us down. I can appreciate that. Mayor Hamilton - I would rather not end up in court. We are not on real stable ground on all issues and if we can avoid spending $20,000 or more of city taxpayers money to try and defend this whole case in court, it would probably be to everybodies benefit to not do that. Georgette Sosin - I preceive this as the City getting blackmailed into something that Derrick has wanted for a very long time and that is lake rights and I would feel that it would be a great discredit to the community to capitulate because of being worn down and.because of wanting to get the matter over with because although it doesn't sound like very much, we are talking about three docks versus five, I would like to Council Meeting February i, 1983 -18- remind you that he is meaning to have the right to put five boats at each one of those docks and put it in an area which is totally wrong for any kind of boats or docks. We have all sorts of information that we can contribute to the City that you haven't gotten yet. We have plenty of information that would stand up very strongly in court and I for one would welcome to battle the kind of company that Derrick has been with the kind of very strong environmental backing that we have. The Fish and Wildlife Service are behind us 100%. The University is behind us. We have a rebuttle to the environmental study that he has and we have additional testimony from Greg Mann who is a wetlands consultant who says that anything more than three docks would be very detrimental to the lake so I would be appalled to feel that you would be willing to negotiate in order to terminate this matter, something that's extremely valuable to al 1 of us . Councilman Geving - My comments are based strictly on realistic economical viewpoint from the City and the taxpayers of this City. We have fought this battle over 22' years, maybe longer. I perceive now that the negotiating team has won most of the major points. We have not capitu- lated. We have not arbitrarily given up anything. We are down now to the point where we have the trail. We are going to get the park charges which I have always wanted. We are still going`to get 68 units that I have always wanted and we are down now to the case of three versus five docks and if that means saving the taxpayers of this City $10,000 or $20,000, I am willing to go for it. I am not giving in one point. I am looking at it from a very realistic viewpoint and one, which I am sure, many of my constituents will support. Henry Sosin - I don't know what your agreement is so I don't really know what you think you gained or won but as I understand it the major concerns of the people who live near the Derrick project were first of all 1) housing density, which has not been reduced. Councilman Gevinq - We have reduced it. We are down to 48 lots. They could come in for far more than 48. We have beaten that issue. They started out with many more than 48. We won on the cul-de-sac too. Henry Sosin - His initial plans were that, as I understood it, that none of the lakeshore was to be disturbed in the first place. They were going to have an outlot situation but in the midst of things that somehow got switched around and instead of that protection of the shoreline there are now 11 lots that go to the shoreline. In the long run, from my point of view and I don't know you are talking about 68 well taxes or something? Councilman Gevinq - We are talking about off-line lots. We are not professionals. We have to hire City Attorney's who are professionals. They are in court every day on matters such as this. They win some and they lose some. This City wins far more than they lose. We have to hire City Attorney's and City Engineer's. The City Manager gives us lots of staff input. We have received a lot of that staff input and the word from them is to negotiate at this point. I don't think we have lost one thing. Georqette Sosin - You have lost the whole wetlands. Council Meeting Febr, ry 7, 1983 -19- Councilman Geving - We have not lost anything. Don Ashworth - The City Council selected various options. All of the points regarding how that developed during the last six months has been a long process in putting into writing exactly what each of those sections would state. We have had difficulty with Mr. Derrick on basically getting his agreement to what the conditions the City Council did put in. We are not negotiating away from those. The contract that is back in front of the Council is that exact wordage as set out by the Council in the form of condition's. Mr. Derrick feels a potential impass. He has now submitted to the City his contract as he sees the wordage that should go in there. What I am recommending to this City Council is to put back that contract as we have written it that outlines the conditions as approved by this City Council so that we can at least show potentially in court that this is the contract that we are offering. Not the contract that he is offering. There is a question tonight in terms of dockage. We are not proposing a specific solution tonight. What Tom is saying is that by next week, I am not sure it can be completed by then, we will have something back to the City Council. I don't know if there will be a negotiated position on the dockage. I can't tell you that tonight but every other section in that contract is exactly as approved by this City Council and as you listened to. Jim Thompson - If Mr. Derrick is able to get dockage, doesn't that effectively negate the water surface usage act that we have worked on for five years or more? Mayor Hamilton - It's been approved by the Council but not by the State. Councilman Horn - I have done a lot of work on looking at what happened on Lotus Lake Estates. I think the City was a little overly optimistic on what we could accomplish on that site -because since then I think the thing that has surfaced is the riparian rights that property owners have along the lakeshore and I think if anything has changed, that's the thing that's come to surface in this. You can negotiate to a point and try to get as much as you can but when it comes right down to what the court looks at they look at riparian rights. That's a very difficult thing to fight. That's exactly what we got into trouble on the Lotus Lake Estates thing because it came down to riparian rights and at that point that's when the City had the opportunity to buy that land and could have done that and they could have bought that strip of land along Lotus Lake here, too. That's what it gets down to, the City either buys that property or the homeowner or the developer gets to develop that property and the City can't afford to buy all that property. Jim Thompson - In other words, what I said was, the water surface act really is negated because we can't restrict a person, if we allow Derrick to do it then any person that comes in, in a new development along a lake and unless the City buys that property, can effectively put dockage out. Councilman Horn - By individual lots they can. The thing that the ordinance can control are these beach lot, association kinds of things by regulating to the fact that only the shoreline lots can have the riparian rights you are taking away this 80 and 100 type property owners that would use the dock. Council Meeting February i, 1983 -20- Jim Thompson - Is Mr. Derrick applying for docks for the other lots? Mayor Hamilton - His last position was he wants five docks. Georqette Sosin - I have three things that I want to address. Number 1, you are speaking of riparian rights and I think that confuses everybody because that's a whole other argument talking about Lotus Lake Estates. I don't think that is a very good argument to bring in here for Derrick. Secondly, I think we were talking about Derrick, it was clear to me from what Mr. Larson had said that this is a planned unit development and that those are not individual lots that are sold privately. So that those people that you call now with riparian rights are actually part of a planned unit development and the Council has every right to state how that land is used so you have legal grounds to make recommendations and decisions about the limitation or the use of that land whether it's on the lake or not. The third point that I would like to make and I hope I don't offend anybody by saying this, but I do think that sometimes when we are ill we get more than one opinion from a doctor and I would suggest very strongly that the City get another legal opinion besides, not to take anything away from Mr. Larson, but because I think it's a highly volatile issue in which we have spent much time,,much money, much emotion, much study, and I think it would be worthwhile to have another outside individual come and -tell us whether indeed we have a case that we may lose or whether we actually have very damn good grounds to stand on. Henry Sosin - I remember a few of these meetings that I have attended and one of them about approximately six months or a year ago, the City Council voted, as I remember, unanimously to provide no dockage in this area and at that time, I think Mr. Larson was here, and said you had every legal right to make that kind of requirement. Russell Larson - Henry, I refer you to the exact transcript of a meeting of April 26, T982, and I think that is what you make reference to. We can furnish you with one and that outlines exactly what I advised the Council. That contains my advice to the Council concerning the dockage issue. Mayor Hamilton - Are there any further questions? If not, we will continue to negotiate with Derrick. 1983 LIQUOR LICENSE FEES AND AMEND LIQUOR ORDINANCE: Harry Pauly, Don Kallestad, and Bill McRostie were present. The City Manager recommended that the Council increase liquor license fees (those which are not fixed by state law) by 10%. RESOLUTION #83-04: Councilman Geving, moved the adoption of a resolution increasing the liquor license fees by 5%, except those regulated under state law. Resolution seconded by Councilman Horn. The following voted in favor: Councilwoman Swenson, Councilmen Geving and Horn. Mayor Hamilton and Councilwoman Watson voted no. Motion carried. Mayor Hamilton moved to place on first reading ordinance amendments 2-I and 34-E. Motion seconded by Councilwoman Swenson. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson, Councilmen Geving and Horn. No negative votes. Motion carried. r- CITY COUNCIL MINUTES - FEBRUARY 14, 1983 Mayor Hamilton called the meeting to order with the following_ members present: Councilwomen Swenson and Watson and Councilmen Horn and Geving. The meeting was opened with the Pledge to the Flag. APPROVAL OF AGENDA: Councilwoman Swenson moved to approve the agenda with the following changes: 1. Delete Item 9, City Manager's Position Review. 2. Add a Solid Waste Landfill Site Status Report. 3. Add a Resolution Approving Acquisition of Necessary Easements for the 201 Program. 4. Add Discussion on the Joint Meeting with Eden Prairie/ Chaska regarding Highway 212/5. Motion seconded by Councilman Geving. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson and Councilmen Horn and Geving. No negative votes. Motion carried. GENERAL DISCUSSION MEETING - ALL COMMISSIONS, MAYOR HAMILTON: The following commission/committee members were present: Public Safety Commission - Richard Wing, Candy Takkunen, Brian Erickson and Jack Kreger; Planning Commission - Susan Albee; Environmental Protection Committee - Court MacFarlane; Cable TV Committee - Robert Haak; Park and Recreation Commission - Joe Warneke, Brian Foltz, Jack Mauritz, Richie Hemping; Sheriff's Department - Duane Bicket, Robert VanDenBroeke, and Larry King. Mayor Hamilton delivered his message to commission members pre- sent. In summary, he stressed that communication is very impor- tant. Although it may seem that the Council is unreceptive and uninvolved, everyone should be aware that councilmembers deal with many agencies and groups. The -Council needs input from various resident groups. The Council may not adopt all committee/commission recommendations, but all should feel free to contact councilmembers at any stage of an item under con- sideration. The general thrust of the meeting was solely to insure that each committee/commission were continuing to work toward accomplishing the same goals. This is a yearly type of "meeting recognizing the number of turnovers which may occur on each of the commissions. Mayor Hamilton thanked all members who attended and stated that they are all doing a good job. City Council members reinforced points brought out by the Mayor and additionally thanked each commission (er),for their volunteer efforts to achieve overall community goals." PUBLIC SAFETY REPORTS, RICHARD WING: Mr. Wing presented four reports from the Public Safety Commission: Public Safety Committee Year End Report: This report outlines activities of the commission during the past year, Police Protection Alternatives: This report outlined alter- native forms of police protection which could be considered (._ by the city. Continuation of the contract system with Carver is recommended. The reasons stated for such recom- mendation in the report were costs associated with developing our own department and that the contract system, if properly established, could meet community objectives. City Council Minutes - February 14, 1983 -2- PUBLIC SAFETY REPORTS, RICHARD WING, CONTINUED: Councilman Geving raised questions about increasing police department involvement and public visability. Duane Bicket, Chief Deputy for the Carver County Sheriff's Department was pre- sent and stated that this concept is presently being advanced in several areas. Gambling Ordinance: Mr. Leander Kerber from the American Legion was present stating their desire to see Chanhassen adopt a gambling ordinance as authorized by state law and as presently in effect in most cities surrounding Chanhassen, i.e. bingo, control of amusement devices, pull tabs, etc. He stated that the American Legion makes many civic contributions. No action was taken on this item pending further review by the Public Safety Committee. Fire Relief Status Report, Fritz Coulter: The City Council accepted a report from the Fire Relief Association. In Mr. Coulter's presentation he noted that the fire department had approved a change in their benefit plan, but several technical questions remained unanswered. Action on 'this item was tabled to allow for review by the attorney's office. The City Council reviewed questions raised by Mr. Coulter concerning proposed changes in the Fire Relief Association. The Council reaffirmed their preference for the move to a lump sum benefit arrangement but deferred any action until receipt of legal opinions already in progress. MINUTES: A motion was made by Councilwoman Watson and seconded by Councilman Horn to note the January 18, 1983 Environmental Protection Committee minutes. The following voted in favor: Mayor Hamilton, Councilwomen Watson and Swenson, Councilmen Geving and Horn. No negative votes. Motion carried. DERRICK DEVELOPMMENT CONTRACT, FINAL APPROVAL: A motion was made by Councilman Geving and seconded by Councilwoman Watson to table action on this item until March 7 to allow for consideration of additional information received this week. The following voted in favor: Mayor Hamilton, Councilwomen Watson and Swenson, Councilmen Geving and Horn. No negative votes. Motion carried. LIQUOR ORDINANCE AMENDMENTS (VARIOUS CHANGES REQUIRED UNDER STATE LAW), FINAL READING: On February 7, 1983 the City Council acted to place Ordinances 2-I (regulating intoxicating liquors) and 34-E (regulating non -intoxicating liquors) on first reading. These changes were mandated because of changes in State law. A motion was made by Councilman Horn and seconded by Councilman Geving to approve Ordinance 2-I as presented and that this ordi- nance shall become effective March 1, 1983. The following voted in favor: Mayor Hamilton, Councilwomen Watson and Swenson, Councilmen Geving and Horn. No negative votes. Motion carried. A motion was made by Councilwoman Swenson and seconded by Mayor Hamilton to approve Ordinance 34-E as presented and that this ordinance shall become effective March 1, 1983. The following voted in favor: Mayor Hamilton, Councilwomen Watson and Swenson, Councilmen Geving and Horn. No negative votes. Motion carried. CITY COUNCIL MEETINU - February 14, 1983 -3- APPROVAL OF ACCOUNTS: A motion was made by Mayor Hamilton and seconded by Councilwoman Swenson to approve the bills as presented: Checks 14303 through 14366 totalling $51,279.88 and Checks 18609 through 18699 totalling $202,117.17. In addition, the following three items are also approved for purchase: Doors for Fire Station from Twin City Garage Door Co. - $5,280. High Pressure Washer from Frontier Hardware - $1,529. Ten Ton Porta Power Set from Shielded Sales - $250. The following voted in favor: Mayor Hamilton, Councilwomen Watson and Swenson, Councilmen Geving and Horn. No negative votes. Motion carried. REVISE PENALTY STRUCTURE FOR UTILITY BILLS: The number of per- sons who habitually do not pay their utility bills continues to be of concern. The city does receive full reimbursement of these monies as any bills unpaid at the end of each year are certified to Carver County for collection with property taxes in the following year. In addition to the penalty charge placed on the bill during the course of the year, the city also adds and addi- tional "certification charge". A motion was made by Mayor Hamilton and seconded by Councilman Geving to approve first reading of Ordinances 5-E and 6-E which revises the penalty charge to 10% of the unpaid balance and allows the city to turn off water at residences that are habitual non -payers. The following voted in favor: Mayor Hamilton, i Councilwomen Watson and Swenson, Councilmen Geving and Horn. No negative votes. Motion carried. The City Council requested that the new requirements be publi- cized through the newsletter, newspaper or be printed on the uti- lity bill itself. SOLID WASTE LANDFILL UPDATE: Councilwoman Swenson stated that the Site D in Chanhassen is still under consideration by the Metropolitan Waste Control Commission for a solid waste landfill. She stated that another meeting would be held on this subject on February 16, 1983 in St. Paul. 201 PROGRAM RESOLUTION: A resolution was required by Carver County to finalize Phase III of the grant application to the Minnesota Pollution Control Agency on the 201 Project. RESOLUTION NO 83-05: A motion was made by Councilman Horn and seconded by Councilman Geving to approve a resolution approving the acquisition of necessary easements for Phase III of the 201 Project. The following voted in favor: Mayor Hamilton, Councilwomen Watson and Swenson, Councilmen Geving and Horn. No negative votes. Motion carried. HIGHWAY 212/5 JOINT MEETING WITH EDEN PRAIRIE AND CHASKA: The City Manager stated that he would send out an agenda for this meeting next week. CITY COUNCIL MINUTES - February 14, 1983 -4- HRA MEETING: Mayor Hamilton reminded all council members of the HRA meeting scheduled for February 17th to discuss the Instant Web building restoration and the supermarket study. 1982 BUDGET: The Council asked for a final report on the 1982 budget. Manager Ashworth stated that this could be scheduled for discussion on March 15th along with other financial reports to be presented by DeLaHunt Voto. A motion was made by Councilman Geving and seconded by Councilwoman Watson to adjourn the meeting. The following voted in favor: Mayor Hamilton, Councilwomen Watson and Swenson, Councilmen Geving and Horn. No negative votes. Motion carried. Meeting adjourned at 9:50 p.m. Don Ashworth City Manager REGULAR „HANHASSEN CITY COUNCIL MELTING MARCH 7, 1983 Mayor Hamilton called the meeting to order with the following members present: Councilwomen Swenson and Watson, Councilmen Geving and Horn. Mike Thompson, Planning Commission, Craig Mertz, Bob .Waibel, Bill Monk, Scott Martin, and Don Ashworth were also present. The meeting was opened with the Pledge to the Flag. APPROVAL OF AGENDA: Councilman Horn moved to approve the agenda with the following additions: Statusiof Lake Use Ordinance, M.T.C., and Metro Council. Motion seconded by Councilman Geving. The following voted in fav Mayor Hamilton, CounciIwomen 'Swenson and Watson, Councilmen Geving and Horn No negative votes. Motion carried. CONSENT AGENDA: Mayor Hamilton asked if Council members wished to remove any items from the Consent Agenda. Item 2, Sign Ordinance Variance Request, Lot 1, Block 3,. Chanhassen Lakes Business Park and Item 5, Year End Transfers, were removed from the Consent Agenda to be discussed later in the meeting. Councilwoman Watson moved to approve the following Consent Agenda items pursuant to the City Manager's recommendations: 1. Replat Lots 3,4, and 5, Block 2, Chanhassen Lakes Business Park, Opus Corporation, to two lots. 3. Annual P-District Review. 4. Conditional Use Permit Assignment, Brambilla's Used -Car Sales, 609 Flying Cloud Drive, Ray Stewart. 6. Revise Penalty Structure for Utility Bills, Ordinance Amendment, Final Reading. 7. RESOLUTION #83-06 Allowing County to Issue Bonds for 201 Program Construction. 8. Cable Television Advisory Committee Appointment. Barbara Orlowsky. 9. Adjust 1983 Plumbing Inspection Fees. Motion seconded by Councilman Horn. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson, Councilmen Geving and Horn. No negative votes. Motion carried. PUBLIC HEARING 201 PROGRAM Mayor Hamilton called the hearing to order and requested a motion to continue this hearing to May 2. Councilman Geving moved to continue the hearing on the 201 Program to May 2, 1983. Motion seconded by Councilwoman Watson. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson, Councilmen Geving and Horn. No negative votes. Motion carried. PUBLIC HEARING YEAR IX COMMUNITY DEVELOPMENT BLOCK GRANT FUNDS Mayor Hamilton called the hearing to order. The purpose of this hearing is to consider the use of Year IX CDBG funds. The HRA supported the staff recommendation to allocate Year IX CDBG funds for Senior Citizen Housing Site Acquisition ($40,000) and Program Administration ($1,832). A motion was made by Councilman Horn and seconded by Councilman Geving to close the hearing. The following voted in favor: Mayor Hamilton, �.� Councilwomen Swenson and Watson, Councilmen Geving and Horn. No negative votes. Motion carried. Council Meeting March 7 1983 -2- COMMUNITY DEVELOPMENT BLOCK GRANT FUNDS: Mayor Hamilton moved to authorize staff to make application to use $40,000 of Year IX funds for the Senior Citizen Housing Site Acquisiton and $1,832 for Program Administration. Motion seconded by Councilman Geving. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson, Councilmen Geving and Horn. No negative votes. Motion carried. I MINUTES: Councilman Horn moved to approve the February 14, 1983, Council minutes. Motion seconded by Mayor Hamilton. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson, Councilmen Geving and Horn. No negative votes. Motion carried. Councilman Horn moved to note the February 9, 1983, Planning Commission minutes. Motion seconded by Mayor Hamilton. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson, Councilmen Geving and Horn. No negative votes. Motion carried. DERRICK DEVELOPMENT CONTRACT: Mayor Hamilton - There are several items that need to be handled in regard to this item this evening. First of all, I would like to review the motion that was made April 26th 1982 at our regular Council meeting. You received that motion in your packet, entitled Conditions of Approval, Fox Chase Development. What we did was to go back through the minutes of the Council meeting of April 26th. We used the official transcript that was taken by the Court Reporter so we have a verbatim transcription of the minutes of that evening. We went through and picked out everything that seemed to apply to the motion so what you have before you is the information that was contained in that motion. The reason for doing that is that there were many, many items included going back more than one or two years. I want everyone to have an opportunity to review what actually had been moved to be certain that that is what everybody had intended with that motion. I think you will that in item 3 there was some confusion, certainly on my part, as to the interjection of the attorney's comments about dockage. That is one of those items that may or may not need to be clarified. As I understand it this motion as it is right now is really nothing more than a prelude to writing the development contract. These are the guidelines that we are going to use when the development contract is developed. The motion does not have to be stated exactly word for word because then you go back in the development contract and more specifically define what you intended. Councilman Geving - The note that the attorney interjected, I remember comments as I sat next to Russ, and I think they were only a comment on his part. It lends no credence to the formal motion. He merely made an interjection stating an opinion giving two alternatives and if I were to separate that statement into two parts, "including private docks without prior approval" I think what he meant there was that, that would be part of the development contract. At least that's the first part of what he intended and the second part "on an individual basis, by the City Council, pursuant to the Conditional Use procedures" then he went on to give another alternative which was, you could go ahead and approve this development contract allowing for x number of docks in the development but that the homeowner would have to come before the City Council on an application by application basis. I think that is what interjected here, that in my opinion is meaningless to the entire evenings Council conditions that were summarized and I personally think that they should not have been Council Meeting M. ch 7, 1983 MIS included or should not haze any part of this or make it cloudy for us. would prefer to have it deleted from the official notes. Mayor Hamilton - As normal procedure indicates the only people who make a motion are the Council members and the staff can offer suggestions. There didn't seem to be any place in the minutes that we could find that said we agreed with this. Are there any other comments on that? Dale would like to have that portion not as a part of the official minutes. That's the part that is the note. Are there any other comments? If there are no others, I would like to have a motion accepting the motion. Don Ashworth - To clarify this, to make a motion you set conditions as far as the approval is concerned. Tonight is the first time you have seen those in writing, so your action, in fact, is to confirm that the conditions in front of you represent the conditions as you approved them on April 26th. I am simply stating that you had not previously seen then conditions in a written form from April 26th. Your action this evening is simply one of confirming that this, in fact, does represent the conditions as you passed them on April 26th. Mayor Hamilton moved to approve the April 26, 1982, Council minutes incorporating the Court Reporter's transcript in the matter of: Preliminary Plat Review, 52 Lot Residential Development, Northwest Lotus Lake, Review Conditions of Approval, and/or Consider Amended Development Plan, Derrick Land Development Company, as prepared by Professional Court Reporters, 1720 Midwest Plaza West, Minneapolis. Motion seconded by Councilman Geving. The following voted in favor: Mayor Hamilton, Councilwoman Swenson, Councilmen Geving and Horn. Councilwoman Watson abstained. Motion carried. Don Ashworth - Point of clarification, that motion does strike the sectic under item 3, starting out with th-e word "Note". Mayor Hamilton - Right. The next item I would like to deal with is the development contract. Are there any additional changes or anything you would like to discuss at this time? Since Councilwoman Swenson cannot speak this evening, she will.tell me what items she wants brought up and I will speak for her. Bill, as built plans, her question is, in Section 3.06 (b) where it discusses a complete set of as built plans, in the previous contract in Section 2.09 it said that the as built plans would include a full set of as built mylar reproductable plans. These plans shall include the locations and ties to all sanitary sewer and watermain services as well as gate valve boxes and manholes, should that be include in the definition of as built plans? Bill Monk - Yes, it would clarify it more. Mayor Hamilton - Section 3.06. Completion date and schedule of work. Section (b). The last sentence reads, within 30 days after completion of the improvements the developer shall supply the City with a complete set of as built plans. To that add, as built mylar reproductable plans. The plans shall include the locations and ties to all sanitary sewer and watermain services as well as gate valve boxes and manholes. Councilman Horn - On page 10, I am curious about allowing occupancy before streets have been completed and what our policy has been in the past on that. Council Meeting March 7, 1983 -4- Mayor Hamilton - This is in keeping with what we have done in the past. We did have a great deal of discussion about this particular item because I had felt the streets should be paved prior to allowing occupancy. I did talk with Bill and Don at some length about this but they both felt and it was left up to the Engineer to make the final determination, and he felt that allowing the road to be constructed and then given a period of time to settle is perhaps the best given Chanhassen soils. Don Ashworth - Your question Clark, if you will note on page 6, Section 3.13, subsection b, at the end of that, shows the Roman Numeral I in a circle, Karen did not get in this addition but it answers your question and that is that the previous policy of the City has been to allow for building permits and occupancy permits to be received as long as the gravel road is in and suitable for travel. Ideally, you would like to have it paved the first year but the soils in Chanhassen with the heavy clays, in many cases it is better to allow that to winter, to go over one winter to assure that you do not have trench settlement. We have had that problem in some areas and they changed the policy. A good example is Saratoga. You allowed the streets to winter for one year and we found that to be much better. If you force the developer to pave the first year we could have more problems. This actually provides additional protection for the City. Councilman Horn - Is that what we did in Lotus Lake Estates? Don Ashworth - Unfortunately we paved that right away and we did not allow that to winter. Councilman Geving - We did not accept the streets until the following spring. Councilman Horn - On page 12, Section 7.02, have we typically included in there a provision for the method of reduction of the letter of credit based on performance to date? Don Ashworth - You have in some previous contracts. Staff has really recommended against it because if you allow for a reduction based on the developer completing water lines or sewer lines and he has yet to do the street work and other grading, he could destroy what he has already put in the ground. It is a dangerous practice and the Council did, on some contracts, remove that requirement. In other words they allowed for a reduction. You could get burned on that. The current contract does delete the previous wordage that allowed for that letter of credit to be reduced. That's your decision. Councilman Horn - Those are all the questions I have right now. Everything else in here appears to be very straight forward, I thought, and represented my feelings on what the development contract should be. Councilman Geving - I would like to compliment you Mr. Mayor, for putting together this package. I had several questions, on page 3, it brings forth the involvement of our City Engineer, at the top, under Standards of Construction, and that the developer shall make improvements that exceed or equal to City standards subject to the inspection a,nd approval of the City Engineer and I guess my question, is there the involvement of our City Engineer and staff in the approval process of this development Council Meeting Ma► 1 7, 1983 -5- as it proceeds. Along with the question I might have on the same page, it 3.05 on Staking, Surveying and Inspection where it says, that shall provid for all staking, surveying and resident inspection for the above described improvements, the City will provide for general inspection and shall be notified of all tests to be performed. The question that I have relates to our involvement and the amount of control that the City Engineer would have over this project once we begin it. We had talked before at some length about the possibility that our City Engineer, in fact, would be, I am talking about our City Consulting Engineer, would also be the same engineer that this developer would hire to do this job. I know we talked about that. Is there any discussion about that? I know we can't force a developer to use our consulting engineer. My question is two -fold then, in terms of our consulting engineer and also Bill Monk and what his controls might be when he gets down to such things as the approval of a City Engineer. Mayor Hamilton - If you would look at 3.05, the last sentence, it might clarify it. In addition the City may at the City's discretion and the developers expense have one or more city inspectors inspect the work on a full or part time basis. Bill and I discussed this to make sure he was comfortable with that and he felt that that was reasonable and he would be able to do exactly that. He does not have a problem with it. He knows by the development contract that he can hire somebody to come in and inspect it on a full or part time basis whether it's somebody from Schoen and Madson or another engineering firm that he wants to work with he has the authority to do that. Councilman Geving - I like that. I have a question on item 7.02 and 8.13. It looks to me like those are duplicate. Let's just look at those two. It talks about the 110% letter of credit. Is there some difference in 8.13? Craig Mertz - 8.13 sets the date on which the bond is to be filed and I don't believe there is a mention of a date in which the bond is to be filed in 7.02. 1 don't have any problem with the date for filing the security being in a separate section. There is something else wrong with 8.13 however. I don't think the word "satisfaction" belongs in that second line. I think perhaps all you need is that, before final plat is signed, developer shall deposit the security required by section 7.02. Councilman Geving - I just have one other clarification, on page 7, this involves levied and special assessments against the off-line and on-line units and there seems to be a confusion in my mind since we have already levied one sewer and water unit and one trunk water against the properties. In 4.02 do we really mean to say 52 or do we mean 51 specially benefitted lots? We have already assessed one and we are looking at 51 additional assessments. Is there any clarification required there? Is this clear to you? Bill Monk - I think so. Councilman Geving - I noticed in Derrick's documentation they refer to Tl. I think we are okay. I am just bringing up a minor point, the difference between what has already been assessed and what we are talking about in spreading the payment of deferred special assessments in 4.02. Council Meeting March %, 1983 Craiq Mertz - I am satisfied with the wording in 4.02 as is. Councilman Gevin, - Then I am too. I have no other comments at this time. Councilwoman_ Watson - Page 5, 3.11. I guess I wouldn't be real thrilled to see that lighted with street lights. Could that be something that could wait for the neighborhood to make a decision whether they wanted to be lighted. They are going to be down in a valley where everybody will look over them and they are going to be the only thing to be lite up like that anywhere in that area. Mayor Hamilton - It has been standard that we include street lighting in our developments and I would just be afraid that if it was not included at this time then after homes are built in there the residents come to the City and say, we would like to have street lights in our development and the City is going to have to go through that process to put in street lights. I don't know about the feasibility of putting in the wiring and maybe stubbing them in or something so that that is there aOd leave the actual setting of the poles up to the neighborhood once there are in there. Councilwoman_ Watson - It's.going to be rather pf an oddity in that particular area to have a neighborhood down in`the valley like that so 1ite up. Mayor Hamilton - But, as you all know one of the criticisms we constantly hear is, the development, you go through and you do the roads and you get everything in and then along you come as soon as you finish paving the road you come back and tear it up and put in something else. I would just as soon, if we could avoid those thing, put everything in at one time. Bill Monk - We had been requiring them in the last six contract that we have done. Councilman Gevinq - I think if we are going to have a standard for a development contract, I don't think we should start making exceptions the very first chance we get. Councilwoman Watson - I understand that. Councilman Gevinq - I think that's one thing we have to always be is consistent. Councilman Horn - Are street lights really considered a safety issue? Don Ashworth - They can be by the neighborhood themselves. Most of the petitions you have had come in have been as a result of some type of a problem in that particular neighborhood. Western Hills is probably the best example. The request from Cimarron came in because of window peekers and problems the neighbors felt that street lights provided additional security. Mayor Hamilton - 8.14, page 16. Councilwoman Swenson called to our attention that about in the middle of that paragraph where it reads; all areas distributed, it should be disturbed by the exacavation, and she also mentioned she would like included at the end of that paragraph; as it deems necessary to control erosion at developers expense. Any further comments? What is the difference between a corporate surety bond and a performance bond? Are they essentially the same? Council Meeting Mar, 7, 1983 -7- Craig Mertz - The City would elect to either take the letter of credit or the bond. ICouncilman Horn - In the last paragraph we are talking about the types of boulevard trees that should be included, is this a suggested list or is that the total list? Mayor Hamilton - Those are suggested. Any other comments? Mayor Hamilton moved to direct staff to prepare a resolution dealing with the Fox Chase Development, approving the PRD Zoning and development contract for Fox Chase Development, subject to the following: 1. That the developer meet the conditions as approved this evening. 2. Subject to staff placing into the resolution all factual information reviewed by the Council in approving this development contract. 3. Subject to a determination of the EQB issue. 4. Subject to the City Council review and approval of the resolution to be drawn by staff. Motion seconded by Councilman Geving. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson, Councilmen Geving and Horn. No negative votes. Motion carried. Councilman Horn - I would like clarification of number 3. Mayor Hamilton - There was a petition sent to the EQB last week. We received notification from the EQB today stating that because a petition had been filed the City has some responsibilities to follow and there are some things that we now have to do. One of which would be an environmental worksheet which may lead to an environmental impact statement. However, we have had very short notice to even review that, consequently we don't even know exactly what we have to do. I feel that we need to make this a condition of approval. It seems to me that the EQB's letter is that further approvals by the City are to cease. We don't know exactly what that means. If it means that we can't approve this, what we are doing now, so to make whatever.the EQB wants us to do contingent upon those approvals. Councilman Horn - That would open up the door then for us to make any other changes required by law. Mayor Hamilton - Something that would be required by law we wouldn't really have any choice. Don Ashworth - You just approved as part of it, the development contract that you have in front of you with the changes as they were agreed to this evening. David Sellergren - Which development contract did you have before you? The one that was with your memo? Mayor Hamilton - That's correct. Craig Mertz - The one that's attached to the Mayor's letter of March 2, 1983. Kurt_Lauahin(;house - Has that been transmitted to us or our attorney's? Council Meeting March % 1983 Don Ashworth - Yes, it was. David Sellergren - Of course, I'll enter our objection for the record. Don Ashworth - It was sent last Wednesday. I have an extra one if you would like it. CITY MANAGER'S POSITION REVIEW: The Council reviewed the position classification of the City Manager. Councilwoman Swenson moved to approve a 6% increase retroactive to January 1, 1983. Motion seconded by Councilman Horn. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson, Councilmen Geving and Horn. No negative votes. Motion carried. RESOLUTION IN SUPPORT OF H.F.174: The City Manager recommended the Council pass a resolution in support of H.F. 174 which would not allow dump sites on Agricultural Lands. Al Klingelhutz - I believe this act would eliminate all agricultural land and I understand the way they are thinking at the Metro Council, is because this land is so close to urbanization that it probably would not be considered as agricultural land anymore. It probably would defeat our purpose, I don't know enough about this bill and I haven't read it thoroughly, if this bill was passed because in the urban areas would actually be the only place where dump sites could go. We have all been complaining about all the dump sites being in the eastern part of the County and the County used this exact type of. wordage in their computer to exclude all prime agricultural land in Carver County which made the selection of all the dump sites or landfill sites -picked out in 40% of the eastern part of Carver County. Maybe it would help us, maybe it wouldn't. We are talking about excluding all agricultural land and it would eliminate all the other sites in Carver County. Councilman Gevinq - That was my point, when I read the synopsis put together by the metro people, they didn't indicate anything about the farm land. They talked about the nearness to the urbanization. That seemed to be the point that they were hitting upon. Al Klingelhutz - More percentage of our site is being used for agricultural purposes at the present time than any one of the other sites. Councilman Horn - I think another point, too, that staff did address that issue saying that this was agricultural property but that future use would take it out of that classification after, I believe the year was 1990. I expect that if you looked at the other sites they would not be considered as being taken out of agricultural classification after 1990. I share the same concern that Al is expressing. Al Klingelhutz - The suggestions that are being made now are to make the site half as big as it, 1500 cubic acres of landfill site instead of 3000, that it would be entirely west of County Road 17, that the only entrance to it would be from the southwest corner, that it would not affect the Highway 212117 corridor or the interchange and it is a feeling that there is probably a possibility when this goes before the Metro Council on Thursday afternoon, that we could get an amendment to this .ti Council Meeting Mar 7, 1983 -g- site to get these things done. It all came on me so fast I really haven't had time to -digest it, is it saying that it will be all right if we do these things and we will get the landfill site in Chanhassen or should we just leave it go on, be approved by the Metro Council and take our fight to Carver County after it comes back to the County? Mayor Hamilton - Carver County has got final approval? Al Klingelhutz - Carver County has final approval. Mayor Hamilton - I really honestly feel at this point no matter what we do at Metro they are going to approve it. Al Klingelhutz - I am almost sure the Metro Council is going to approve it. Mayor Hamilton - I think our efforts would be better if we just took a few days off and retrenched and got ready for making a presentation to the County so that we can do a good job there. STATUS OF LAKE USE ORDINANCE: Councilman Horn noted that the Lake Use Ordinance with the changes requested by the DNR had been resubmitted to the DNR for approval and he felt the Council should have reviewed the changes prior to submission as he did not agree with some of the changes the DNR requested. He suggested that a representative from the DNR along with our local legislators meet with the Council to discuss the issues. Craig Mertz stated he would invite Mr. Elverum from the DNR to the March 21st Council meeting. Chuck Dimler and Bob Schmitz will also be invited. LAKE ANN INTERCEPTOR: Bill Monk reported that the Physical Development Committee of the Metropolitan Council did review our response on March 3rd and approved what the City recommended and directed their staff to come back to the affected cities and try and work out a more mutually agreeable solution. SIGN ORDINANCE VARIANCE REQUEST, LOT 1, BLOCK 3, CHANHASSEN LAKES BUSINESS PARK: Opus Corporation is requesting a variance in order to install a temporary free-standing 72 by 4 foot double sided real estate sign on Lot 1, Block 3, Chanhassen Lakes Business Park. The Planning Commission recommended approval conditioned upon: 1. That Opus Corporation be limited to one free-standing off premises temporary real estate sign as contained within this request. 2. That said sign be removed within seven days upon the lease or sale of the property which it is advertising. Councilwoman Watson noted that Opus Corporation which does control most of the land in the park has stipulated, in its covenants, that no more off - site real estate advertising signs are to be erected. Tom Klingelhutz was present seeking approval to erect a temporary off-premi "For Lease" sign to get tenants for his building on Monterey Drive. Scott Martin suggested that the Sign Ordinance be amended at this time to allow off -premise real estate signs located in the same subdivision, until more definitive sign regulations as a part of the overall zoning incil Meeting March 7, 983 -10- and subdivision regulations have been completed. Mayor Hamilton - I think that staff ought to approve these things. I see no reason why the Council needs to see these signs. We have got good staff. We are paying them good money to make these kinds*of decisions and I think they understand what the Council's position is on these things. We are concerned and we want to have some conformance and some continuity to signs but for heaven sakes let people have their signs. They have got to get a sign up to get tenants. Councilman Horn - I think the only concern in this issue is not whether they could be allowed a sign or not, the only concern was whether we would be giving fair competition with the exclusive use of the sign by them. They are in a funny situation here because they are going to be competing with their customers. We are creating a buyer beware situation. Mayor Hamilton - Perhaps there should be one sign in a case this where you can put up one sign and say there is space available and it would cover everybody. Councilman Horn - I like the idea of a sign that anyone in the park can use. Councilwoman Watson - That says there are buildings back here with space available to rent. ' Scott Martin - There is a potential problem with that too. You will recall that Lowell Vetter had his Frontier Meats sign up, the bottom line on that sign that ultimately forced him to take it down was the owner said, the good news is you can put your sign on my directory sign but the bad news is it's going to cost you $300 a month to do it. I think what you may want to do is.just allow signage and limit the size and maybe the number. Councilman Horn moved to table this item to a future meeting. Motion seconded by Councilwoman Watson. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson, Councilman Horn. Councilman Geving voted no. Motion carried. 1982 YEAR END TRANSFERS: RESOLUTION #83-07: Mayor Hamilton moved the adoption of a resolution approving transfers and closings as setforth in the City Treasurer's memorandum dated March 1, 1983. Resolution seconded by Councilman Geving. The following voted in favor: Mayor Hamilton, Councilwomen Swenson and Watson, Councilmen Geving and Horn. No negative votes. Motion carried. Councilman- Geving moved to hold an executive conference to discuss the summons placed against Council members. Motion seconded by Councilman Horn. The following voted in favor: Mayor Hamilton,- Councilwomen Swenson and Watson, Councilmen Geving and Horn. No negative votes. Motion carried. Don Ashworth City Manager 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 64 question earlier as to whether we prefer Plan 'B' or Plan 'A'? MR. NEVEAUX: I think we should have a motion in there that this body direct the developer to proceed with finalizing Plan 'A' before Plan 'B' is to be considered? MR. GEVING: Is that a motion? MR. NEVEAUX: I would make a motion Ithat we consider Plan 'B' as the more preferred of the two plans for this Fox Chase Development. MR. HORN: I second that. MS. SWENSON I think you would be modifying Plan 'B', with the inclusion of the recommendations that we're discussing, those 20 -- MR. HAMILTON: The motion is to review Plan 'B' of the Fox Chase Development PUD, as all 20 conditions that were applied to Plan 'A' were concerned, along.with staff recommendations and Planning Commission recommendations of April 8, 1982. MR. HORN: Second that motion. MR. NEVEAUX: Yes. I think it was pretty well explained in Bob Waibel's report of April 9, where he talks in terms of the City Attorney's letter of April 8, the City . .. -.. r.a-.+.. w. - -._.. _. .. R.--r,..z:. .... .v ..:�.wi.. . a,_ _.�.. _..._. ... ..-. �. .�. .-. .. w•,,+.ctx...w a_.;.�N..�ir.•:�... �.-.-. �....A1. awn+�..u.r+i.irll.iY�t:AiaY:,/l•)8.i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 65 Engineer's Report of April 9, that all 20 conditions of Plan 'A' could also be transferred to Plan 'B'. MR.14AMILTON: Any further discussion? MR. HORN: The rest of the items will be considered on an individual basis? MR. HAMILTON: Yes. If there are no further questions, all those in favor of the / motion, signify by saying 'Aye'. (Unanimous vote.) No. 3 -- going back to 2, Item No. 2: That proposed curvaline,ar street alignment be approved with the condition that it be constructed to standards acceptable to the City Engineer and approved by this Council. Item 3, as it reads, that Lot 3 of Block 2 not have direct access to Pleasant View Road . . . MR. GEVING: Now, could I comment on that? We may have some problems describing how to get to that lot if the plan isn't changed, otherwise you'd have a narrow corridor between Lots 2 and 4 to access to 3. So, how would we propose to do that with the plan that's shown? I've drawn on my sketch -- MR. HAMILTON: One of the ways, we 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 i 19 20 21 22 23 24 25 C-= have discussed this before with Mr. Sellergren, is that that corner can be changed. If I could circumvent your question for just a second to say, with '3', I'd like to see that Lots 1, 2 and 3 of Block 2 not have direct access to Pleasant View Road, which means that none of those lots will have direct access to Pleasant View Road, and that those.lots would have to be redrawn. MR. GEVING: I like your suggestion. MR. HAMILTON: There would be no access to any of those lots. MR. NEVEAUX: Direct driveway access. They're always going to front or pass up to Pleasant View, but as far as driveways are concerned. MS. SWENSON: There's no access to Pleasant View except the -- MR. GEVING: No. Like Tom said, that Lots 1, 2 and 3 of Block 2 not have direct access to Pleasant View Road. (Inaudible discussion.) Okay. Let's go across the road. Remember now, when we get to it, when we get there, one of the Planning Commission w.. s.. .» ,.1=wt. ...r6.•1. '.!r.. a•:.ti.: a .. , ..._ .- .. �-.4... .... .._t._ . .. .. c r. ... .. �.v .....�x�:..-. r: ..-:i..r-'.:.. .. _.- ....,�.► ���: �ic.�Sa.�S.s�w+nr�:r„++n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 x 17 18 19 20 21 22 23 24 25 1 67 recommendations will be to move that road, isn't that true? I thought all along, and I'm sorry that I'm bringing this up now, that all along, we had previously talked about moving that road all the way to the eastern property line of this development, which would almost negate that Lot, Block 1. But, if we go with this plan, that lot will be there, and, you know, that's a very steep hill. (Inaudible.) I would go along with adding Lot 1, Block 1. MS. SWENSON: I'm glad you mentioned that. We are still looking at a 60-foot leveling off area before it gets to Pleasant View. (Inauible discussion.) MR. HORN: I believe we could specify that no lots have access onto Pleasant View Road other than through Fox Path to cover any future issues that -- MR. SELLERGREN: Mr. Mayor, may I comment as to the last lot that you just added, which is Lot 1, Block 1. As I think most of you probably are aware, I think there's already a driveway there and a home. MR. GEVING: I was under the impression 68 1 that you're not going to get any kind of an access 2 from the Osgoods. I've always heard that. 3 MR.-SELLERGREN: The Osgood driveway is 4 on our land versus the other way around. But, it 5 is our intention to use that driveway that there,is 6 now. We are not adding anything new to the traffic. 7 MR. NEVEAUX: You would be using the one 8 that Osgoods use now. 9 MR. SELLERGREN: Correct. 10 MR. NEVEAUX: Which is, in effect, on 11 your property? 12 MR. SELLERGREN: Correct. MR. NEVEAUX: It would be pretty 14 difficult to take it away from them. 15 MR. GEVING: I didn't realize that. 16 This is new information. 17 MR. SELLERGREN: No. It isn't. We 18 talked about this several times. 19 MR, GEVING: Well, let me say this, 20 then we've got another problem with the Osgoods. 21 We still have another problem with the Osgoods. 22 MR. LAUGHINGHOUSE: Mr. Geving, 23 the Osgoods have an easement over this land, 24 over the land that is in Fox Chase, a small corner 25 of it, enough for a driveway. That cannot be 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a radicated by us. We propose only to use that same land for an access. -.-It would be joint use, that we have a right to in a sense that we still own the land, but they have a special easement access for driveway purposes. So, the only change would be instead of one family using the driveway, it would be two families, so it would be three trips, four trips a day. MS. SWENSON: Well, that's not an additional access to Pleasant View. MR. HAMILTON: Any comments? MR. MONK: I would almost word the condition that the Council, if they're inclined to go that way, that no additional accesses will be put up on Pleasant View on any lots created with Fox Chase, giving them the latitude to use that if it does work out with the Osgoods, but hopefully taking the City out of any future court case that might arise over the use of that driveway. MR. NEVEAUX: The only access from the development then is Fox Path. MR. MONK: The only new access. MR. NEVEAUX: The only new access. w .., r�...F:_ ...i:_ r+.. �. .. s... - .: ... +, .,. � ___ � �.. .'.c��.. _.._�. .. .a-:..�i . _ ._s _.. v....w:..-.�.-� e+ss .t �--.. .:'ri �i-:..; t...�+.:w-'v14.w+rss•:s:�aa-�vw'-..�..`So+�a./'::-i:i�cls U1 That the only direct access on Pleasant View Road 2 would be the newly platted Fox Path Road,Cil�d'-� 3 MR. HAMILTON: Does that satisfy 4 everyone? Before Plan 'B' be approved with the 5 additional previous conditions placed by the City 6 Council. 7 Planning Commission Recommendation of 8 April 8, 1982, that access to Fox Path be moved 9 to the easterly property line. That is not the 10 case. That's not the plan you're seeing, so that 11 _ one would not be included. 12 MR. NEVEAUX: That was, I think, some 13 of the discussion that we were just getting into 14 when the motion came to discontinue discussion on 15 Plan W , and tell the developer to go back 16 and get Plan 'A' done. So, we never really got, as 17 I remember, we haven't got around to making that. 18 MR. HAMILTON: No. 2 is proposed road 19 width be decreased from 36 feet to 32 feet. 20 That's already 28 feet. T" 21 No. 3, that no lots have direct access 22 on Pleasant View Road. That has been taken care 23 of. 24 The developer dedicate a right of way of 25 50 feet in width between Lots 26 and 27, . _ _ .. .. _..........v i'... .. _. _: .�. �..r+.- ._.v.i�Y sx._.-t.•K♦LG:'..f�:+K.'o._....w wctataL\'+. d:v.a/X'�bV 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 71 Block 1, for possible future secondary access. MR. GEVING: Well, I've got a note here, the developer does not agree with that. MS. SWENSON: This is something, though, that is not new. MR. HAMILTON: Well, we discussed it previously, and we discussed all kinds of things. If I remember correctly, I think the westerly egress from there, it would be a much better connection to connect up with Carver Beach. MS. SWENSON: Well, yeah, but you can hook it up between Lots 26 and 27 also, if it's necessary, and we have already discussed and approved a permanent cul-de-sac at the end of Fox Path. MR. NEVEAUX: Well, the permanent cul- de-sac doesn't extend to the right of way, up to the western property line. MR. GEVING: I really don't think that this is applicable any longer. Even if it were, if you looked at the gradation of that land between Lots 26 and 27, it's extremely steep. I don't know. What would you say, Bill, in terms of the incline? That has to be indicative, you know. - � .. ..._. .._ .r.; . c. ._.�. .. .. .. -1: -tc -<.. a'!+i4-4=,�flor::4virils 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 • 19 20 21 22 23 24 25 72 MR. MONK: It really doesn't go anywhere in Carver Beach -- MS. SWENSON: It goes into Huron, doesn't it? MR. MONK: No. It goes down to Deerwood, that gravel road. (Inaudible discussion.) MR. GEVING: I guess I don't see much use in having No. 4. MR. HAMILTON: Actually, the concept plan that was shown by Mr. Getts indicates a much clearer traffic pattern than -- MR. GEVING: Well, you got to remember one thing, too, Tom, that since we talked about this almost a year ago, way back about 172, we have the new development to the west that never was a (_ proposition, so I can see where No. 4 was an issue l at one time. I'd like to throw out No. 4. (Agreed by all.) MR. HAMILTON: No. 5, that the Conservation Easement be maintained and that within that specific Conservation Easement, there will be no alteration of lakeshore or installation of structures, including private docks. MR. LARSON: May I suggest something? Adding to read: "Including private docks 1 2 3 4 5 6 7 8 9 \0 11 �12 13 14 15 16 17 18 19 20 21 22 23 24 25 73 without prior approval therefor, on an individual basis, by the City Council, pursuant to the Conditional Use procedures of Ordinance 47." MR. HAMILTON: Would you read that again? MR. LARSON: "Including private docks, without prior approval therefor, on an individual lot basis by the City Council pursuant to the Conditional ..Use Procedures of Ordinance 47 " MR. GEVING: And will be spel ed out in the Development Contract. MR. HAMILTON: Item 6, that the developer be required to dedicate a trail easement originating on the southerly line of the plat within the utility easement, commencing at the southerly edge of the property and lying northerly to the south line of Lot 12, Block 1, and lying westerly at that point to its point of intersection of Fox Path, and then continuing northerly with the right of way of Fox Path with the intersection of Pleasant View Road. MR. HORN: Is that in concurrence with the Park and Recreation Commission? MR. WAIBEL: The Park Board Recommendation, they've left silent as far as ._ .-. ... ....... ...� __ 4 .. .. -: �• .e.. _. _..- <>+.-...... � .�.: _..._.�,........sa...w.Z^-.......sk.4.-.... _ ...--.�-'Yi:«'_:t. .��c�-:s4:++t:ss�.sr.. _.�. v'-.yes 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 74 when it came to the Park Board, as to where the holding pond would be (sic). They had asked that they be able td7look at that when it's under construction and see how it looks then. The Staff felt that that could not be done. Development contract before the plat is filed and construction begins. MR. HORN: Was that taken back to them? MR. WAIBEL: It was taken back to them, and they had asked that they be able to do it when construction commenced. (Inaudible discussion.) MR. WAIBEL: I notified Frank Callahan of that particular position of Staff. MR. HORN: When was that? MR. WAIBEL: I think it was last year when we were on the discussions of Plan W. This same issue came up as part of that plan amendmen process a year ago. MR. GEVING: And we talked, though, we talked that there would be the possibility of a sidewalk on the east side of that road because of that trail, is that true? Do you remember any conversation about that? MR. MONK: Comments were made but no 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 75 motion or requirement was ever made whether it was to be concrete or if it was to be -- .a*: MR. GEVING: Well, otherwise, the kids are going to be walking on somebody's front yard or in the street. MR. MONK: That was discussed, but never conditioned. MR. GEVING: Some of it would be hiking, biking? MS. SWENSON: Tom, when we were talking about a 36-foot width road, this was not a large an issue than the 28 foot. I can see a considerable, particularly if they insist on having that road go down to Carver Beach and bring up more traffic, I can see a potential danger there. MR. GEVING: What about the possibility, and I'm just speaking outloud here, of widening the road and including the striping like we did on Curver Drive, or whatever it's called, of about six or eight feet or whatever it is, Bill, that striping for pathways where the children walk to school, go to school, do you know what the width of that is? MR. MONK: Well, Cooper Drive is an exceptionally wide street, but that would be- one 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 76 possibility. The other would be to actually construct a six-foot wide bituminous surface behind the curb for biking. That's commonly done, you know, in place of concrete. The other is to put a woodchip path, depending on the use of the proposed path going in there. But, any type of construction would be possible now, with our roads, the right of way, just to do whatever the Council wants. MR. NEVEAUX: I think we ought to get them off the streets. MR. GEVING: I agree. MR. HORN: I think we ought to define a six-foot trail, bituminous path along there. It would be more expensive for the developer if we insisted upon a 36-foot road than a 28-foot road with a six foot path for that section.: ;, MR. GEVING: You're running it from Lot 12 north to Pleasant View Road on the easterly side. MS. SWENSON: This also is going to restrict any parking on the street. MR. ASHWORTH: The conditions, as you go further into the 20, one of those was a ..� �.x t . �. �... .v ..eVv- ".`-�; 4...�. .-. - _. ...., a. ... .. _ _ � _ ._. o. .. .. .: _ -��.., ..n.w.:ti-, a� ., .. s+•.:r.:a�.K: N�e�:.:----r..�.�w�..Y=r.:�.;c.n...:aLr.T.+.?f+=4t��.s�'1�3.�W l 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 77 a condition regarding the trail, one of the 20 conditions. Further, that it is the advantage of the developer to have an eight foot trail through the conservation area and whether such be within this conservation area or partially adjacent throughout, the developer has agreed to grade and install woodchips for the trail, in accordance with the recommendation of the Park and Recreation Commission, as a part of their overall grading plan. So, as I read this, those 20 conditions made earlier includes an eight -foot trail to be installed. MR. NEVEAUX: Woodchip you're talking about down there from Lot 12 down to the Conservation Easement. MR. GEVING: I think a woodchip trail would be out of context. If you put that in there from Lot 12 north, I don't think that would be very permanent. One good spring, and the wind would have those chips all over the place. MR. ASHWORTH: I just wanted you to be aware of that. MR. GEVING: I think the chips probably would be more applied to the southern part 78 1 of it, the real trail, along the shore. 2 MR. HORN: And if you went along the 3 "IL - property lines up to the road, if not next to the 4 street. 5 MR. GEVING: Oh no just down to Lot 12. 6 What item was that? 7 MR. HAMILTON: Item No. 7. The trail 8 of woodchips would be just through the conservation 9 area. 10 MR. ASHWORTH: It was not defined, 11 that section started out saying the Park and 12 Recreation Commission had not defined that. 13 MR. HORN: Well, I think if we define 14 the bituminous system up to Pleasant View Road, 15 that in some way the Park and Recreation would 16 say some other alternative would certainly be 17 less expensive -- 18 MR. HAMILTON: For No. 6, that the 19 Planning Commission recommendations would be a 20 six-foot path, it would seem like a six-foot 21 bituminous path would be adequate, six-foot bituminous path 22 Lot 12 north to Pleasant View Road. 23 And Condition No. 7, from the July 17, 24 1980, would address the conservation area, which 25 would be an eight -foot woodchip trail through the VsV,� .h•ea a. �.. �•F VYv ..a_V VR.t a.Wl f.. ��.!--:al�.s+��iN�iei'.�iKyayR•l3Ye 79 1 conservation area. 2 MR. GEVING: From, we should probably 3 a� .specify' that f rom Lot 12 through the develop- 4 ment. 5 MR, HAMILTON: That would be from the 6 southerly line of the plat -within the utility 7 easement, essentially that's the southerly 8 the edge ofproperty, g going northerly to the south 9 line of Lot 12. 10 MR. GEVING: That's correct. 11 MR. SELLERGREN: Mr. Mayor, may I 12 comment on those conditions, or do you want to 13 finish? 14 MR. HAMILTON: Let us finish. 15 MS. SWENSON: Ending at Lot 12 and 16 beginning at the Conservation Easement. �17 MR. HAMILTON: Originating at the 18 southerly line of the plat within the utility 19 easement at the southerly edge of the property, 20 and lying northerly to the south line of Lot 12. 21 No. 7, the outlot may be incorporated 22 into the individual property as shown in Plan S, . 23 No. 8, that the permanent cul-de-sac 24 be constructed on the west end of Fox Path. 25 That's already in there. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 80 MR. NEVEAUX: Permanent cul-de-sac with a retention of the right of way, is the way the attorney put it. MR. HAMILTON: That Plan 'B' not be approved until the recommendation of the Planning Commission -- MS, SWENSON: You're including 18' with the retention of the easement? MR. HAMILTON: 18' was already taken care of in August, I believe it was, with a permanent cul-de-sac with the right of way to the north -- M. SWENSON: Well, I guess this needs to be reiterated, now that we're talking about Plan 'B'. I'm just trying to cover all the bases. I mean, that was Plan W. MR. NEVEAUX: We accepted all those conditions of Plan 'A'. MR. HAMILTON: Right. MS. SWENSON: I can't find, Gentlemen, in the 20 sections here or the 20 conditions of July 14th, the preliminary plat conditions, any reference to the requirement that we had agreed upon at an earlier time, to the architectural and engineering okay, if -you will, of building plans. .._ ..; d.�...t.�. mac. ,-_ s.=�� t-.-.si• ..�,.._ .. _..: �i.-. _..._ _. ., - ��_. ..,..._ .w_z .... :....,.. ....»�.+wy.�-, '.l-+>..:.rar�.:.:Y:X�s� ter. .,a.. r.:+d+cr"•. ..�acr=naR..,'i'r :riY47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 81 MR. MONK: Condition 13. MR. ASHWORTH: You're looking at:the July 14th report. Those are simply comments to the additional 20 conditions. It's an explanation of those 20 conditions. MS. SWENSON: Very good. MR. NEVEAUX: And they say architect or city engineer. MR. HORN: So, in effect, we have included as defined in greater detail, Conditions 5 and 6 of the recommendations recommended by the Planning Commission. The rest have been addressed. MR. GEVING: Yes. Only 5 and 6. MR. ASHWORTH: You earlier agreed to define Item 7, as well. MS. SWENSON: What about No. 9? MR. HAMILTON: No. 9, that Plan 'H' not be approved until the recommendations of the Planning Commission are incorporated into the Development Plan. That goes without saying -- MS. SWENSON: Have we eliminated some of them? MR. HAMILTON: Only because -- I haven't eliminated anything. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 t:- 82 MS. SWENSON: No. Not you, personally. MR. HAMILTON: Many of these have already been changed simply because the Council moved on them after the Planning Commission had already made their recommendation, which we acted on. MS. SWENSON: I just wanted to eliminate any confusion with regard to the easement between 26 and 27, which is taken out, MR. HORN: Actually 09' is saying all of the above. MR. GEVING: It does. It does say that. I think that was their intention. MR. HAMILTON: Would you like to go through all 20, the conditions of April 7, 1980? I did have a couple of questions to ask. For instance, No. 12, would extra precautions be taken so that removal of existing vegetation be kept to a minimum during construction? I would like to have Bill or. the Staff spell out exactly what extra precautions would mean. Extra precautions doesn't mean anything to me if I'm the developer -- it would give the developer some direction (Inaudible). MR. MONK: I think that if you want ^. --��. �. _. .w: a,. ... _. _ - .."s:vi.r �. _ ..s.......,...:•.r..;:v.,, ... _i}..,...:.,r. ..: sr��ca.asa..s. �<�..�Ga� 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 83 me to give it now, I can give it verbally. What we can do is part of the development contract,actually get into that in some detail and probably connect an actual grading plan that is referenced within that development contract, when that comes back to the Council. That would be a part of the plan and that would spell out the extra precautions. Because I think that the extra precautions do mean monetary things also, not to be spelled out in a development contract, to make sure things are done. MR. ASHWORTH: So, would you like that modified -- shall I, 'Which shall be included in the development contract"? MR. HAMILTON: Yes. No. 14, that the applicant be required to post sufficient escrow to ensure the degree of engineering and inspections carried out at the direction . . . .lust so it's clear to everybody what that amount should be, the Riley Purgatory Creek said they need to put up $20,000, I think, and we require -- MR. MONK: Past actions said 110 percent of actual construction costs. .. ..... - . -... _ . - -. .. .-.v._ .�, ..... _«..r ... •..e-_era..-.+; .�....�r—� �.. _ - s.._+ar«a.�Y., .sK :s�+.it�.:.:.it�asarN.y 1 2 3 4 5 6 7 8 9 10 1.1. 12 ].3 14 15 16 17 18 19 20 21 22 23 24 25 84 MR. HAMILTON: And a letter of credit. 110 percent of the construction costs. That should probably be added to that. Would that be appropriate, Don, to put $20,000 that the Watershed District is requiring and 110 percent of total construction costs and with the letter of credit? MR. LARSON: That's just a matter of, we do that customarily in development contracts uniformly, without any Council approval or action on it. (Inaudible discussion.) MR. ASHWORTH: So, that it's clear for the record then, these 20 conditions, that would be, if any of those were previously modified by the Council, they would be the street widths, the water main issue, et cetera, et cetera, these conditions would change by the specific action that has previously been taken by the Council. MR. GEVING: Well then, what we're really talking about are the original 20 conditions of July. 7, 1980, the action of our August loth meeting, which we set the cul-de-sac, the street width, the water looping, -- and tonight's action? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 85 MR. LARSON: There were other actions, too, on other dates. .anl_ MR. HORN: And the Planning Commission recommendations Nos. 5 and 6, as modified. MR. GEVING: Well, that's what I'm referring to, Planning Commission Recommendations Nos. 5 and 6. MR. ASHWORTH: I think you've specified all of them. MR. GEVING: Including the Engineer's Report of, I believe it was April 8 or 9th, April 8th, I'm referring to April 8th from Bob Waibel, City Planner, I guess we could just call it Staff Recommendations and Planning Commission Recommendations. What else is there? MR. HAMILTON: Nothing. Is that in the form of a motion? MR. GEVING: We've already moved on one item, and that was a motion to approve the planned unit. So then, I will make the l� motion to approve the preliminary plat for the Fox Chase Development PUD, is it? MR. LARSON: You had moved to approve 86 1 the amended final development plan noted as t 2 Submission Packet No.: 2, we'll mark that Exhibit 'A', �. 3 preliminary plat designated as Exhibit 'A', City 4 Council Meeting 4/26/82, subject to the move to 5 approve it, Final Development Plan and 6 Preliminary Plat, subject to the conditions, 7 certain conditions. f MR. GEVING: Conditions of, the 20 �9 conditions of April 7, 1980, and as modified_ 10 Subsequently, including the Staff and Planning 11 Commission Recommendations shown on the April 9, 12 1982 letter from Bob Waibel, the City Planner, to i the Mayor of the City Council, and the Minutes of 14 the City Council Meeting dated August 10, 1981, and 15r I believe that's it. 16 �f MR. LARSON: And there is incorporated 17 1 within that motion a specific finding of 181 Section 14.05 (5)(c) of Ordinance 47. 19' MS. SWENSON: Does this include the 20 Planning Commission Recommendations? 21 MR. GEVING: Yes, Pat. I included that 22 in as April 9, 1982, Staff and Planning 23 Commission -- 24 MR. ASHWORTH: One modification, 25 Councilman Geving, that is, that we referred to 1 2 3 4 5 6 7 8 9 10 11 12 ].3 14 15 16 17 18 19 20 21 22 23 24 25 87 April 7th, it was actually July 21st, 1980. MR. GEVING: July 21, 1980. MR, ASHWORTH: On that date, you had approved or had combined the conditions that were made for April 7, July 9 and July 17, and incorporated in July 7, incorporated those in and created the 20 conditions of July 21. MR. NEVEAUX: Second. MR. HAMILTON: Any further discussion? MR. GETTS: Mr. Mayor, I have one very brief comment. MR. HAMILTON: Just one very brief comment. MR. GETTS: I was just going to ask that since there's been so much controversy, and since Councilman Geving's motion incorporates, by my count, three documents, two years apart, and oral comments tonight, you table it::for 30 days, or at least until the next meeting, so that a written resolution could be prepared by Staff incorporating all of this, so that at least you'd save yourself the problem in the future of worrying about what you approved. MR. ASHWORTH: Any approval given by the City Council is not official until you have 1 88 1 reviewed tonight's minutes, so as far as this action, 2 if there is any ambiguity, it would be your 3 "1: responsibility to catch those when the minutes come ou . 4 They would not be, by your action 5 tonight, automatically incorporated. 6 MR. HAMILTON: Any further discussion? / 7 If not, all those in favor of the / 8 motion signify b saying 'Aye'. 9 Y Y Y 9 9 (Unanimous vote.) 10 Motion carries. 11 MR. SELLERGREN: Mr. Mayor, may I 12 make a comment? 13 MR. HAMILTON: Yes. 14 MR. SELLERGREN: You've imposed a lot 15 of new conditions, modified conditions, I should 16 say. We will be examining very closely the 17 various conditions imposed and making a decision 18 as to Plan 'A' or Plan 'B'. Thank you. 19 20 21 22 23 24 41 f t SECTION II Status Report ndment Request Derrick to 0 DO m m 'SA- ' i � � ■ ■ram - ■�■ ■■ Status - Final Development Plan Amendment Request Fox Chase Addition, Derrick After receiving final development plan approval, and recognizing that various conditions must be met within a one year period, Mr. Derrick approached the City asking that this final development plan be amended. His contention was that although final development plan approval had been given, that changes proposed by himself would be beneficial to both the City as well as himself and, therefore, it made no sense to seek approvals from Soil Conservation Service, DNR, Watershed District, etc. if an amended plan would be considered by the Council. I have not asked the City Attorney's office or City Planner to verify their calendars as to when Mr. Derrick's initial request may have occurred, but it is generally believed that such was approximately the first of the year. Delays in his formalizing the request for a plan amendment primarily related to questions concerning whether the City would consider such, procedures that would have to be followed if an amendment were to be considered, and what affects this amendment would have on the original approval. In any case, an initial review did occur at the Planning Commission level wherein the attorney verbally stated that his preliminary review showed that a new public hearing would be required. Mr. Derrick withdrew his request for further Planning Commission review. Mr. Derrick then submitted a letter to the City Council asking the City Council to amend the final development plan. This item was considered by the Council in April at which time the Council noted that they would not waive the public hearing requirements and that they would request that the Planning Commission carryout such a hearing. Significant discussion occurred as to whether all potential issues would be considered in the public hearing process or whether such public hearing should only address changes in the plan in comparison the approved plan of July 21, 1980. The Planning Commission did hold a public hearing on April 22, 1981. A copy of the minutes of that public hearing are attached. The minutes appear to reflect a Planning Commission recommendation of denial with specific conditions. However, at the last City Council Meeting, Mr. Michael Thompson did state that it was his belief that the motion reflected an overall denial unless the various conditions were met. In essence, he stated that the motion was to be considered a recommendation of approval if all of the conditions noted were met. On May 4, the City Council considered the recommendation of the Planning Commission and additionally considered public comments. As report #3, submitted by Kathleen Schwartz was of significant length and not received for comments prior to this meeting, theCouhcil acted to table action on this item to June 1, 1981. Should the City Council desire to proceed with considering approving an amended final development plan for Fox Chase, the following issues need to be resolved and incorporated as a part of the final development plan amendment approval. I would recommend that the Council follows the procedures set forth in this section in carrying out the review of this item. Additionally, a summary recommendation from this office of the issues to be resolved is included at the end of this report. Bring the plans as enclosed in your last packet. 1. Number of Lots Developer's Reauest dated April 15, 1981: There has been a great deal of discussion of the number of lots to be finally platted. We have never conceded that the City has the right unilaterally to reduce the number of lots in the plat below that which is permitted in single family residential zoning. This, we felt, was done arbitrarily when the plat was approved at the 21 July 1980 Council Meeting and the number of lots was reduced from 54 to 52. Not incidentally, no consideration seemed to have been given to the 69 lot units assessments which are pending. All of the above notwithstanding and in the spirit of cooperation in bringing this protracted platting matter to a satisfactory close, we are prepared to finally plat 52 lots as shown on the enclosed proposed plat, if we can come to agreement on the other items discussed herein. Planner's Comments: (April 17, 1981 Report; Also see May 2, 1981 Report, Section III): At any time throughout the review of the subject proposal this office does not recall any of the plans showing more than 55 units. It was presumed that the applicant had calculated the pending 69 unit assessment into his land use development proposals and chose to follow a market that would serve lower density, larger lot development. This is understandably qualifiable as to when the applicant made his initial assessment search on the property. In determining the land use density .for developments, and especially in the case of Planned Residential Development Districts, there is the need to make certain judgemental decisions including environmental concerns, and reasonable density standard. The Planning Commission specifically mentioning environmental constraints of the subject property, did, based upon the information available to them, find the proposal acceptable at 49 and 52 lots respectably. At this time, this office feels that the Final Development Density relative to the 69 units assessed is not germane to the Planning Commission consideration and it is recommended that the Planning Commission not act to change the gross density established by the City Council until so instructed by the Council. 2. Street Width Developer's Recjuest dated April 15, 1981: This matter was discussed in our letter of 25 March 1981 to Don Ashworth. If this street is constructed at 36' width it will be one of only three streets in the City of Chanhassen so constructed. REQUEST: Council reduce the street width to 32 feet. Schoell & Madson's Comments dated Mav 13, 1981: Concerning the matter of a secondary access, I have the following comments. This applies to the issue of either an emergency access or a permanent access. I have expressed this view in the past, and feel strongly about it as relates to the typical subdivision. I do not believe there to be a great safety need to have a secondary access. The experiences that the City has had where fallen trees have blocked the road are unique to areas like Carver Beach. The normal residential page -2- subdivision does not have great potential for storms blowing trees over the road and thus blocking emergency vehicles. If it did occur, the emergency vehicle (in a typical street section) could simply drive on the lawns around the tree. Downed trees normally occur in the foliage months so snow should not be a problem. Please don't misunderstand that I am opposed to secondary accesses. I am not, except in the case where it is difficult to achieve. I believe that to be the case in Fox Chase for these reasons: 1) The Carver Beach road system is poor at best. 2) Additional trees would need removal. 3) There are grade problems depending on which connection would be used. 4) Additional right-of-way acquisition would be required in Carver Beach to make most of the proposed connections. City Engineer's Comments dated May 18, 1981: Based on safety considerations, Fox Path should be wider than the normal 28' because of the sweeping curves and steep grades. Even with double access, the street should be at least 32' wide. Fox Path is a proposed residential street and excess width is not being required to make it an eventual collector. City Planner's Comments dated April 17, 1981: Staff had recommended that the 36 foot width street for Fox Path in order to mitigate the single access situation of the subject property. No change is recommended. 3. Previously Installed Assessments Developer's Request dated April 15, 1981: We are advised that the property has pending 69 unit assessments. In light of the fact that only 52 units are approved, this pending assessment should be reduced accordingly. REQUEST: Council reduce the pending assessment to 52 units. Manager's Recommendation: Deny Request 4. Road Alignment Developer's Request dated April 15, 1981: This question was discussed at length in our letter to Mr. Don Ashworth .(25 March 1981). By all measures, this is the best method of installing the road. The homesites all have a better configuration and less grading and soil correction would be necessary to prepare the property in this fashion. REQUEST: Council approve the change in the road alignment. Planner's Comments dated April 17, 1981 and May 2, 1981: This is in reference to the proposed alignment of Fox Path in the northerly 1/3 of the development. This office endorses the page - 3- proposed change provided said realignment is constructed to standards acceptable to the City Engineer. It is the recollection of this office that the curved street was presented as not being of any consequence to the prominent stand of pine trees in the northwest portion of the property. 5. Conservation Easement Developer's Request dated April 15, 1981: We learned at the staff meeting of 9 April 1981 that by "conservation easement" the City means no structures including docks are permitted on the lakeshore lots; this was never previously so defined and it is a groundless and unacceptable limitation. Lotus Lake is a General Development Lake. All riparian lots meet both City and Department of Natural Resources (DNR) standards in every respect; only these ten lots will have access to Lotus Lake. REQUEST: Council instruct the city attorney not to include in the Development Agreement any extraneous provisions limiting use of riparian lots. Planner's Comments dated April 17, 1981 and May 2, 1981: The City, in approval of previous subdivisions and Planned Residential Development Districts, i.e. Lotus Lake Estates, Rice Marsh Manor, and Reichert Addition, have placed conservation easements prohibiting structural alterations to the lakeshores. State law does not permit the designation for trail and conservation easements on the final plat document. The City has consistently established such easement through the development contract. The final plat document will need to have drainage and utility easements designated in compliance with subdivision ordinance 33 and as per the City Engineer's recommendations. Manager's Comments dated April 17, 1981: As shown in the planning report of July 17, 1980 (item number 2), the previous approval encompassed specific requirements as well as optional construction techniques for the trail through the proposed development. As resubmitted, a third potential location has now been defined. It is recommended that any approval be conditioned upon the applicant resolving this issue with the Park Commission and that City Council concurrence and/or modification of any agreement between the developer and Park Commission must occur prior to submission of the preliminary plat. Manager's Comments dated June 1, 1981: Although the City Council has generally encouraged developers to create a common outlot to be used by all parties within a subdivision, there is no requirement for this under the ordinance. The plan as previously submitted did encompass a common outlot. The current plan does not reflect this. In meeting with the developer, this past week, he stated they would be willing to accept the area as recommended by the City Planner, includ- ing trail easements and requirements of such, with all of the conditions page -4- 11 typically required in a conservation easement (no filling, clear -cutting, structures, etc.) with the exception that each individual lot be allowed one dock. Mr. Derrick supports his belief that docks should be allowed through the proposed Lake Study Ordinance which allows one dock for each lot having at least 100' in width on a lake. Typically, the Council would allow a common beach lot (if the plat were in the form of an outiot versus separate ownership, i.e. East Lotus Lake). However, exceptions do exist in plats such as the Reichert Addition, i.e, three docks were allowed for the 9 lots. Recognizing that the developer would be willing to agree to all typical conditions of a conservation easement for the area outlined by the Planner and recognizing conditions of the trail system, this office sees the issue of.an individual dock for each lot having a width of 100' at the lake, versus a sharing of a dock for every other lot meeting the 100' requirement, versus one dock for the entire addition, as solely a policy decision. 6. Public Improvements Developer's Request dated April 15, 1981: We request the City of Chanhassen install ordinary municipal utility and street improvements in Fox Chase. We understand you must order a feasibility study, accept the feasibility study, and order the work. Because the City Engineer has already compiled the necessary data for feasibility study, in this case the feasibility study can be ordered, presented and accepted at one meeting. We have already agreed to pay for the actual drafting and preparation of the documents. We hereby waive our right to a public hearing at that meeting and ask that you order the work to go forward upon acceptance of the feasibility report. In discussions with Mr. Craig Mertz we have proposed the assessments be amortized over fifteen years with payment in full due in seven years. REQUEST: Council: a. Order and accept feasibility study and order all public improvements. b. Assess all improvements to Fox Chase, with costs divided among all lots equally. By this request, we waive public hearing of the assessments. C. Assess said public improvement costs over a fifteen year amortization period with entire amount payable in seven years. Manager's Comments dated June 1, 1981: The feasibility study is anticipated to be complete this week for action on June 15, 1981. Therefore, no action can be taken at this time. 7. Access to Pleasant View and Building Permit Developer's Request dated April 15, 1981: Because the majority of the lots have been sold to Lloyd Leirdahl of Minnesota Century Builders Inc., and in that Fox Chase is comprised of two separate parcels, there would normally be permitted two residential building permits. Mr. Lloyd Leirdahl proposes to build two residences, on the northeasternmost and southeasternmost lots of the plat. The former is to be a model for the Parade of Homes in August; the latter will be a private residence for Mr. Leirdahl. It is understood that occupancy page -5- permits may be withheld until water and sewer are hooked up. REQUEST: Council permit two residential structures, moving one permit from Lot 11, Vineland, to Government Lot 5. Planner's Comments dated April 17, 1981 and May 2, 1981: As stated previously, the northeasterly most proposed lot is proposed to have direct access to Pleasant View Road. Due to the grade differential between this lot and Fox Path, this office has no problems with issuing a building permit after the final development plan approval has been given by the City Council. As to a building permit on the southeasterly lot (proposed Lot 19, Block 1) I feel that a building permit should not be issued until the City has received an executed development contract from the applicant that would assure that the schedule of work would proceed in an order that would not present an undue delay between the time that an occupancy permit would be requested and the time in which the road bed would be stabilized and/or base course of asphalt be installed. It has been the recommendation of this office that no individual access be given onto Pleasant View Road for Lot 3 Block 2 of the plan dated April 15, 1981, and that a density transfer be contemplated in the interior of the development. In effect this would reduce the number of houses on Pleasant View Road to three. City Engineer's Comments dated May 18, 1981: Staff has always upheld the position that Fox Path be the only access to Pleasant View Road from this subdivision. Lot 3 of Block 2 does exist as a buildable lot, but site distance restrictions make private access unsafe. Schoell & Madson's Comments dated May 13, 1981: Lot 3, Block 2 could have improved site distance assuming some grading and tree removal, plus driveway placement on the east edge of the lot. The advantage of the Pleasant View access is that it aids the effort of saving the Pine tree stand on the subject lot, versus a driveway access from the southeast. 8. Grading Permit Developer's Request dated April 15, 1981: We are unsure what constitutes a Chanhassen grading permit on our development. We, of course, have the Riley Purgatory Creek Watershed Permit (copy attached). In fact, they have, in effect, approved both road alignments -- one in the original application and the second at the renewal. We will obtain the necessary DNR permits before grading in DNR protected land. Additionally, we will grade only that property that is common to both road alignments until that issue is settled. We have a firm agreement with an earth moving company, but the favorable price we obtained requires that the grading start in May. The grading contractor will supply the bond required by the Watershed District to insure against unwanted erosion damage. REQUEST: Permit to rough grade Fox Chase subject to: a. Terms of Watershed -permit, including required bond; b. Necessary DNR permit; C. Not grading area where application for street change has been made until final determination. page -6- Manager's Recommendation dated June 1, 1981: Deny 9. Other Conditions a. Planning Commission Recommendations of April 22, 1981? b. All Conditions previously applied and as set forth in Section I; except where in direct conflict with action taken this evening, in which case the June 1, 1981 condition would apply. C. Confirm or Extend Completion of Conditions by July 21, 1981? d. Other Conditions which appear necessary as a result of Mrs. Schwartz' report(s) and/or other public comment? Manager's Summation: This office would recommend approval of the amended Final Development Plan on the following conditions (see previous pages for background on each of the following and recognize that disagreement exists by various staff members). 1. Number of Lots: 52 2. Street Width: 36 or 32 3. Reduction of Assessments: Deny 4. Road Alignment: Approve recognizing that approval and conditions set by Watershed District, S.C.S., D.N.R., etc. (as set forth in 10b., below) will apply. 5. Conservation Easement: Approve as a condition. Includes resolution of trail issue with Park Commission and previous conservation/trail conditions as shown in 10b, below. 6. Public Improvements - Table to June 15th. 7. Access to Pleasant View and Buildinq Permit Question: - Approve building permit issuance for Northeasterlymost lot of plat - No permit approved for Lot 19, Block 1, until plat completed. - Lot 3, Block 2, allowed to access to Pleasant View if site distances can be achieved 8. Grading Permit: Deny request 9. Other Conditions: a. Planning Commission recommendations deemed advisable by Council. b. All conditions as applied in July of 1980 and as set forth in Section I of this report. page -7- c. Council decision. d. Council decision. CITY OF CHANHASSEN 690 COULTER DRIVE 0 P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937-1900 MEMORANDUM DATE: May 28, 1981 TO: Don Ashworth, City Manager FROM: Bill Monk, City Engineer RE: Fox Chase Grading Plan The grading plan as submitted by the developer is unacceptable because of an inadequate cross-section wherein no provision is made for grading the boulevards. A proposed cross-section detail, as prepared by this office, is attached for review. The reasons for grading the entire right-of-way are to control erosion, provide an area for snow storage, and standardize the street section throughout the City. I am aware that this does increase the area of land disturbed and the number of trees to be removed, but I recommend the City Council not waive this requirement. Both the straight and curved alignment plans require ex- tensive grading throughout the plat but especially along the western slope where the excavation does reach 20' in isolated areas. The amount of site grading being proposed is not unusual but will require strict attention to the maintenance and possible expansion of -the erosion controls. In comparing the two plans, the quantity of overall site grading required is substantially less on the curved align- ment. This is due almost entirely to the reduction of sub - grade correction necessary because this plan allows for move- ment of a portion of the roadway and some house pads out of an area of poor soils. It should be noted that the final quantity of grading and corresponding area to be disturbed will only be determined when the extent of subgrade excavation is established during the actual grading operation. The developer's engineer has computed earthwork quantities for site development. They are as follows: Item Common Excavation Subcut Excavation Straight Ali nment 130,000 22,000 Curved Alignment 99,000 10,000 O N a O M O + LO O N En + U) N O U O U W !!: Q W Q D G '> w O Um W j Q W F O OU ( v m W Q 1— m H m N N ii,i.:.:d.__v'a.:^.{4�.p�lgf+r;•n?•ar3a=wtiYEi �O m U O Fz U ti Z O 4 2 a ~ O ir F' W (M V) = U ir 1�r Q 2 o W , W O C N O j p fn o N N 0 <7 1 m> >� CO (C W m LU J p m m W X W ir � O O uk�U- cvLL -..^+ram'.. ..:.=nkar��`?�aroF�r•�:�F U � W p Z O U Z O W 0 o U � O O N LLI _ Q W W I W J N Z O � � o w 0 -M v� m z co cn W W f" z mN M Riley- Purgatory Creek Watershed District 8950 COUNTY ROAD =4 EDEN PRAIRIE, MINNESOTA 55343 Mr. Greg Kopishke Westwood Planning and 7415 Wayzata Boulevard Minneapolis, Minnesota Engineering 55426 May 6, 1980 Re: Site Grading for the Sunrise Beach Development: Chanhassen Dear Mr. Kopishke: The Board of Managers of the Riley -Purgatory Creek Watershed District has reviewed the plans and grading and land alteration permit application for site grading for the Sunrise Beach Development in Chanhassen. The Managers are extremely concerned with the steep grades on the development site and will require a continuous inspection of the proposed erosion con- trol measures to ensure that they are properly maintained and functional until the altered areas on the site have been restored. To ensure that the erosion control measures are properly maintained, the District will require that the developer post a performance bond or letter of security in the amount of $20,000 prior to the commencement of land alteration. With the above noted, the Managers approve of the grading and land alteration permit for site grading on this development subject to the following conditions: 1. The District will require that all erosion control measures, i.e., staked hay bales reinforced with snow fence, be installed prior to the commencement of land alteration and be maintained until all areas altered on the site have been restored. Once these erosion control measures have been installed, the District's engineering advisor must be notified prior to the commencement of land altera- tion. Land alteration cannot begin until a field inspection of the erosion control measures has been made by the District's engineering advisor. The District will require that the two temporary sedimentation basins to be located along the north -south roadway be constructed at the initial stages of grading operations and remain functional during the site grading portion of the project. -� Mr. Greg Kopishke Page 2 r May 6, 1980 2. Due to the alteration of steep slopes on the site and the potential of a serious erosion problem occurring if erosion control measures are not properly maintained, the developer must post a performance bond or letter of security in the amount of $20,000 prior to the commencement of land alteration. This security must be submitted and approved by the District's legal advisor. If needed, this performance bond will enable the District to restore altered areas or to install additional erosion control measures to protect the public waters of the District from areas that have-not been restored. 3. All areas altered due to site grading with the exception of the street rights -of -way, must be restored with seed and mulch and/or sod within 2 weeks from the completion of land alteration or no later than September 1, 1980. Those areas altered with a slope of 3:1 or greater must be restored with sod or wood -fiber blanket within 2 weeks from the completion Cof land alteration or no later than September 1, 1980. The areas altered within the street rights -of -way must be restored with seed and mulch and/or sod or be hard surfaced by September 15, 1980. 4. A detailed storm sewer plan must be submitted to the District for review and approval. If stormwater is to be discharged to Lotus Lake, an MDNR Chapter 105 Work in Public Waters Permit will be reqdired. 5. The 100-year flood elevation of Lotus Lake is 899. The District will require that all homes to be constructed adjacent to the lake have minimum basement floor elevations 2 feet above this 100-year flood elevation. If you have any questions regarding the District's comments, please contact us at 920-0655. Sincerely, V RoY ert' C. Obermeyer BARR ENGINEERING CO. Engineers for the District Approved by the B and of Managers RCO/111 EY-PZl�r_=Z",Secretary DISTRICT cc: Mr. Conrad Fiskness Mr. Frederick Richards Mr. Bob Weibel �c) eD Date: �e / `%)S ,H.. a F,I 1'_11 L-LLi1- -- Suite. 339 GSPO 'ranco Avenue Soiith Edina, 'TITniiesota 55435 k1I.i:1-PURGA101U CREEK WA'1'1::1%SHED DISTRICT GkADINC ANI) EARTiDIOVING Pi:RMiT Application for permit, permit, notification of completion and certification of completion P.A. G Name of Applicant Derrick Land Company Address 1770 Shelard Tower; Minneapolis, MN 55426 Telephone 546-2276 Nature of Work Grading of a single family subdivision 27± acres Location of Work Jest of and adjacent to Lotus Lake Municipality Chanhassen, Minnesota Projected Duration of Work 3 months Procedures To Be Used to Control Erosion and Sedimentation Straw bale dikes as necessary during construction; seed or sod as necessary for -permanent cover and erosion contro . If additional space is needed to provide the information requested above,.attach the information to this application and in the space below briefly 'describe the attachments. ' C Date Applicant -_,Authorized-agent-__ Westwood -Planning &_Ln�ineering_Cc manY_ Pernit application received by the Watershed District on the 25 day of February 1980 All work shall be completed by the 15 day of September, 1980. The amount and nature of collateral required is $20,000 This permit application is hereby (Ammimd/approved) by the Board of Managers of the Watershed District this 7 day of May' , 1980, subject to the condi- tions contained.in the attached correspondence dated May 7,'1'980• ~'y This permit is permissive only and does not release the permittee from any liabi- lity or obligation imposed by Minnesota Sty tes, Fed e Law, r local ordinances. t o Board of Managers Notice of: completion of work authorized ; expiration of grading permit , is hereby given to the District on this day of , 19 Permittee -------------------------------------------------------------------------------------------- Certification of the satisfactory completion of work authorized is hereby made on this; day of , 19 Inspector Riley- Purgatory Creek Watershed Distric , . 8950 COUNTY ROAD #. EDEN PRAIRIE, MINNESOTA 5534- March 4, 1981 Mr. Fran Hagen Westwood Planning & Engineering 7415 Wayzata Boulevard Minneapolis, Minnesota 55426 Re: Permit Extension Request - Sunrise Beach/ Fox Chase Development: Chanhassen Dear Mr. Hagen: The Board of Managers of the Riley -Purgatory Creek Watershed District has reviewed the revised plans and request of January 27, 1981 for an extension of the District's grading and land alteration permit for the Sunrise Beach/ Fox Chase Development in Chanhassen. The Managers approve the permit extension request until September 15, 1981 subject to the following conditions: 1. All conditions stipulated in the District's original correspondence of May 6, 1980 remain applicable. 2. Because of the alteration of steep slopes on the site and the potential of a serious erosion problem occurring if erosion control measures are not properly maintained, the developer must post a performance bond or letter of security in the amount of $20,000 prior to the commencement of land alteration. This security must be submitted and approved by the District's -legal advisor. If needed, this performance bond will enable the District to restore altered areas or to install additional erosion control measures to protect the public waters of the District from areas that have not been restored. 3. The District requires that additional erosion control measures, i.e., staked hay bales reinforced with snow fence, be installed between the proposed sedimentation basin and Lotus Lake. These erosion control measures must remain in place until -all altered areas have been restored. 4. A detailed storm sewer plan must be submitted to the District for review and approval. I Mr. Fran Hagen '1 Page 2 March 4, 1981 5. All areas altered because of site grading must be restored with seed and disced mulch, or sod, or wood fiber blanket, or be hard surfaced within 2 weeks after completion of land alteration or no later than September 15, 1981. All altered areas with a slope of 3:1 or greater must be restored with sod or wood fiber blanket within 2 weeks after completion of land alteration. 6. The District must be notified 48 hours prior to commencement of land alteration. If you have any questions regarding the District's comments, please call us at 920-0655. "--_,Sincerely, Robert C. Obermeyer / BARR ENGINEERING CO.,, Engineers for the District Approved by the Board of Managers - RCO/111 RILEY-PURGATORY CREEK WATERSHED DISTRICT c: Mr. Frederick Richards Mr. Frederick Rahr C. resident Mr. Don Ashworth Date: Page 4 Planning Commission Meeting Derrick 5. Requested that the Planning Commission consider the soil conditions in the subject area. The water is just below the surface in the meadow area. Mrs. Schwartz presented a map showing the high water tables in the past. The neighbors asked that Mr. Monk, the City Engineer, take a closer look at the property. 6. It was brought up the the DNR and the Corp of Engineers have not been notified and that they should be notified. 7. The neighbors also requested that the Outlot area be reinstated. John Edwards, a neighboring property owner, indicated that in the past he felt that the neighboring property owners request had been ignored. The plan approved 2 years ago had 49 units then 50 units then 52 units. Mr. Edwards stated that the property could be well platted without destroying the area maybe if less density. Mr. Edwards also expressed his concern with Fox Path dead ending into the adjoining property. Mr. Waibel suggested to the Commission that Fox Path could be made to stop 30 - 40' from the property line and put a cul-du-sac on it. Mr. Jim Meyer, neighbor, indicated concern over the soil in the subject property. Mr. Derrick replied that he had looked at the soil and it was possible to make all of the lots buildable and that it was not a complicated process. Mr. Derrick in reply to the neighbors previous list of requests indicated that he had tried to work with the neighbors. Mr. Derrick explained the he had changed the plat from 54 units to 52 units, removed the outlot and changed the road. All the lots are over the 15,000 square foot minimum lot size, the request that Fox Path be made smaller was agreeable with Derrick. Mr. W. Thompson stated that 2 years ago the feeling of the Planning Commission was that in the future the property should have a second access and also requested a 36' width in order that the road would have a safety zone before entering Pleasant View Road. At that time there was a recommendation that having Fox Path on the east property be looked into. Mr. W. Thompson indicated that from all the response from the crowd that there needs to be more changes and that this item cannot be recommended to the City Council yet. Mr. Jim Orr, from Schoell & Madson, indicated that the second access will end up cutting down some trees and there will be a grade problem. Fox Path will have about 60' platform before entering Pleasant View Road, both views of the road are reasonable. If Fox Path were moved to the east, it would CITY(-DF 7610 LAREDO DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937-1900 PLANNING REPORT DATE: April 17, 1981 TO: Planning Commission & Staff FROM: Bob Waibel, City Planner SUBJECT: Final Development Plan Amendment Request, Fox Chase Addition, Derrick APPLICANT: Derrick Land Company PLANNING CASE: P-614 The applicant has submitted the attached proposed final devel- opment plan for Fox Chase Revised April 15, 1981 for the Public Hearing for the Planning Commission Meeting on April 22, 1981. The major changes between this and the previously reviewed plans are: 1. The curving of the street named "Fox Path" in the northern 1/3 of the development. 2. The proposal for lot 1, Block 1 and Lot 3, Block 2 to have direct access on Pleasant View Road. 3. The removal of the previously proposed outlot/common open space. 4. The relocation of the point from where the trail will connect from the interior street to the lakeshore be- tween Lots 12 & 13 of Block 1. 5. The reduction in the number of lots from 54 to 52 as recommended by the City Council. The following are the comments of this office regarding the points raised in the April 15, 1981 letter from Roger Derrick to the Mayor and Council. Additional staff comments to these points are included in the City Engineers report. P-614, Derrick Page 2 Number of lots At any time throughout the review of the subject Proposal this office does not recall any of the Plans showing more than 55 units. It was presumed that the applicant had calculated the pending 69 unit assessment into his land use development proposals and chose to follow a market that would serve lower density, larger lot development. This is understandably qualifiable as to when the applicant made his initial assessment search on the property. In determining the Land Use density for developments, and especially in the case of Planned Residential Devel- opment Districts, there is the need to make certain judgemental decisions including environmental concerns, and reasonable density standard. The Planning Commission and City Council in previous reviews, although not specifically mentioning environmental constraints of the subject property, did,based upon the information available to them, find the proposal acceptable at 49 and 52 lots respectably. At this time, this office feels that the Final Development Density relative to the 69 units assessed is not germane to the Planning Commission consideration and it is recommended that the Planning Commission not act to change the gross density established by the City Council until so instructed by the Council. 2. Street Width Staff had recommended that the 36 foot width street for Fox Path in order to mitigate the single access situation of the subject property. No change is recommended. 3. P r e v i o u s I Installed Assessments This issue to be discussed with the City Council.. No Planning Commission action necessary at this time. 4. Road Alignment This is in reference to the proposed alignment of Fox Path in the northerly 1/3 of the development. This office endorses the proposed chanqe Provided said re- alienment is constructed to standards acceptable to the City Engineer. 5. Conservation Easement The City, in approval of previous subdivisions and Planned Residential Development Districts, i.e. Lotus Lake Estates, Rice Marsh Manor, and Reichert Addition, have placed conservation easements prohibiting structural alterations to the lakeshores. The assistant City Attorney will be present Wednesday evening to explain in detail the placement of conservation easements as part of subdivision approvals. P-614, Derrick Page 3 6. Public Improvements To be discussed between Derrick Land Company and the City Council. No Planning Commission action necessary. 7. Buildinq Permit As stated previously, the northeasterly most pro- posed lot is proposed to have direct access to Pleasant.: View Road. Due to the grade differential between this lot and Fox Path, this office has no problems with issuing a building permit after the final development plan approval has been given by the City Council. As to a building permit on the southeasterly lot (proposed Lot 19, Block 1) I feel that a building permit should not be issued until the City has received an executed development contract from the applicant that would assure that the schedule of work would proceed in an order that would not present an undue delay between the time that an occupancy permit would be requested and the time in which the road bed would be stabilized and/or base course of asphalt be installed 8. Grading Permit Covered in City Engineers comments. As stated previously, one of the major changes to the developers exhibits has been the removal of the outlot accessing the lake from Fox Path. The previous configuration of the outlot showed it to be traversing a wetland area with marginal attribute for home owners association usage. Additionally much of the pro- posed outlot area was to be utilitized for a drainage and sedimentation basin. This office sees no problem with the removal of said outlot since 1) it had dubious aualities for the establishment of a common area,2) the Chanhassen Park Plan is designed to adequately provide the recreational needs of the community. 3) The City Engineer will require the dedication of proper utility & drainage easements for the sedimentation basin. Another change to the applicants exhibits is that the trail easement from Fox Path to Lotus Lake has been moved to an area between Lots 12 & 13 of Block 1. I find that this is an over- all improvement to the plan in that it traverses areas of soils more suitable to development of said trail. The developer has responded to the neighborhood concern in preserving the stand of Pine trees on the northwesterly most portion of the subject property through a proposal to have Lot 3, Block 2 access directly onto Pleasant View Road. Developer has indicated that this' configuration will permit the placement of residential structures and driveways that will minimize the removal of said trees. As you know, this protion of the subject Droperty has extremely poor sight distance characteristics on Pleasant View Road. Since the preservation of this stand of trees is quite appropriate to the P-614, Derrick Page 4 character of the development and that subdivision safety design is paramount, this office recommends that this problem be mitigated either by a density transfer of Lot 3 to another portion of the proposed plat. In conversations with various property owners near the subject property, I have been asked to comment on the extention of the right of way of Fox Path to the westerly property line, and the possibility of secondary access from the subject property to the south.In discussions with the attorneys office, it was found to be acceptable to withdraw the dedicated right of way 40'to 50' from the western property line provided that a planning agreement be filed at the Carver County Recorders office stating that the adjoining lots (Lot 22, Block 2 and Lot 30, Block 1) would waive any acquisition fees to the City if extention of said right of way is needed in the future. As to the issue of secondary access, the City Engineer, Bill Monk, feels that the previous findings that that access would be of marginal benefit remains valid. I recommend that the Planning Commission recommend that the City Council approve the Final Development Plan of Derrick Land Company in accordance with previous City Council approval of July 1980 with the additional condition that the density transfer for Lot 3, Block 2 be incorporated into the Final Plat will main- tain as best possible, the integrity of the stand of trees in the northwest portion of the property. Manager's Comments A copy of the City Council minutes of April 7 (Preliminary Development Plan Approval) as well as July 21 (Final Development Plan Approval) are enclosed. This office would recommend that any action on this item include not only the conditions of this amended approval, but also the conditions as established for the original plat in April and July of 1980. Public Improvements: Mr. Derrick's letter makes several requests in regards to a'�etition for public improvements", "ordering feasibility study","specific method and years of assessment", etc. Given the length of this agenda, this office would recommend that discussion and action on these types of issues be tabled to a future meeting. Location and Construction of Trail: As shown in the planning report of July 17, 1980 (item number 2) the previous approval encompassed specific requirements as well as optional construction techniques for the trail through the proposed development. As resubmitted, a third potential location has now been defined. It is recommended that any approval be conditioned upon the applicant resolving this issue with the Planning Commission and that City Council concurrence and/or modification of any agreement between the developer and Park Commission must occur prior to submission of the preliminary plat. Page 3 Planning Commission Meeting Pryzmus Ms. Watson made a motion to amend the Previous motion to read that the Driving Range shall provide 15 off street parking and some on street parking. Second by Mr. Noziska. Six members aye, J. Thompson opposed. Final Development Plan Amendment Reauest, Fox Chase Addition Derrick: ' Mr. Waibel presented the Planning Report to the Planning Commission, listing the 5 changes from the previous plans sub- mitted (see Planning Report April 17, 1981). Mr. Waibel also read the Staffs comments on the number of lots, street width, previously installed assessments, road alignment, conservation easement, public improvements,building permits and grading permits. Mr. Partridge indicated to the Planning Commission that the number of assessments and the public improvements are a function of the City Council and that the Planning Commission should let them act on those items. Mr. Derrick, the applicant, explained to the Planning Commission that if the road was changed he would have to remove some Maple trees and would have to shave ground rather than to fill, or if the road was moved it would make 2 lots smaller and less desirable. Mr. Derrick has reduced his plans from 54 units to 52 units. Mrs. Kathy Schwartz, a neighboring property owner, stated th t the neighbors had gotten together and met with Mr. Derrick an � the neighbors agreed upon 7 points that they would like to bring up to the Planning Commission at this time: 1. They would like to see a plat drawing with 52 units and they don't like such density close to Pleasant View Road. 2. On the first plan Mr. Derrick had proposed 3 lots along Pleasant View Road now he is presenting 4 lots. The neighbors would like to propose that he return to his first proposal of 3 lots along Pleasant View. 3. Regarding the access to Pleasant View Road - neighbors request that Fox Path be moved to the East property line for safety purposes. 4. It was requested that Mr. Derrick change the width of Fox Path from 36' to 28' to match the width of Pleasant View Road. Pag-e g Planning Commission Minutes Derrick create a site problem to the east. the east is an economic problem. Not changing the road to Ms. Watson asked how the platform will look, will the road drop off on both sides? Mr. Orr indicated that the road will drop off some but the looks will be alright. Mr. M. Thompson indicated that Mr. Derrick has proposed a 10.8 grade level on Fox Path with a 3% grade on the platform. Mr. Monk explained that there is a maximum 7% grade level in the ordinance. The 7% is for safety in the winter time. Mr. M. Thompson asked Mr. Waibel if the staff were the only ones who are in favor of the deadend street into the Bennett property. Mr. Waibel indicated that Mr. Derrick had proposed Fox Path that way and that only lately was it ever brought up to end the road 30-40' from the property line and put a cul-du-sac on it. Fox Path was recommended to be 36' wide for the reason that that the road is a long single access road. Mr. M. Thompson asked Mrs. Bennett if anyone had approached her concerning Fox Path ending on her property line. Mrs. Bennett answered no. Mr. Frank Kurvers, a property owner, asked about the outlot and the sediment pond, what is going on with this item? Mr. Waibel indicated that the pond is required for run off. Mr. Monk explained that the outlot is not required for drainage but the outlot was to be for the property owners in Fox Chase in order that they could all have use of the lake. The sediment pond is a different thing. Mr. Curt Laughinghouse, a represent- itive for Mr. Derrick, stated that initially the sediment pond was planned to be in the outlot. The outlot was planned for recreational use. Now the proposal is that the pond be placed in the backyard of the lake front lots and the outlot has been disgarded. Mr. Kurvers asked if all of the work on the lake shore was going to damage the soil and if there would be any runoff into the lake. Ms. Watson asked Mr. Derrick if he understood that 20' along the lakeshore was to be designated to the city for a Conservation Easement. Mr. Derrick answered that this was the first he knew that the easement was to be along the lakeshore. Ms. Watson asked why no docks were permitted. Mr. Craig Mertz, the City Attorney, explained that the Conservation Easement first came up when the Park & Recreation Commission considered the sketch plan on March 20, 1979. They recommended the Conservation Easement and through the development process it was required to have a Conservation Easement. That was incorporated into the City Councils approval of the plat in July of 1980. The Conservation Easement that applies to this community means that you can't dig on the lake shore or fill on the lakeshore, you can't cut the vegitation and you can't construct structures on the lakeshore, if you can't con- Page 6 Planning Commission Meeting Derrick struct structures that means no docks. Mr. Waibel indicated that on the plans the Conservation Easement is shown to start between Lots 12 and 13 and then along the lakeshore. The Utility Easement and the Conservation Easement are in the same place. Mr. Derrick indicated that he is against the Conservation Easement if it prevents the lakeshore home owners from having docks. Mr. Derrick explained to the Planning Commission that if the road (Fox Path) would be moved to the east property line it would create a lot with 2 road sides and that would make the lot undesirable. There are nice trees that would have to be taken down and it would mean an extra 100 feet of sewer and road. Ms. Nancy Osborne, a property owner, expressed concern over Fox Path. She feels that in the winter there will not be enough of a run to make it up Pleasant View Road. Mr. W. Thompson made a motion to close the Public Hearing. Second by Mr. L. Conrad. Vote: 6-ayes, 1-nay. Mr. M. Thompson opposed. Mr. Mertz explained that the Planning Items that the Planning Commission should discuss and recommend to the City Council are the street width, 2nd access, road alignment, number of lots and the Conservation Easement. The rest are Administration items such as building permits, previously installed assessments grading and public improvements. Mr. J Thompson expressed concern of all the filling and moving of land east of Fox Path that is proposed to be up to 12' in height. The Planning Commission has been told that this process is the problem of the builder but Mr. J. Thompson states that as the Planning Commission they have a responsibility to the people who are going to buy the property, and this should be looked into more carefully. Mr. J. Thompson indicated that he likes a combination of the last two proposals, maybe could take out lot 26 of Exhibit A and make that for future consideration for an easement to the south. Mr. J. Thompson suggested that the road be curved more gently and the 32' width of the road was expressed. The Conservation Easement is necessary. Page 7 Planning Commission Minutes Derrick Mr. Ladd Conrad indicated that he would like to see Lots 1 & 2 of Section 2 taken out and make the road access further to the east. He likes the idea of an outlot to the south of the proposed property until a road access is necessary. Mr. Conrad felt that the cul-du-sac is important and the a 28' or 32' street width is acceptable. He would like to see 52 lots instead of the 54 presented on the first plan. Mr. H. Noziska stated that he is concerned about the land is it buildable? Also, he felt that there are to many units than there should be compared to the terrain of the land. He feels that.36' street width is reasonable because there won't b'e a secondary access for some time. Mr. Noziska likes the idea of the Conservation Easement and feels that the number of lots shouldn't be more than 52 units. Ms..Watson indicated that she would like to see a secondary access maybe in the south, could be used as an outlot until needed as an access, and felt that a 28' or 32' street width was acceptable. Ms. Watson felt that the road should be moved over to the east not only for the reason that the street would have better sight but the grade is better to the east. Ms. Watson is very much in favor or the Conservation Easement and would like to see the outlot back again. Ms. Watson expressed concern for the movement of all the dirt in the area, who will Protect the lake and what will prevent the lakeshore owners from dumping their fertilizer into the lake as erosion occurs. Mr. Mike Thompson indicated that he would like to preserve the meadow and feels that there are better ways of Planning this plat. Mr. M. Thompson stated that the environmental impact of this area is fairly good. This proposal is not in keeping with the particular area. Mr. M. Thompson expressed his concern for all the moving of dirt, demucking and filling and is concerned for the effect on the lake. He would like to see the access moved to the east the hill is to steep and the sight is poor. Mr. M. Thompson did not like the 36' street width, too wide, and the grade standards are violated by having too steep of a road. He also indicated that he did not like the idea of Lot 3, Block 2 access onto Pleasant View Road. He expressed his mixed feelings about the Conservation Easement, if a lakeshore owner should be able to have a dock or not. Mr. M. Thompson indicated that he does not like the 52 units would rather see 35 but 52 have been approved. Mr. M. Thompson asked how a lot is made buildable, would they have to demuck the whole lot or just the building site? Mr. Derrick stated that the whole lot would be buildable, fill it with proper soil. The muck is taken out and replaced with good soil, then compacted and then filled again if needed. Have to raise the lots because of the water table and to keep the grades down. Mr. Jim Meyer asked if any building permits could be issued before the Final Plat approval? Mr. Mertz indicated Page 8 Planning Commission Minutes Derrick that one building permit could be issued as one large lot but no more than that. Mr. J. Thompson stated that with 52 lots and looking at the lay of the land in keeping with the rural area in this part of Chanhassen Mr. Derrick could develope this land very attractively without all the grading by utilizing the combination or clustering and single family homes. He feels that the property would be more desirable and energy efficient and would be a real plus for Chanhassen. Mr. Conrad asked if Mr. Derrick was beyond the point of changing his plans. Mr. Derrick stated that he has been working on this plat for a bong time and that any other city that he has worked in has not had to make this many changes. When Mr. Derrick bought the land he looked at it before and had investigated what could be done with the property. The city has accessed the property as 69 units. Mr. Art Partridge indicated that he feel that the removal of the outlot and making it into lots is quite an improvement. He is for the Conservation Easement and feels that a southerly access is important. Mr. W. Thompson indicated that the Planning Commission should get a consensus on the item presented. Mr. J. Thompson made a motion to recommend to the City Council that Fox Chase access onto Pleasant View Road be moved to the easterly property line. Second by Ms. Watson. 6 ayes, Mr. Noziska nay. Passed. Mr. H. Noziska made a motion that the Planning Commission accept the proposal to make a curb cut onto Pleasant View Road from Lot 3, Block 2 as shown on Exhibit A. Second by W Thompson. Mr. Noziska, Mr. W. Thompson, Mr. L. Conrad - aye, Ms. Watson, Mr. J. Thompson, Mr. M. Thompson, Mr. Partridge - nay. Failed. Mr. L. Conrad made a motion to decrease the proposed road width from 36' to 32'. Second by Mr. M. Thompson. 5 - ayes, Mr. Noziska and Mr. J. Thompson - nay. Passed. Mr. H. Noziska made a motion that the Planning Commission adopt the street alienment of Exhibit A subject to the first motion about moving the curb cut east and no accesses from any lots directly on Pleasant View Road. Second by Ms. Watson. 5 ayes, Mr. Conrad - nay, Mr. J. Thompson sustained. Passed. N Page 9. Planning Commission Minutes Derrick Ms. Watson made a motion that the Planning Commission request that the developer dedicate a right of way 50' in width between Lots 26 & 27, Block 1 for possible future 2nd access. Second by Mr. M. Thompson. 5 aye, Mr. Noziska, Mr. Partridge, Mr. W. Thompson - nay. Passed. Mr. Conrad made a motion that we maintain the Conservation Easement, this Conservation Easement will not allow the alter- ation of lakeshore and installation of structures including private docks. Second by Mr. Noziska. 6 - ayes, Mr. M. Thompson nay. Passed. Mr. J. Thompson made a motion that the developer be required to dedicate a trail easement originating on the southerly line of the plat within the Utility easement commensing at the southerly edge of the property and lying northerly to the south line of Lot 12, Block 1 according to Exhibit A and running westerly at that point to its point of intersection of Fox Path as designated in Exhibit Athence continuing northerly -with the right of way of Fox Path to intersection of Pleasant View Road. Mr. W. Thompson seconded the motion. All in favor. Mr. J. Thompson made a motion that the Planning Commission recommend to the City Council that the Outlot may be incorporated into the individual properties as shown in Exhibit A since they have virtually no utility as an Outlot. Second by Mr. Noziska. All in favor. Mr. W. Thompson made a motion that the Planning Commission recommend to the City Council that the Exhibit A. (4-22-81) be accepted but the Planning Commissions recommendations for such be subject to the modification previously approved. Motion was withdrawn. Mr. Conrad made a motion that a permanent cul-du-sac be recommended on the west end of Fox Path. Second by Mr. M. Thompson. 5 aye - Mr. W. Thompson and Mr. Noziska opposed. Passed. Mr. W. Thompson made a motion that the Planning Commission present to the City Council approval of Exhibit A to include the recommendations to the subject property as previously approved. Second by Mr. Noziska. Mr. W. Thompson and Mr. Noziska - aye, 5 - nay. Failed. Mr. J. Thompson made a motion that the Planning Commission recommend to the City Council to reject the proposed planned development (Exhibit A) based on the previous 9 motions until they are met. Mr. Conrad seconded the motion. 6 in favor Mr. W. Thompson abstained. Passed. 'CITY COUNCIL MINUTES ',pril 7, 1980 �. _4_ REZONING AND SUBDIVI DN REQUEST, RICE LAKE MANL_., HANSEN, KLINGELHUTZ, AND McMULLEN PROPERTIES, CONTINUED: A motion was made by Councilman Pearson and seconded by Councilman Swenson to approve the 8 residential lot subdivision located off West 86th Street with the conditions set forth in the Land Use Coordinator's report of April 1, 1980, and as clarified in the above noted minutes. Motion approved. Ayes - All. REZONING, SUBDIVISION AND PRELIMINARY DEVELOPMENT PLAN REVIEW, SUNRISE BEACH, DERRICK LAND COMPANY: Roger Derrick and John Shardlow were present representing Derrick Land Company. The proposal is a 52 residential lot subdivision lying south of Pleasant View Road and west of Lotus Lake. This subdivision has been delayed during the course of the past year to insure that the City reasonably considered all alternatives for potential street patterns getting to and being extended from the proposed ' subdivision. A motion was made by Councilman Geving and seconded by Councilman Swenson ,:that the subdivision and preliminary development plan of Derrick Land Company be approved contingent upon the following: 1. That there be a conservation easement along the entire lake shore; and 2. That there be a trail along the east line of the plat from Pleasant View Road to the conservation easement area. `- he following voted in favor: Councilmen Geving and Swenson. The ollowing voted against: Acting Mayor Neveaux and Councilman Pearson. Motion failed. motion was made by Councilman Pearson and seconded by Councilman _:.X*!Swenson to rezone the subject premises to P-1 and to approve the 52 lot preliminary development plan as depicted on the Westwood Planning <.� ... reliminary plat dated April 1, 1980, subject to the following conditions: g 1. That the applicant receive approval of their grading `- plan, drainage plan and erosion control plan from the Soil .�.< .....:'. Conservation Service, the Minnesota Department of Nat— 1 a Resources and the Riley Purgatory Creek Watershed District; 2. That said approvals be received prior to the matter being resubmitted to the City Council for preliminary plat approval; 3. That the pedestrian and conservation easement portion of the proposed development must be shown by the applicant to have such soil conditions as would allow for the development of such facilities, and that the applicant's soil condition evidence is to be reviewed by the City Engineer. 4. That the applicant prepare cul-de-sac plans for the roadway portion in the vicinity of lot 20, block 3 and lot 24, block 1. Said plans are to be reviewed and approved by the city engineer. 5. Paved street surfaces are to be 36 feet wide and paved cul-de-sacs are to be 32 feet in diameter. 6. That the Park and Recreation Commission review alternative trail locations between Pleasant View Road and the con- servation easement and is to submit a recommendation to the City Council. Motion approved. Ayes - All. Council Meeting July 2� 1980 _2_ i CONDITIONAL USE PERMIT, L=S LAKE ESTATES BEACH LOT AND allRANCE SIGN VARIANCE: Members of the Lotus Lake Estates Homeowners Association are requesting approval to establish a beach lot between Lot 35, Block 2 and Lot 9, Block 1. They are proposing to install a sand blanket six inches deep and also install two canoe racks. Councilman Neveaux moved to approve a conditional use permit for a beach lot conditioned upon: 1. That the beach lot consist of a sand blanket, swim area, and two six capacity canoe racks as shown on the site plan, City Council Exhibit A, dated July 21, 1980. 2. That the swim area be marked with a minimum of three "swim area" buoys that are in accordance with the Uniform Waterway Marking System. 3. That the swim area be marked by the above anchored buoys at a reasonable "-:-3 .-;'-,.--.-.distance distanc �'=-` e from shore. Notion seconded by Councilman Geving. The following voted in favor: Mayor Hobbs, Councilmen Pearson, Neveaux, Geving, and Swenson. No negative votes. Motion carried. The homeowner's association is requesting a sign permit to erect an entrance sign at Choctaw Circle and Chanhassen Road. The proposed sign will not be lighted and will be made of wood. Staff and the Sign Committee recommended approval of a variance. °% _:_ ....... Councilman Swenson moved to grant a variance for the installation of an entrance sign in the public right-of-way. Motion seconded by Councilman Neveaux. The following voted in favor: Mayor Hobbs, Councilmen Pearson, Neveaux, Geving, and Swenson. No negative votes. Motion carried. FINAL DEVELOPMENT PLAN - FOX CHASE ADDITION (DERRICK LAND COMPANY): John Shardlow r == resent was to discuss the P proposed plat and answer questions. -.Councilman Neveaux moved to approve the final development plan based upon the °'confi ation of 52 lots as y April gur presented to the City Council 7 1980. Motion seconded by Councilmz Geving. The following voted in favor: Councilmen Pearson, Neveaux, Geving, and Swenson. Mayor Hobbs voted no. Motion carried. Councilman Neveaux moved to approve the final development plan for Fox Chase subject to item 2'. 3 and 4 of the City Manager's report dated July 17, 1980 and items 1-5 in the Land Use Coordinator's report of July 9, 1980. -motion seconded -rµ� .•"�:. _•_ by Councilman Pearson. The following voted in favor: Councilmen Pearson, Neveaux, Geving, and Swenson. Mayor Hobbs voted no. Motion carried. VARIANCE REQUEST, LOTS 653-658 -, 683-688CARVER BEACH: Mike Sorenson is seeking two lot area variances of 3,000 square feet each. The Board of Adjustments and Appeals recommended approval provided that lots be combined as parcel one being Lots 653-658 and parcel two being Lots 633-688. Councilman Neveau:< moved to accept the Planning report of July 16, 1980, and the Board of Adjustments and Appeals recamendation and the Land Use Coordinator's memorandum of July 11, 1980, points 1-3. Motion seconded by Councilman Geving. The following voted in favor: Mayor Hobbs, Councilmen Pearson, Neveaux, Geving, and Swenson. No negative votes. Motion carried. LOT AREA, FRONT YARD, AND ME_'R YARD SETBACK VARIANCES, LOTS 19 AND 20, RID CEDAR POINT: Ron and Sherry Ytzen are requesting an 8,000 square foot lot area variance, a 25 foot rear yard setback variance to the Shoreland Management Ordinance, and a front yard variance of 14 feet in order to build a hone. The existing cabin will be demolished. MED10RANDUM DATE: July (.� I I Y U) �_ -6-- .- Eli 7610 LAREDO DRIVEOP.O. BOX 147eCHANHASSEN, MINNESOTA 55317 (612) 474-8885 17,t980 City Manager, Don Ashworth FROM: Land Use Coordinator, Bob Waibel _ UBJ: Final Development Plan Review, Fox Chase Addition APPLICANT: -Derrick Land Co. r__PLANNING CASE: P-614 '=�=Attached please find the planning materials sent to the Planning Commission for their review of the subject final development plan and the minutes of that review. `=jZjems you will note in the attached. planning report of July 9 1980, _ y g P � -this office had indicated to the Planning Commission that the proposed final development plan for Fox Chase showed an increase Hof 2 lots over what the City Council had approved at their ��x:, Y PP `?``1`preliminary development. plan review. The Planning Commission, :_.-.`- as noted in the minutes of July 9, 1980, had discussed this issue, �=�and voted to approve the final development plan as proposed. Althou h `it is not certain from the minutes that the specific ,.'reason for the two negative votes was th e subsequent addition of two lots, they (the :votes) were relative to the proposed density of the -development. -One comment delivered verbally by the City Engineer at the Planning 7".Commission review,'which is not included in the record, is that the `'-City-Brig ineer recommends an 18" gravel equivalency for street stand- --7ards. `<;t=Manager's Comments: In reviewing staff, Planning Commission, City =r=Engineer's and Attorney's reports on this item, this office believes the following conditions should additionally be established: 55 lots were proposed by the developer during sketch plan review. Following discussion with the Planning Commission, neighborhood, etc. a revised plan reflecting 49 lots was approved by the Planning Commission at the preliminary #=ti development plan hearing. The City Council approved the MKS Page 2 preliminary development plan, although staff noted that the developer had increased the number of lots from 49 to 52 following Planning Commission consideration. The developer now seeks final development plan r6view and has increased the number of lots to 54. The' Planning Commis approved this change with two members voting against such on the basis of density. This office has concerns with this overall process in that the preliminary development -'- =- plan stage is the point whereat densities, nature and general location of roadways, zoning, open areas, - etc. are established. After this point, the developer proceeds with specific engineering information recognizing that he has come to agreement with the City in regards to these' overall land use issues. Miner shifts in road alignments, lot lines, etc. can occur as a result of specific engineerinc data; however, densities should not be changed by either the - City or the applicant. If this is allowed to occur, similar to the way in which it has, what is the purpose of preliminary development plan hearings or attempting to come to agreement as to development issues at a hearing stage_ The developer should be required to reduce the number -.:-of lots to 52 (49 appears justifiable) . -' 2). The location of the trail is still uncertain at this tine, i.e. whether along the back lot lines or abutting -the..:,.--- the ._:,:r street on the north end of the development. ..s- In meeting with.- the Park and Recreation Commission, the developers have stated their desire to have this decision withheld until grading is commenced and Park and Recreation Commissioners=;v;j afforded an opportunity to walk both potential., locations.:- --- ';' This suggestion appears to create some problems in ­_ preparation of a development contract (outlining two potential location areas), but no other reasonable..,,. ' alternative appears to exist. However, in accepting _thee_ 1 final development plan, it should be clear that the outlot area is being accepted as a conservation area and,-;:� as such, no park credits are being given.'' Further, that . it is to the advantage of the developer to _have'the 8 foots trail through the conservation area and, whether .such within this conservation area or partially adjacent. -to the-.-,..-. road, that developers agree to grade and install wood'chips for the trail in accordance with the recommendations: of "thee. Park and Recreation Commission as a part of their overall "'r grading plan. 3). As a part of both the East Lotus Lake Project and Near: Mountain development p proposals, significant discussion occurred in regards to the City's ability to assure that public improvements are designed and inspected to City standards _ Ih conformance with these discussions, - it is recommended that the developer be required to use the City's engineer for preparation of plans and specifi-yµW�,� cations and all staking and inspection. 4). The above conditions are in addition to those outlined b 'th Land Use Coordinator in his reports of July 9 and 17, and th Engineer's report of July 7 - such disregarding those variance alpproved by the • City Council durn prelimina development` pi an approval, .e. length of cu� -de -sacs and treet grades. _,,%Z5`EQTT/CARVER ECONOMIC COUNCIL - FARMER'S MARKET Bob'Waibe ave his comments and recommendations. Ik MARKET albe a h _s comments an recommendations 4k% At ma or n open the public hearing. n .Chairman Horn op P Out Gayle 1,7olff, 7608 Great P s Blvd. wa concerned about the advisory priest, 'n v , b ted about this and the notice -:-'body, not only the p iest, e con of opening in the Carver Co. Her —_--David Pease, representing thja,"Scott/Cafer Economic Council, stated -,,.they had spokenwith FathL--,Ynorr of St. HuB­e.4t s Church. He further explained the proce-au s and responsibilities the Economic. Council. - the Ec onomic. 1 a e the �3u"I_ TOM Hamilton mo and Walter Thompson seconded to se the JLC hearing Th on moved, Mike -Thompson seconded to approve the condi 'onal -ermit request quest subject to Bob Waibel's conditions. Motion ca. ca. d,*.!d urkan-Lmously. FOX CHASE FINAL DEVELOPMENT PLAN llaibel presented the review and his recommendations_ FranHei . gen illustrated the plan to the commission. Z`There was discussion on the size, and change'of number of lots, grade of approach to Pleasant ViewRoad, the right-of-ways, pedestrian �M.p., way easementuse of trail and the conditions and terms of staff Thompson seconded to accept the proposed walter Thompson moved, Jim Thom-p- ,,_ -_Fox Chase plat dated may 12, 1980, revised May 22, 1980, as a final - �.-7-1 comments and recommendations made by :44,-,`�W�development plan and that the 40W -rsta,f f be included. due to density - ­-----r,,,Negative votes: Mike Thompson and Art Partridge, PLANNING REPORT DATE: July 9, CITY ..)F 7610 LAREDO DRIVE9P.O. BOX 147oCHANHASSEN, MINNESOTA 55317 (612) 474-8885 1980 Planning Commission and Staff FROM: Land Use Coordinator, Bob Waibel -SUBJ: Final Development Plan Review, Fox Chase Addition APPLICANT: _Derrick Land Company PLANNING CASE: P-614 The following is this office's response to the Assistant City Attorneys letter of June 17, 1980 and the. City Engineer's letter of July 7, 1980 and the overall action at hand. As you have probably noted, the subject proposal has Increased from 52 single family residential: lots to 54. This office 'finds that the density proposed falls.,.within ithin the most restrictive guidelines -of the ordinances of Chanhassen and that any reduction -in this should be substantively validated on reasons of local.-- physiography. �~An response to the City Engineer's letter'of July 7, 1980, the issues of wider streets, and the 7% plus grades were. covered in the City Council review of April 7, 1980, wherein the City Council recommended hat the street surfaces - 'be- 36 --f e'e"'t'. wide:,': and'the the paved portion of the cul-de-sacs are. -to be-32-feet in diameter;. nly concern that this office ­ as is that the recommended ro . adway:..q_E-­--a_ cul-de-sac iameter by Ordinance 33 is 80 feet. I recommend. -that the applicant nclude in their final construction plans, remea* ia*tion'- for the vertical curves on cul-de-sacs E and D, the temporary cul-de-sac- --.design plans at the southerly end of the plat, sanitary sewers; and' -,-.,watermains as recommended in said engineer's report with additional consideration for the looping at the end of the temporary cul-de-sac. ..!.In response to the Assistant City Attorney's letter of June 17- 1980, I recommend the following special conditions and considerations for inclusion into the development contract on the subject proposal: That a conservation easement be established within the area below the 900 foot elevation pursuant to the Comprehensive Plan and that within said conservation . .. _ ,��- a �.-�: .-. _ ,�.,f:; .�� ,,. w:.ra� u!�p _ 'aSx r�&_ ,.wa0i+ciw,v..,�:- Planning Report -2- ;,,f July 9, 1980 easement, a pedestrian -way easement be dedicated that is 8 feet wide with 1+ foot on either side' for purposes of maintenance (the above would nullify the proposed 20 foot trail easement indicAted on the proposed preliminary plat dated May 12, 1980, with the understanding that the above described easement would be established upon completion of a feasible `- route within the conservation easement). - 2). That the applicant and its contractors, including -r home builders, carry out the construction of - improvements and structures in accordance with the requirements setforth by the Riley Purgatory Creek Watershed District, and the Soil Conservation Service Evaluation Report dated June 18, 1980. (The City Council recommendation is that the approvals be obtained before their review of the preliminary plat. For qualification purposes, the Riley Purgatory Creek Watershed District ... has given a conditional approval in their May 6,�� 1980, correspondence, however, the Soil Conservation Service, being an advisory body, will not given such approval. However, I believe such may be satisfied through carrying out their recommendations that were _... _ noted in their evaluation report). FV 3). That extra precautions be taken so that removal of _ existing vegetation may be kept to a minimum during construction. 4). For reasons of soil conditions and slopes, the building plans for all residences proposed within the subject development should be certified by an architect or ; civil engineer registered in the State of Minnesota. -- 5) . That the applicant be required to post sufficient. -- - escrows to assure that the degree of engineering - ;F�::.• and inspection is carried out as recommended by the Riley Purgatory Creek Watershed District and the Soil Conservation Service. i a t WILLIAM D. SCHOELL 'CARLISLE'MADSON JACK T. VOSLER JAMES R. ORR HAROLD E. DAHLIN LARRY L. HANSON JACK E. GILL . RDONEY B. GORDON THEODORE D. KEMNA JOHN W. EMOND 'KENNETH E. ADOLF WILLIAM R. ENGELHARDT 13RUCE C. SUNDING R. SCOTT HAARI DENNIS W- SAARI GERALD L- HACKMAN. ` "- C SCHOELL & MAOSON, INC. t ENGINEERS AND SURVEYORS (612) 938-7601 a 50 NINTH AVENUE SOUTH • HOPKINS. MINNESOTA 55343 OFFICES AT HURON. SOUTH DAKOTA AND DENTON. TEXAS July 7, 1980 City of Chanhassen c/o Mr. Bob Waibel, Assistant City Manager Chanhassen, Minnesota 55317 Subject: Derrick Land Company sunrise Beach (Fox Chase) - Preliminary Plat Review `k2V ;;Gentlemen : - . We herein transmit our plan review, in terms of compliance wit'n the City Ordinance, for the above named PlZD_ Results are ``as follows: ' STREETS. -: The right —of -way -and street widths meet the ordinance for a residential street. -However, it seems. to me that the main street through the development will ultimately be a collector sireet---thus a wider street width should be considered. .z Intersection radii are not shown and should be indicated £sas 20 feet. Grade on street "A" exceeds both the 7lo maximu*n .. _.. - and 3/o within 30 feet of cul-de-sac "D" . Vertical curves on cul-de-sacs "E" (upp-ar end) and "D" (at intersection) are less than 20 times the algebraic difference as required by ordinance. Cul-de-sac "E" also exceeds the 500 foot maximum length_ The method of providing a "temporary" cul-de-sac at the south end of ;s. the main street is not clear and should be shown. L SAIJITARY SEWER. Size of the proposed sanitary sewer is not shown, but is assumed to be 8-inch. Easement for the sanitary sewer from existing manhole to manhole in street "A" (between Lots 16 and 4:. 17, Block 3) is not sho.�rn. Manholes in cul-de-sacs should be extended to eliminate services directly into the manholes_ — ---.wow -CHOEL�. 8� MADSON,itvC�� M� City of Chanhassen July 7, 1960 c/o Mr. Bob Waibel, Assistant t `' City Manager F Page 2 �.. 3. WATERMAIN. Size of the watermain is not shown.- We recommend 8-inch onthe main street and 6-inch on the cul-de-sacs. Since cul-de-sac "E" is in excess of 500 feet, we suggest the watermain be looped internally within the development, or looped to existing water on Huron. -� DRAINAGE WORKS_ _ Proposed drainage works appear to be adequate with the excep- tion that the 30-inch discharge pipe at 1.5% grade should be a ' increased to- 36-inch. CONCLUSIONS. 4 .,•f _ sky We recommend approval of the plans subject to the Items _ 4.,., specifically noted. In terms of street grades, we recommend I waiver of the 7% maximum grade limitation in favor of the grades. proposed. The site simply does not facilitate 7% maximum grades; and we feel the proposed grades are acceptable. Very truly yours, SCHOELL & MADSON, INC r i i•i�' e: tT F : JROrr - sg x-.,cc: Derrick Land Company - J Westwood Planning & Engineering 1 May 15, 1981 Chanhassen City Council Chanhassen, Mn. Dear Mayor and Council Members, I had the opportunity to walk through the proposed Fox Chase Development today with Fran Callahan and Kurt Laughinghouse, the attorney for Derrick Land Company. After seeing some of the proposed changes in the sewer line, I feel that it is necessary for the entire Park Commission to see the revised plat again before any plans are acoepted, regarding the placement of the trail. We could discuss this at our June 2 meeting. Sincerely, J Phyllis Pope Park Commission Chair iRECEIVF-D 14AY 18 1981 CITY OF CHANHASSEN SECTION III Kathy Schwartz Report of May 2, 1981 and Responses to such Report SCANNED - fEMSENE - ---�- _ - ti. � - �■ � r.'.. .'.Ir..... - I - - - 6- - - ...■.`..� P-J - — -- Ed Adft ■ v CONCERNS. OF WEST PLEASANT VIEW ROAD ASSOCIATION May 2, 1981 Report to Chanhassen City Council TABLE OF CONTENTS Page A. ORDINANCE PROTECTION TO DERRICK AND NEIGHBORHOOD........ 1 Conflicting Ordinances? ............................... 4 B. CHANGES IN FOX CHASE FROM'July 21, 1980 to PRESENT...... 4 Common Space .......................................... 4 Increase in Lakeshore Lots ............................. 4 Trail Easement.... .................................. 5 Lot Sizes........... ....................... ........... 5 Straight Road Changed to Curved Road: Grading......... 5 Lots Along Pleasant View .............................. 5 Private Access to -Pleasant View......... ..0.......... 5 Fox Path Exit to Pleasant View ........................ 6 Street Width and Secondary Access ...... ............... 6 Minnesota Historical Society Letter of8-20-79........ 8 John W. Shardlow Letter of 8-15-79 to Chanhassen Staff and Planning Commission............ 9 C. SOIL .................................................... 11 D. EROSION ................................................. 12 E. DON BERG'S REPORT OF JUNE 18, 1980....................... 13 F. DON BERG'S VISIT APRIL 30, 1981 with K. SCHWARTZ........ 15 G. CONFLICT OF INTEREST--SCHOELL AND MADSON................ 16 H. "BUYER BEWARE" ........................................... 20 - I. SUM.MARY................................................. 21 ii 790 Pleasant View Road Chanhassen, MN 55317 May 2, 1981 City Council Members City of Chanhassen 7610 Laredo Drive Chanhassen, MN 55317 Dear Council Members: This report is a compilation of the letter from the West Pleasant View Road Association of April 6, 1981 to Mayor Hamilton, its letter of April 20 to Art Partridge, and findings between April 20.and May 1. This report represents all neighbor- hood concerns known to -me. The West Pleasant View Road Association does not oppose development of the Wilma Thompson property. At issue is what we feel is misuse of this property. Misuse in the sense of creating massive erosion problems threatening Lotus Lake. Misuse in the sense of urban -type layout in a rural neighborhood. Both of these problems can be solved without denying Mr. Derrick his rights of developing his property. ORDINANCE PROTECTION TO DERRI.CK'AND NEIGHBORHOOD Mr. Derrick feels protected by the ordinance .of 15,000 square foot minimum lot size. 1 \ l City Council -2- May 2, 1981 The neighborhood feels protected by Ord. 47, 914.05c. Approval of the final development plan shall not be granted by the Village Council unless it finds the following: . . . (3) the proposed uses will not be detrimental to present and future land uses in the surrounding area . . . (6) the planned development will not create an excessive burden on . streets and other public facilities . . . (7) the planned development will not have an adverse impact on the reasonable enjoyment of neighboring property. The neighbors do view Derrick's proposed development as "detrimental to present . . . land uses in the surrounding area . . . [as creating] an excessive burden on our streets . . . [and as having] an adverse impact on the reasonable enjoyment of neighboring property." We do not interpret this 914.05c as giving the neighbors the prerogative to inflict its personal wishes on Mr. Derrick. The issue is not one person's personal tastes against another. The issue is whether a person.or corporation has the right in a single stroke to alter an existing neighborhood as to permanently change its character. Besides tripling the traffic on Pleasant View, the layout of this development gives a definite urban appearance in a distinctly rural setting. This neighborhood view is professionally borne out by Mr. Daryl Fortier of Korsunsky Krank Erickson, an architectual and planning firm, in his November 15, 1979 letter to Phil Getts (neighborhood attorney): City Council -3- May 2, 1981 As a design professional, our opinions of development impact often does, and indeed typically must, look beyond the limits developed by zoning ordinances. This is primarily due to the fact that zoning ordinances establish minimum requirements acceptable to the community at large. Such items as density, edges, texture and material -vocabulary are critical elements which vary greatly from neighborhood to neighborhood within a community. These items provide the character; the warmth, charm, and appeal of a neighborhood. . It is our opinion that the Derrick Development proposal for the Wilma Thompson property is not in character with the neighborhood and will have a negative impact. The Pleasant View Road neighborhood is well defined, with a definite low density rural character. Presently there are 24 residences on over 72.8 acres of land for a density of 0.32 units/acre. The Derrick Development is proposing 52 residences on 28.43 acres of land for a density of 1.83 units/acres. The contrast is very evident. A review of their plan and the natural topographic and ground cover conditions, lead us to the inescapable conclusion that the Derrick Development cannot compliment the existing character. With lot widths of one hundred feet typical, the size of residence, building material, and distance between residences will be a sharp, unwelcome contrast. With the amount of construction will come wholesale changes in topographic and ground cover, with an estimated loss of over 50% of the wooded area. Vehicular traffic can be expected to triple. In developing this property, we believe better alternatives are available. This development can potentially be in harmony with the neighborhood and remain responsive to.the lake front. City Council -4- May 2, 1981 Conflicting Ordinances? Mr. Derrick feels protected by the minimum zoning of 151000 square feet. The neighborhood feels protected by Ord. 47, 514.05. The two apparently conflict. While Mr. Derrick does have ordinance rights, his exercise of these rights shall not override the more binding 514.05. This appears to be proven by Ord. 47, 53.03: Sect. 3.03. Where the provisions of this ordinance impose greater restrictions than those of any statute, other ordinance or regulation, the provisions of this ordinance shall be controlling . . . B. CHANGES IN FOX CHASE FROM July 21, 1980 TO PRESENT 1. Common Space August 1979 Public Hearings plat show 3.21 acres of common space. ... July 21, 1980, the common space has been reduced to 93,500 square feet --down from 3.21 to 2.15 acres. April 4, 1981, I measure the common space area to be 1.58 acres. (26% decrease since final approval) April 15, 1981, common space is entirely deleted. Lakeshore footage on this common space changed from 170' at final approval to 50' April G, 1981 to presently being eliminated. 2. Increase in Lakeshore Lots July 21, 1980, there were 7 lots immediately adjacent to the lake. At the public hearing, August 1979, there had been 5. \ l City Council -5- May 2, 1981 April 6, 1981, there were 9. April 15, 1981, there are 10. 3. Trail Easement On July 21, 1980 plat, the words along the shoreline read, "(Proposed) 20 ft. Drainage and Utility and Trail Easement." April 6, 1981, the words along the shoreline read only "Drainage and Utility Easement. April 15, 1981, the wording has disappeared altogether. 4. Lot Sizes Almost every boundary of every lot has changed between the plan of July 21, 1980 and April 15, 1981. In the case of the most southeasterly lot, it has changed from 31,810 (July 1980) to 36,750 (April 15, 1981)-- a 4,9.40 square foot.increase. 5. Straight .road: changed 'to 'curved 'road: Grading In July 1980, the straight road alignment: grading on the westerly hillside began approximately 420'feet from Pleasant View. This left the stand of pines untouched. April 15, 1981, with the curved road alignment, approximately 400 additional feet of hillside is scheduled to be graded, all but eliminating the stand of pines. In addition, gouging appears to be more severe with the curved road than with,the straight. With the curved road, gouges go 4 to 10 feet into the hillside; whereas with the straight road, grading appears to be more of a filling in of hillside dips. Also, on . the curved road grading plan, and additional 2-4' has been taken from the cul-de-sac area on the southeasterly portion of Fox Chase. 6. Lots alonq Pleasant View The July 21, 1980 approval was for three house lots abutting Pleasant View. April 15, 1981, there are 4 house lots. Accentuates density. 7. Private access to Pleasant View Tn July 21, 19'80 none of the three houses were shown with private exits to Pleasant View. City Council -6- May 2, 1981 April 15, 1981, Mr. Derrick has requested that Lot 3 of block 2 (the most northwesterly lot of Fox Chase) have a private exit via the old Wilma Thompson road. This exit is extremely dangerous as it is on a blind curve with perhaps 20' line of sight. 8. Fox Path Exit to Pleasant View It has been a constant concern of the neighbors to have Fox Path exit onto Pleasant View changed to a safer location. The danger of having Fox Path exit at its presently planned location is that it is too close to the foot of the hill --hazardous in w`nter. To build the road as now would require elaborate fill to support the road giving a dike -like appearance with houselots in ravine -type areas on either side of the road. Further, Derrick's plans show that the proposed grade of Fox Path exit onto Pleasant View is 80. Ord". 33 S8.03(c) states, Wherever feasible, grades within 30 feet of street intersections shall not exceed 30. Therefore, the neighbors request that the exit to Pleasant View be moved the Yaidth of one lot to the east and abut the Osgood driveway where the grade is gentle and the line of sight better. 9. Street width and secondary access At the August 1979 Public Hearing, the neighbors went away feeling there would be two roads and 49 lots. April 1980, the Council approved 52 lots and 1 road. No public hearing was called to announce these substantial changes. The single access into Fox Chase is shown to be more than 1100 feet long. Ordinance 33, 58.03(g) states, The maximum length of cul-de-sac streets shall be 500 feet. . . Each cul.-de-sac shall have a terminus of: nearly circular shape with a minimum right-of-way diameter of 120 feet and a minimum roadway diameter of 80 feet. City Council This diversion from cul-de-sac to allow compensated by the be widened from 28' -7- May 2, 1981 Ordinance 58.03 of 500 maximum an 1100 one was apparently fact that the road would need to to 36'. There are several reasons why the neighbors object to a 36' wide street: a. 36' is a collector street. It is three lanes wide. For 36' to go off from 25-28' wide Pleasant View will make Fox Path look like a highway in comparison. An even more glaring contrast would exist between Fox Path and the single-lane.road directly adjacent to it, Ridge Road. Ridge Road would be 1/3 as wide as Fox Path. b. Secondly, a collector street would naturally be targeted for future use as a collector street. That subject has already been settled. To again open the possibility for a collector road in the future would create a traffic volume that would force the widening of Pleasant View --a factor which would have a definite negative effect on the property values along Pleasant View. c. Third, nothing more than a 28' street is necessary if there are two accesses.. Abutting Carver Beach as Fox Chase does, it is a natural to connect a second road to Carver Beach. This has been a much -debated issue about a road into Carver Beach. Always there has been discussion of road grading and tree removal or traffic load on Carver Beach roads. Yet, the following points to what the neighbors feel are the more honest reasons for not wanting a secondary access into Carver Beach. In a letter from Richard B. Thomson as Derrick's "financier" to Frank Beddor, August 23, 1979, "As you know, Carver Beach Addition is no rosebud, and it is difficult to know precisely what caliber of homes someone will choose to build this close to that rather junky area." In Mr. Thorison's letter to Jim Player, October 1, 1979: "I Hope someone will quickly realize that the last thing in the world we want is an access to Carver Beach." l l City Council -8- May 2, 1981 In Roger Derrick's letter to Frank Beddor, October 29, 1979: if . . we have a piece of property which is located between the Christmas Lake/Pleasant View Road and the Carver Beach neighborhoods. This factor is further complicated by the fact that the portion of our property about which you are most concerned immediately adjacent to Pleasant View Road is by far the least desirable portion of the property." In Roger Derrick's letter to the City Council on August 14, 1979, he states, "As the enclosed plan reveals, this scheme provided two means of access into the subject property, which is desirable for public safety reasons." So the picture seems to boil down to this: That two roads are safer than one. Even one cul-de-sac off of Carver Beach serving the woods and one cul-de-sac off Pleasant View serving the meadow and hillside are safer than one 1100 foot cul-de-sac. But, to Derrick's financier, Carver Beach access to Fox Chase is the "last thing in the world" they want. Pleasant View makes a more impressive entrance to Fox Chase. So, at a sacrifice to Pleasant View bearing all Fox Chase traffic and for no safety reasons, but for aesthetics alone, Derrick plans to construct a road spanning approximately 1100 feet across a meadow area to get to the woods rather than connect that same woods with an existing Carver Beach road less than 200 feet from a Fox Chase cul-de-sac. There is hardly a question about whether Fox Chase would have been connected to Carver Beach had that area had the appearance of Pleasant View. We discuss possible placement of a secondary access to Carver Beach later in this report. 10. Minnesota Historical Societv letter of 8-20-79 "It is our opinion that archaeological sites may exist within the project area. Moreover, we believe that this project, City Council -9- May 2, 1981 by its nature, is likely to affect these archaeological sites. Consequently, we recommend that an archaeological survey of the project area be conducted." As of 4-22-81, the Minnesota Historical Society had not received a survey or reply to its letter. 11. John W. Shardlow letter of 8-15-79 to Chanhassen Staff and Planning Commission In Ordinance 47, 914.05, we have: 5. Final Development Plan b. The final development plan shall include: (2) final building drawings and specifications (3) final site plans including.a landscape schedule. Mr. Shardlow explains in his letter -why Derrick can not conform to the above regulations in the Preliminary Development Plan Review: "The primary reason [we are unable to submit for review] is that Derrick Land Co. is not in the home building business." Yet this no longer appears to be the case. On December 30, 1980, Derrick and Wilma Thompson closed on the Foy: Chase property. Derrick, has therefore, owned the property for 4 months. In a neighborhood meeting April 18, 1981, Roger told me that Lloyd Leardahl (builder) had worked closely with him on the amended plat proposal "since before the first of the year." (Apparently, Leardahl is the owner of 30 lots with options on the remaining 22.) April 29,30, 1981, I spoke with at least six different excavation estimators. Three of these happened to be among those who bid on the Fox Chase project. By one who bid on the project, I was told of developer responsibilities working this way: [The discussion was on the process of correcting soil conditions in meadow area to render house lots buildable.] Rather than scoop out all muck City Council -10- May 2, 1981 in valley floor, you only scoop out where houses will be placed. 'Builders can't just put the house anywhere on the lot they want to.' Into this scooped out hole goes fill. This fill is compacted by pounding on it. How much compaction? 'Developer has to show city what square footage of houses are going to be; that determines amount of compaction to be given. This compaction is carefully monitored and measured at grading time [by city engineers?). It is possible for Derrick to now submit house plans by virtue of the fact that he and Lloyd Leardahl have, in effect, been in business together on this specific project the entire period Derrick has legally owned the land. In the case of excavation in the meadow area, it would be mandatory to have "footprints" and square footages (weight) of proposed houses in order to correctly ready the lots for sale. Unless Derrick is made to comply with 514.05 regarding final building drawings and specifications, and final site plans including a landscape schedule, it would appear that he enjoys the exemptions inherent in being a land developer while engaged at. the same time in a quasi -home builder's business. When I discussed this point with Jim Orr and Bill Monk May 1, 1981 in Jim's office, Jim suggested that I was "way ahead" of where we are at this phase of the development. After some discussion, where I sited this ordinance requirement, both Jim and Bill informed me that it was 'not Derrick's responsibility to ready these lots. Struggling for a summary of what they were trying .to tell me,. I said, "So, you're saying these lots are a 'buyer beware' situation?" Jim agreed. Bill said, "I'm afraid so." There is more discussion on "buyer beware" later in this report. City Council -11- May 2, 1981 C. SOIL The attached reports from Riley -Purgatory Watershed District and Carver Soil and Water Conservation District discuss the soil and erosion problems of Fox Chase. The part that has always concerned the neighbors is how one could possibly build in a meadow where water is so near the surface. In fact, it is because of this poor meadow soil that the approved straight road has been realigned. It is secondary, but not incidental, that the road realignment does make everything more attractive in the eyes of many. But the question inevitably arises: where the soil was so poor that a road could not be constructed without excessive cost, how could a house instead now be placed.there? One needs only to check soil borings and look at the grading map to ascertain that water lies very close to the meadow surface. In the Carver Soil and Water Conservation District report of June 18, 1980, Don Berg writes, The second building site limitation problem is the wet Glencoe soils in the low area adjacent to the lake. The subsurface seasonal water table rises to within one foot of the surface at least once a year. To control the wetness problem in these areas, the maximum flood level of Lotus Lake would have to be knoviii, the seasonal high water tablo would also have to be ki-iown, and the bearing strength of the Glencoe roil need,; to be determined. Basement_: would be designed to prevent continuing water seepage problems and also foundation cracking due to low soil strength and frost action. I City Council -12- May 2, 1981 His report is 19 pages. The last 15 of those 19 are _ forms, but Mr. Berg underlined in red those parts pertaining to Fox Chase. On the page describing Glencoe soils, Mr. Berg underlined: Building Site Development: Shallow Excavations: Severe--ponding Dwellings without Basements: Severe--ponding Dwellings with Basements: Severe--ponding Local roads and streets: Severe--ponding, low strength, frost action Lawns, landscaping: Severe--ponding. Permeability: 2/10 of an inch of water in 1 hour. Building, therefore, in Glencoe soils would be nothing short of building in a permanently wet soil --or one where it would take 5 hours to move 1 inch of rain through it. D. EROSION Bob Obermeyer for Riley -Purgatory Creek Watershed District writes in his May G, 1980 letter: The Managers are extremely concerned with the steep grades on the development site and will require a continuous inspection of the proposed erosion control measures. . . . To ensure that the erosion control measures are properly maintained, the District will require that the developer post a performance bond . of $20,000 prior to the commencement of land alteration. In Don Berg's Soil and Water Conservation Report of June 18, 1980, he writes, It i; very difficult- to build holies and roads on the 18-25`; (E) slopes, and almost impossible to develop the 25 to 4010 (F) slopes, as shown on the attached soils map and on the developers contour map, without City Council -13- May 2, 1981 severe soil erosion and sediment delivery into Lotus Lake. When the present tree and grass cover is removed from the 18 to 25% and the 25 to 40o slopes, and cuts and fills are made for the roads and houses, the areas of steep exposed soil will be subject to severe erosion during heavy rainfall periods. The area to be developed needs a detailed soil erosion control plan to show how the sediment from road and utility construction and land grading will be prevented from reaching the lake. Jim Orr has not seen this report. E. DON BERG'S REPORT OF JUNE 18, 1980 (Soil and Water Conservation) When I first began looking into the report referred to above, Bob Waibel told me that Dons.report had not been considered in the Derrick project because "it came in too late." In reading Bob's file, I found that Bob requested the report June 10, 1980. He received it 8 days later. At the time Dob told me it had been received too late, I said, "But it isn't too late now." To which he replied, "But it would cost a fortune for Derrick to comply with that report now; you've got to consider that too." When I contacted Don Berg to discuss his report, he volunteered sending me a copy. It is when I got my copy directly from Don (19 pages) that I realized Bob didn't have any more thl-in t-he first four pages of this report in his files. City Council -14- May 2, 1981 While it is true that the last 15 of these 19 pages are basically forms, the last 5 pages are on the soils in Fox Chase with an attending map color -coded. Parts per- taining to the Fox Chase development, Don had underlined in red. All of this was missing from Bob's file. I brought this report to the attention of the Planning Commission and later discussed this with Jim Orr. He said Soil Conservation Service reports were a "bunch of bologna," that they "don't have a plan,". that Derricks."grading plan is quite a bit different now," that Don Berg didn't get his information from borings on site; that "Soil and Water Conservation used to work for farmers but they ran out of work so they let them get involved in this kind of thing," "they're generalists " "I don't put any stock in it," "SCS doesn't have any authority," and that he [Jim] had not seen the report. I thought it curious that the report our city employee had summoned, our hired engineers refused to look at calling it a "bunch of bologna." I asked Jim if I could pass along some of his comments to others. Ile said, "You sure can; they're the truth!" In the face of Jim's continents, I asked Don Berg why he thought it was that we would bother him for a report that we would treat as a "bunch of bologna." The answer escaped him too. City Council -15- May 2, 1981 F. DON BERG'S VISIT APRIL 30, 1981 WITH K. SCHWARTZ It was sheer coincidence that only two hours from the time I spoke with Jim Orr about the Soil and Water Conservation Report, Don Berg was scheduled to come to my home. He brought his file on Fox Chase with him. In it were a number of maps of the Fox Chase area --one grading plan of 1-28-80. Others, with great detail showing total vegetation, others color -coded to show outlines of different soils. I showed Don the 1-26-81 grading plan and asked him for his opinions. He pointed out two low spots in the main road, Fox Path. Aware that the grading plan was showing only temporary drainage, he wondered what would happen during grading when potentially massive erosion could occur down the slopes. Would the pipe be able to take all the water load? If not, the roadway itself would become a sediment basin or mudhole through which construction traffic would pass. This same concern is borne out in a letter to Don Berg from St_ephcn Wi.duta, Board Representative of the Soil_ and Water Conservation Board, June 13, 1980. The two smaller sediment basins located on the major roadway appear_ to be ru.splaced. Trappi.nq sediment in a proposal- ro idv;ay is unwise since mudholes will likely develop, Hampering construction traffic. City Council -16- May 2, 1981 In addition, the road stability will probably be threatened if all of the sediment is not removed before paving. In any event, details should be provided concerning all berms, sumps and standpipes. The 32° slopes along the west side of the property, were judged by Don to be nearly impossible to sustain bales of hay --that in a swift run off, the hay bales would roll because of poor leverage. G. CONFLICT OF INTEREST--SCHOELL AND MADSON When I first talked with Jim Orr (probably March 1981) I was not aware that Schoell and Madson were hired by Chanhassen. It was so apparent to me that he was pro -Derrick, I naturally assumed he was hired by Mr. Derrick. I was incredulous when I learned Schoell and Madson were our supposed representatives. The following are some recent examples to bear out my feeling of their pro -Derrick position: 1. When I spoke with Jim.Orr_ prior to the 4-22-81 Public Hearing, I apprised him of what the neighborhood was going to present at the public hearing. I specifically recall the conversation relating to our reconunendat _on that we leave a secondary access to Carver Bu ach. I told him I had walked the property where Fo:: Chase iileet:; Carver Bcacli. After several %•✓h it--I-understood-to-be-defensive comments about tree removal and grading that would be City Council -17- May 2, 1981 necessary, he stated that of course Lot 26 was what he [Jim Orr] considered to be one of Derrick's best lots. When this issue then came up at the Planning Commission, Jim went to the map to show the negative of connecting the road from Carver Beach to the Leardahl property (Lot 19). He pointed out the very steep grade that existed between Carver Beach and Lot 19. I had to step forward to show .that we were not asking for that particular location. We were asking for the road to be put at the 920 level between Lots 26 and 27. He conceded. 2. Another point about Lot 19. Both Roger and Jim have tried to prove the impossibility of connecting Carver Beach to Lot 19 by citing the 30' elevation difference between the cul=de-sac in Fox Chase and Mohawk in Carver Beach. They show the 30' elevation over a 138' span, calculate that to be a 220 rise and draw the silent conclusion: clearly prohibitive. What neither Roger nor Jim point out is that in the grading plan, a 14' slice is scheduled to be taken off the top near Lot 19.. This gets interesting, because now, instead of there being a 30' rise in that 138' span, there's now only a 16' That would amount to a 11. S riso. 11.5o is more within reason since Fox Path is currently shown to be 10.79^,--scarcely a difference. between the two. City Council -18- May 2, 1981 I felt it a bit disconcerting that Derrick and Orr had in effect misled both the neighbors and Planning Commission on this issue and brought it up to Jim: I said, "You notice Roger didn't point out what the degree of rise would be after grading." Jim said, "Of course not." To which I replied, "And may'I say, neither did you?" 3. Fox Path has consistently been shown as ending abruptly at the Bennett property line. Everyone knows that the neighbors have been concerned about this because Mrs. Bennett has said both privately and publicly that she feels threatened by this road ending at her property line. She does not want to sell and plans to pass her property to her children. April 22, 1981 the Planning Conunission voted in favor of the neighborhood and passed a motion to establish a permanent cul-de-sac approximately 50 feet from the Bennett property line. This is my concern: From the point of the'how-permanent" cul.-de-sac to the Bennett property (50 feet) there is a 45' rise. It is a question in my mind how a potential road in the future up a 45' rise could ever have been considered beyond a rough draft stage. t1ost disillusioning is to Bear the lane of defense: on this issue by both Bill Monk and Jim Orr. Bill points C� City Council -19- May 2, 1981 there is no question that a great deal of grading would need to be done if Fox Path ever connected westward.. Yet what I before calculated as 11% rise from Carver Beach up to Lot 19 (Bill Monk calculated it to be 140), is a project of such proportion that it should be avoided. 4. When I questioned Jim Orr on the two low spots in the road and learned"that the intake pipe was 48" and then asked him how they knew that could handle the amount of water coming down off half the Fox Chase project, he told me that's why [Chanhassen] hires engineers. Yet it is on this very issue that Don Berg has raised questions in his unread report. 5. I asked what measures had been taken to connect the 12" culvert near the old Wilma Thompson road (near the Whiteman house) to the drains. Gordie Whiteman tells me that when it rains, water from the uplying hills collectively gushes through this culvert "like a fire hydrant" down onto the hillside. After some discussion, I learned that the drain for this culvert is at the bottom of the hill. I was told that it is not Derrick's responsibiliLy to take care of it; that it is a "buyer beware" situaLion �-ahere the buyer has to be sure it drains away from his bascmelit. lI City Council -20- May 2, 1981 H. "BUYER BEWARE" I pointed out the severe erosion behind one of the log cabins on Lotus Drive in Carver Beach. Here, dirt has caved in 6 or more feet away from tree roots and backfill has caved in next to retaining walls. Bill informed me that this issue is currently under legal dispute and that apparently the city is absolved from all responsibility because the culvert above this sunken property has been in its present location for 20 years (longer than the cabins have been there). This seemed to portend that any future Fox Chase landowner will find himself with a potentially similar problem, but with no city or developer assuming responsibility. The West Pleasant View Road Association finds it unconscionable for our City Council to permit Derrick to sell either meadow land or hillside on a "buyer beware" situation. We regret that some of our city staff or those hired by our city, feel "buyer beware" is an acceptable practice. We urge our City Council to set the high standard that we will not knowingly participate in allowing the sale of any land in out boundaries, which is noLhing less than a trap for the unsuspecting. City Council -21- I. SUMMARY May 2, 1981 We have tried to bring to light facts which show the neighborhood is not against a development that would be in keeping with the existing neighborhood. This proposed development appears to misuse the property to such an extent that severe erosion threatens Lotus Lake and lot placement threatens the existing rural neighborhood. (Mrs.) Kathleen Schwartz' for the West Pleasant View Road Association 14 -A� Response to West Pleasant View Road Association lett 5/2/81 from Boo Waibel Draft 1. Land Use - pages 1-3 The report of the West Pleasant View Road Association has presented the position that the Fox Chase plan constitutes a misuse of the subject property "in the sense of creating massive erosion problems threatening Lotus Lake... Misuse in the sense of urban -type layout in a rural neighborhood." It further states that "these problems can be solved without denying Mr. Derrick his rights of developing his property." Since these issues are considerably subjective in nature, the only way I feel that they can be addressed is to give an overview of how development rights can be consistently applied within the spirit and intent of the Zoning Ordinance, and the effects of trunk public improvement construction on the developability of properties. In essence what has given this property and surrounding proper- ties developability status for an urban residential standard is the installation of trunk sewer service. This service was installed to correct existing and eliminate future sanit- ation problems associated with failing on site systems. In recognition that sanitary sewer availability does imply certain developability status, the City has consistently accepted applications for development review. Through the review process development plans are approved or disapproved relative to their compatability with the Comprehensive Plan and city ordinances. As to questions on land use, which ultimately result in final development design, the following section ordinances and plans are most applicable. 19.13 PLANNED UNIT DEVELOPMENT REQUIREMENTS 1. All proposed land developments and all applications for rezoning which contain in excess of 25 single family zoning lots, or in excess of 24 multiple dwelling units, or in excess of 10 acres for proposed commercial or industrial use shall be submitted as proposed planned unit developments and shall be governed by the regulations thereof. SECTION 14. P-1 PLANNED RESIDENTIAL DEVELOPMENT DISTRICT. 14.01 Objectives: The Village being confronted with increasing urbanization and acknowledgin that technology of land development and demand for housing are undergoing substantial and rapid changes intends: 1. To provide the means for greater creativity and flex - ability in environmental design than is provided under the strict application of the zoning and sub- division ordinances without compromising the health, safety, order, convenience and general welfare of the Village and its residents: -2- 2. To encourage the more efficient allocation and innovative use of common open space adjoining residential buildings in order that greater opportunities for better housing and recreation may be extended to the residents of the Village: 3. To provide for the establishment of regulations and procedures for planned residential district develop- ment designed to meet the need for moderate and low cost housing, including the utilization of preconstructed and preassembled dwelling units of a permanent nature without sacrificing quality construction and assembly standards and tax base; and 4. To provide administrative procedures which can relate a planned development district to a particular site and which may encourage the disposition of planned develop- ment district proposals without undue delay. 14.02 Permitted Uses within a P-1 Planned Residential Development District, no building or land shall be used except for the following use: 1. Single family dwellings 2. Two family dwellings 3. Multiple dwellings 4. Townhouses 14.05(5) C. Approval of the final development plan shall not be granted by the Village Council unless it finds the following: 1. The proposed devleopment is not in conflict with the Comprehensive Village Plan, 2. The proposed development is designed in such as manner as to form a desirable and unified environment within its own boundaries, 3. the proposed uses will not be detrimental to present and future land uses in the surrounding area, 4. any exceptions to the zoning and subdivision ordinances are justified by the design of the development, 5. the planned development is of sufficient size, composition and arrangement that its construction and operation is feasible as a complete unit without dependance upon any other unit. -3- 6. the planned development will not create an excessive burden on parks, schools, streets and other public facilities and utilities which are proposed to serve the development, 7. the planned development will not have an adverse impact on the reasonable Injoyment of neighboring property. Subdivision Ordinance 33 a. Minimum Lot Size. The minimum lot area and dimension shall be as specified in the respective zoning districts of the Village Zoning Ordinance, and in addition, the following standards shall apply: a(1). Water and -Sanitary Sewer Areas. In areas served by public water and sanitary sewer systems, the maximum number of lots to be permitted in a plat shall be computed by subtracting from the total gross area of the plat the total dedicated street right-of-way and dividing the area remaining after said subtraction by 15,000 to determine the maximum number of lots permitted in said plat. In no event shall a lot contain less than 11,700 square feet nor have a frontage of less than 90 feet at the building set -back line. No lot shall be larger than twice the average size of lots in said plat. Comprehensive Guide Plan The attached Comprehensive Guide Plan Map indicates the subject property to assume and maintain a single family residential identity. Slow ■ Fit IF IF + -4- In accordance with Section 19.13 of Ordinance 47 the Derrick proposal was reviewed as a Planned Residential Development under the provisions setforth in Section 14 of Ordinance 47. It is quite clear from num erous professional planning sources that historically, the planned district concept was developed for purposes of providing a means to incorporate more immovative design and creativity into new development than was previously afforded by conventional subdivision and zoning ordinances. The framework by which this is accomp- lished is typically found in a goals or objectives statement such as adopted in Section 14.01 subsections 1,2,3, and 4 of Ordinance 47. In interpreting these objectives it is apparent that the only objective which could possibly imply that the planned development concept is to be more restrictive than the subdivision ordinance is objective #1 wherein greater creativity and flexibilit-,.- in invironmental design is to be provided for. However, since all conventional 15,000 square foot lot subdivisions of one acre or more are subject to the same watershed district review for purposes of imple= menting adequate soil erosion control and drainage measures, it is difficult to reason that the planned devleopment concept is to be applied in a more restrictive manner especially with regard to density. Regardless of the previous comments, it should be kept in .mind that the Fox Chase proposal is at a gross density of 1.5 units per acre as opposed to the 2.9 units per acre gross density permiss- able in the Subdivision Ordinance. Questions have been raised in the Pleasant View Road Association letter concerning whether or not the subject development would be detrimental to present and future uses of surrounding properties and that the Derrick proposal would "alter an existing neighborhood as to permanently change it's character," and that the subject development would suppossedly triple the traffic on Pleasant View Road. Regarding the question of the character of the surrounding property, again, it should be kept in fiLi.nd that the subject development is at a gross density of-1.5 units per acre as opposed to 2.9 units per acre permissable in the subdivision ordinance. Until any ordinance amendments or plan amendments are carried out, the surrounding property owners are in a situation whereby they could develope their property to a greater degree (2.9 units per acre)than the Fox Chase proposal (1.5 units per acre). An exception to the above 2.9 units per acre criteria is Carver Beach wherein certain circumstances variances have been given for buildable lots as low as 10,000 square feet. (4.3 units/acre). For . purposes of this response, a detailed verification of whether or not the traffic on Pleasant View Road will triple, will not be gone into. However, as everyone involved "\ -5- recalls, there was an extensive study performed concerning future traffic circulation in the Pleasant View area. Although the staff recommendation for a collector street was disapproved, such is not to be construed to diminish existing property development rights based upon additional traffic generation. 2. Conflicting Ordinances - page 4 To an extent, this is discussed in the above comments. The question is, how and to what extent can or should such pro- visions (Section 14.05 and 3.03) be applied and still guarantee minimal property rights. The manner in which these provisions of ordinances are to be applied to individual development plans is the primary reason for, and keep the review process. 3. Changes in Fox Chase from July 21, 1980 to present - pages 5-10 On July 21, 1980 the City Council moved to conditionally approve the initial final development plan for Fox Chase. The changes since that time have been reviewed as a Final Development Plan amendment by the Planning Commission and City Council in accordance with ordinance 47. The changes in said plan amendment have been individually addressed in staff reports and/or verbally at the plan amendment review meetings. Concerning changes in the preliminary development plan and the final development plan, please refer to the attached letter from the Assistant City Attorney dated May , 1981. 4. Trail Easement - Item #3 - page 5 State law does not permit the designation for trail and conservation easements on the final plat document. The City has consistantly established such easement through the development contract. The final plat document will need to have drainage and utility easements designated in compliance with subdivision ordinance 33 and as per the City Engineer's recommendations. 5. Straight road changed to curved road: Grading - Item 5 page 5 Refer to City Engineer's response of May 18, 1981. It is the recollection of this office that the curved street was presented as not being of any consequence to the prom- inent stand of pine trees in the northwest portion of the property. 2C 6. Lots along Pleasant View - Item 6 - page 5 It had been the recommendation of this office that no individual access be given onto Pleasant View Road for Lot 3 Block 2 of the plan dated April 15, 1981, and that a density transfer be contemplated in the inter- ior of the development. In effect this would reduce the number of houses on Pleasant View Road to three. 7• Fox Path exit to Pleasant View Road - Item 8 - page 6 The concept that the entrance to Fox Chase from Pleasant View road be moved to the northeasterly property line was preliminarily endorsed verbally by this office at the Planning Commission meeting of April 15, and the City Council meeting of May 4, 1981. This concept was also recommended by the Planning Commission at its meeting of April 15, 1981. 8. Street width and secondary access - Item 9 - page 6 Reference City Engineer's response of May 18, 1981. Additionally covered in previous planning reports. Minnesota Historical Society letter of 8-20-79 - Item 10- page 8 The response received in the subject correspondence is typical of what has been received on past development EAW reviews. Prior to this EAW, the City Council had been apprised of the similar responses and there were no archiological surveys required as part of development approvals. If a policy change is contemplated, whereby such surveys are to be performed, it should be made clear as to who would pay for the survey and at what stage of the development review process should the EAW review carried out and archiological survey subsequently conducted. ewc 9• John W. Schardlow Letter of 8-15-79 - Item 11 - page 9 This item addresses the final development plan submittals of architechtural renderings of proposed structures and landscaping schedules. It had been clear from the outset of the review of Fox Chase that the homes would be custom built. In simular situations such as Lotus Lake Estates, Reichert Addition, Near Mountain, and Minnewashta Creek 2nd Addition, it was clear that the City could not influence the architectural style of single family homes beyond what was required in the building code. Typically the covanents and restrictions for such proposals include an architectural review by a committee established by the developer and/or the home owners association. In the sample covenants and restrictions submitted by Derrick Land Company for Fox Chase, such a provision exists. Situations in which the City has received architectual renderings have been primarily for tract housing developers with a limited number of single family styles and variations, and for multiple and commercial and industrial structures. In the past the City has not required landscape schedules for single family homes since such would interfer with individual owners preferances. Landscape schedules have been required for multiple, commercial and industrial structures to insure that a minimal landscaping effort is made. Soil - Section C - page 11 The Soil and Water Conservation Service inventory and evaluation reports simply indicate to all parties in- volved in a development, the conditions as they exist on a large scale. It points out areas of symptomatic soil and slope conditions were, &acceptable corrective measures should be taken to render them developable. Erosion - Section D - page 12 Traditionally, the City has depended upon review by the Water Shed District and the City Engineer to insure that pro- ? per erosion control measures will be implimented in the devleopment and construction plans. In order to receive a land alteration permit, the applicant must prepare and submit a satisfactory erosion control plan, and in the case of Derrick Land Company, they must post a perform- ance bond of $20,000 to assure that erosion control measures are properly maintained. It has been the concern of this office that sufficient monies be posted to cover the need for thorough inspection as this development is being constructed. Additionally, one of the cond- itions of approval is that the building plans for structure proposed in the development be certified by an architect or engineer registered in the State of Minnesota. Don Berg's Report of June 18, 1980 - Subsection E - pg 13 At the time when I discussed the subject report with Mrs. Schwartz, most of my comments were reflex responses based upon a vague recollection of what transpired approximately one year ago. That vague recollection was based upon a rememberence of some very odd circum- stances under which the subject SCS report was generated which are as follows: On June 6, 1980, a letter was received from Mr. Don Berg stating that a Mr. Dennis Marhula was requested by the Planning Commission to review the plans of Fox Chase. Mr. Berg also indicated that any such reviews should be requested by the City in writing. This presented a considerably puzzling situation in that there had been an SCS report done as part of the EAW process a year before this particular request, based upon which Derrick had prepared final development plans, and also that this office had not requested another review nor had any knowledge of any Planning Commission requesting such a review. Without investigating as to who may have requested that the SCS take a second look at the development, I did send a written request on June 10, 1980. The important part of this issue is that final development plans had been developed before the receipt of this second SCS report. Since the second SCS report did not appear to require significant modification to the final development plans, and that many of the erosion control measures recommended in the report were appro- priate considering the terrain of the -Derrick Property, this office recommended that construction of improvements and structures be carried out in compliance with the subject SCS report. With regard to the absence of the last 15 pages of the SCS report, these were removed from the original as this report was being prepared for the City Council packet. Inadvertently, these pages were not returned to the file. Since these pages are simply data sheets supportive to the narrative portion of the report, and that their technical nature would be of marginal benefit for council review purposes, staff has not included such in the City Council packets for this or any other develop- ment proposals. The first sentence on had not seen the soils the July 21, 1980 City the narrative portion and the attendant soil page 14 implies that the City Council map for Fox Chase. A review of Council packet indicates that of the SCS inventory and evaluation map was included for their review. CITY OF CHANHASSEN 7610 LAREDO DRIVE • P 0. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937-1900 MEMORANDUM TO: Don Ashworth, City Manager FROM: Bill Monk, City Engineer DATE: May 18, 1981 SUBJ: Fox Chase The following is in response to the engineering items as listed in a report titled "Concerns of West Pleasant View Road Association", dated May 2, 1981. Page 5 - Item 5 I am presently reviewing the grading plans for both the approved and proposed alignments as prepared by the developer. I will be prepared to answer detailed questions concerning site grading at the Council meeting on June 1. Page 5 - Item 7 Staff has always upheld the position that Fox Path be the only access to Pleasant View Road from this subdivision. Lot 3 of Block 2 does exist as a buildable lot, but site distance restrictions make private access unsafe. Page 6 - Item 8 There is no question that fill shall be required to construct Fox Path near Pleasant View Road. The grade on Fox Path at the Pleasant View Road intersection will not exceed 3% and shall meet ordinance requirements. If the entrance to the plat was moved to the east, the grade on Pleasant View would be better for exiting traffic but sight distance to the east would be reduced. From an engineering view- point, the intersection as proposed is acceptable, although the eastward shift would also be acceptable. Page 6 - Item 9 Based on safety considerations, Fox Path should be wider than the normal 28' because of the sweeping curves and steep grades. Even with double access, the street should be at least 32' wide. Fox Path is a proposed residential street and excess width is not being required to make it an eventual collector. Don Ashworth Page 2 When discussing secondary access from the south, the following items should be noted: - The Roadway system in Carver Beach is marginal at best and additional traffic is to be avoided. - Fox Path could become a collector if Carver Beach traffic had this northerly escape to Pleasant View Road. - Right-of-way acquisition outside this plat would almost certainly be required for a street connection. - Grading and tree removal would be extensive but no worse than on proposed roadways within the plat. Page 10 - Section 11 Comments concerning the "Buyer Beware" issue stem from conversations about the City's responsibility in the area of buildable lots. I stated the City is not responsible to render all lots buildable as a condition of the plat approval, but the City did have a responsi- bility to ensure all structures were built to code as a part of the building permit process. Page 11 - C. Soils Based on available test data and visual field inspection, I am concerned about the poor soil conditions in the lowlands because I understand the extaordinary construction and inspection that will be required. I am convinced a roadway can be built to serve this property although site development costs will be extremely high. Page 12 - D. Erosion Erosion control will be an important facet of this project both during and after construction. Compliance with Watershed District conditions concerning this matter is a requirement of the City on all plats. Should those conditions or a contractor's compliance be found deficient at any time, the Watershed District and/or the City shall require immediate corrective measures. Page 18 - Section 3 A cul-de-sac should be platted where construction of Fox Path is to terminate as a part of this project, and the City should retain the remaining right-of-way to the west for possible future use. There is no question that extensive grading will be required with the westward extension of Fox Path. Page 19 - Section 5 The 12" culvert mentioned shall be reviewed. If drainage problems or the potential for such exist, they would be corrected as a part of this project. r • " : r Don Ashworth Page 3 Page 20 - H. Buyer Beware The City's responsibility varies greatly in different situations. Legal clarification of the "buyer beware" issue shall be left to the City Attorney. ^l< WILLIAM D. SCHOELL CARLISLE MAOSON JACK T. VOSLER DAMES R. ORR HAROLD E. DAHLIN LARRY L. HANSON JACK E. GILL THEODORE D. KEMNA JOHN W. EMOND KENNETH E. ADOLF WILLIAM R. ENGELHARDT R. SCOTT HARRI GERALD L. BACKMAN City of Chanhassen c/o Mr. Don Ashworth, 690 Coulter Drive Chanhassen, Minnesota Gentlemen: SCHOELL & MAOSON, INC. ENGINEERS AND SURVEYORS 38-7601 • 50 NINTH AVENUE SOUTH • HOPKINS, MINNESOTA 55343 May 13, 1981 City Manager 55317 Subject: Kathleen Schwartz Report of May 2, 1981 Pursuant to your request, we herein wish to respond to the above named letter dealing with the Fox Chase development. Mrs. Schwartz's letter was 21 pages long and I wish to comment on engineering related items only. Mrs. Schwartz's letter was negative toward me and our firm. It had allegations of conflict of interest, and questioned my competence and integrity. I do not wish to enter into a confron- tation with Mrs. Schwartz, or to address each of her comments herein. It seems to me that the issue here is the Fox Chase development, not what Mrs. Schwartz or myself feel about each other's respective motives or role. Mrs. Schwartz's letter has some inaccuracies, misstatements, and has taken comments and discussion out of context. Following are responses on certain engineering related items: Page 5, Item 7: Lot 3, Block 2 could have improved site distance assuming some grading and tree removal, plus driveway placement on the east edge of the lot. The advantage of the Pleasant View access is that it aids the effort of saving the Pine tree stand on the subject lot, versus a driveway access from the southeast. Page 6, Item 8: The Fox Path entrance onto Pleasant View does not have an eight percent (80) intersection with Pleasant View Road. As I have told Mrs. Schwartz and shown her the Plans, the intersection f„ SCHOELL & MAOSON.INC. City of Chanhassen c/o Mr. Don Ashworth, City Manager Page Two May 13, 1981 is a three percent (3o), or less, grade from the south edge of Pleasant View to a point 80 feet south where a point of intersection of the vertical curve exists. Her statement that there is non- compliance with Ordinance 33 is false! Concerning the issue of location of the intersection of Fox Chase with Pleasant View Road, the best location with respect to site distance is where it is proposed. On the other hand, if the Council and developer wish to change the location to the east, any site distance problem can be corrected. Page 6, Item 9: Concerning street width, I view that as a policy matter - not an engineering issue in a residential area. Concerning the matter of a secondary access, I have the following comments. This applies to the issue of either an emergency access or a permanent access. I have expressed this view in the past, and feel strongly about it as relates to the typical subdivision. I do not believe there to be a great safety need to have a secondary access. The experiences that the City has had where fallen trees have blocked the road are unique to areas like Carver Beach. The normal residential subdivision does not have great potential for storms blowing trees over the road and thus blocking emergency vehicles. If it did occur, the emergency vehicle (in a typical street section) could simply drive on the lawns around the tree. Downed trees normally occur in the foliage months so snow should not be a problem. Please don't misunderstand that I am opposed to secondary _accesses. I am not, except in the case where it is difficult to achieve. I believe that to be the case in Fox Chase for these reasons: 1) The Carver Beach road system is poor at best. 2) Additional trees would need removal. 3) There are grade problems depending on which connection would be used. 4) Additional right-of-way acquisition would be required in Carver Beach to make most of the proposed connections. SCHOELL & MAOSON, INC. City of Chanhassen c/o Mr. Don Ashworth, City Manager Page Three May 13, 1981 Page 10, Item 11: My comments about the buyer being aware of the lot soil conditions were attempting to convey that the City cannot and does not warrant soil conditions of a building site. The plat review process addresses concerns over soil conditions on the public right-of-way where city streets and utilities will be located. The City obviously has a direct interest in those items, but in terms of soil conditions on the lots, this is between the developer and the buyer. To suggest the City approval of a plat in some way grants approval of soil conditions where a building is to be placed is totally unreasonable and is not done in any city that I am aware of. Nor from the Citys' point of view, should it be. Page 11, Item C: My general comment on Mrs. Schwartz's allegations of not recognizing or using the SCS and Watershed District reports is that they were used, and the City Council's approval was conditioned upon such. The soil conditions and erosion potential are well recognized by us, and the Plans and Specifications prepared for the improvements demonstrate this fact. Page 14: Mrs. Schwartz's comments on this page are totally out of context and contain some false statements. (Example - We did not "refuse to look at" the SCS report as she says.) A question was raised as to the relationship between the SCS, Watershed District, Corp of Engineers, DNR, and City reviews. I was attempting to explain this, and the considerable overlap that exists in this process, and that irregardless of the other agency's review, the erosion and soil problems are considered very seriously in the City's review. I have since talked to Don Berg about the matter and we agree on the above mentioned information. Page 15, Item F: As I have repeatedly explained to Mrs. Schwartz, there are completed construction drawings and specifications for the proposed street and utility work. Continual reference is made to preliminary and outdated drawings that don't represent what is being proposed in terms of drainage facilities, grades, and erosion control. In terms of design criteria, the drainage facilities are designed for a ten-year frequency storm - normal municipal design. SCHOELL & MADSON. INC. City of Chanhassen c/o Mr. Don Ashworth, City Manager Page Four May 13, 1981 Page 16, Conflict of Interest Charge: The allegation of conflict of interest is a common phrase used when trying to discredit another party's integrity. We are working on this project in accordance with specific instructions of the City Council. We have always been loyal to the City, and would be fools to jeopardize our relationship with the City by doing something not in the City's interest. We attempt to do the best job we can in providing good engineering service regardless of who we work for. Perhaps a part of the problem is that we have approached our assigned work from the point of view that Derrick had an approved plan, and that many of the controversial items had already received policy decisions by the City Council. Mrs. Schwartz's approach has been to go through the decision making process again. Page 18, Top Paragraph: I take issue with the statement that I misled anyone. The actual facts related to possible grades of a secondary access off of Lake Point are a 13.5 percent grade would be required. This is based on the actual plans. The hills slope is 17 percent - thus requiring filling to achieve the 13.5 percent grade. It can be done, but it does create some problems. Page 20, Buyer Beware: I have previously commented on this, but would suggest a legal explanation of the City's limits on responsibility for the benefit of Mrs. Schwartz. _ Summary : We have tried herein to present information and response to engineering related items referred to in Mrs. Schwartz's letter of May 2, 1981. We trust that our point of view will be helpful in understanding the real facts. Our desire and intent is to provide any assistance to the City or its residents that we can in order to resolve this problem. Please advise as to questions. Very truly yours, $CHOELL & DSON, INC. JROrr:mkr %� UNITED STATES DEPARTMENT OF AGRICULTURE SOIL CONSERVATION SERVICE County Office Building, Waconia, Minnesota 55387 May 28, 1981 Mr. Tom Hamilton, Mayor City of Chanhassen 7690 Laredo Drive Chanhassen, Minnesota 55317 Dear Mayor Hamilton: I am writing this letter at the request of Kathy Schwartz. Over the past few weeks, she has requested information from me relating to the June 18, 1980 Inventory and Evaluation of Soil and Water Resources of Fox Chase, Chanhassen, by the Carver Soil and Water Conservation District. I reviewed the January 28-30, 1980 preliminary plan of Fox Chase, visited and walked over the site twice, discussed it with Steve Widuta, former State Soil Conservation Board Representative, and Justin Jeffery, Soil Conservation Service Area Engineer, and wrote the report for the Soil and Water Conservation District, as requested by the city on June 10, 1980. Copies of this report were sent to Bob Waibel and Dennis Marhu_la on June 19, 1980. As of this date, I have not reviewed an updated plan and I do not know if soil erosion and soil wetness problems have been resolved to the satisfaction of the city planning commission and city council. I read Kathy Schwartz' May 2, 1981 twenty-one page letter to the Chanhassen city council "Concerns of West Pleasant View Road Association", and I am aware of a second letter being drafted at this time (5-26-81). Sincerely, �6v1 Donald C. Berg District ConserTonist cc: Kathy Schwartz Don Ashworth, Chanhassen City Planner Alfred Fischer, SCS Area Conservationist Justin Jeffery, SCS Area Engineer RECEIVED MAY 2 9 1981 CITY OF CHANHASSEN SECTION IV Schwartz Report of May 26, 1981 SCANNED -- - - - -- - - LL - - - -- - - - - - -- - 1 ■ -uVfL_■ I I ■ 1 � I V ■ 1 I 1 ■ 7 ■ - ■ -0 ■ ' _ _ _ I _ 1 -I " I REPORT FROM WEST PLEASANT VIEW ROAD ASSOCIATION May 26, 1981 TO CHANHASSEN CITY COUNCIL TABLE OF CONTENTS DEVELOPER'S RESPONSIBILITIES ................ ......... CITY COUNCIL MEETING OF APRIL 7, 19 .••... a. Soil Conservation Service ...................... b. Minnesota Department of Natural Resources...... c. Riley Purgatory Creek Watershed District....... Summary and Recommendation ................. CITY COUNCIL MEETING OF JULY 21, 19 ............ OVERLAP OF WATERSHED DISTRICT AND SOIL AND ••••....- WATER CONSERVATION DISTRICT? ...;-•-•- ..... PETITION OF PLEASANT VIEW ROAD NEIGHBOR ............. Page 1 6 7 12 12 13 SUMMARY............................................. WESUBMIT ............................................ CAN COUNCIL CHANGE ITS MIND?......................... ii 13 14 19 20 20 22 5 790 Pleasant View Road Chanhassen, MN 55317 May 26, 1981 Members of City Council City of Chanhassen 7610 Laredo Drive Chanhassen, MN 55317 Dear Councilmen: Fox Chase Development, Your File P-614 This is the fourth report by the West Pleasant View Road Association submitted to Chanhassen. The previous three are included in the Appendix. Material in this report has either not been previously discussed or is presented now in a different light. DEVELOPER'S RESPONSIBILITIES Mr. Marlin Grant, President, Marvin Anderson Construction Company was guest speaker at the May 13, 1981 Planning Commission meeting in Chanhassen. It was here that I heard Mr. Grant tell of his immediate return from Washington where he'had attended the Spring Board Meeting of the National Association of Homebuilders. There, economists had stated that it was their belief that the housing industry would remain in the present depressed state -1- City Council -2- May 26, 1981 for another 2-1/2 to 3 years before returning to normal. Further, the National Association of Homebuilders was advised that if a developer were to file for bankruptcy, they should do so under Chapter 13 which allows one to return to his same line of business afterward. Does it not seem prudent in the face of this impersonal data that the City have some assurance from Mr. Derrick that he is financially capable of finishing this project once he starts? Under normal conditions, one might not need such information because the market would provide the incentive for a developer to finish. But if the market is depressed, what incentive remains? What protection does the City have that it will not be left with a half-baked eyesore? (We are not talking here about the $20,000 letter of credit required by the Watershed District.) The following are some photographs of Mr. Derrick's Far Hill development in Wayzata. The first three show where a dike -like roadway has been constructed to reach houselots from the lowland meadow area. Judging by its raw state and the eroding banks alongside a small water hole, one might conclude that it is work in process, but it has apparently lain in this state for the entire year since the roadway was constructed. City Council -3- May 26, 1981 City Council -4- May 26, 1981 The large hillside on which three houselots are said to exist was previously dense woods but has now been stripped bare of every tree. I could not measure the angle of this very steep hill (picture), but it is clear that it is not sodded. Apparently, it has remained this way for a year as well. 1 aI City Council -5- May 26, 1981 When the road was constructed at the cul-de-sac area in Far Hill, excavating remains were shoved into the adjoining wooded area and left in a slipshod fashion resting several feet up the trunks of trees and creating an unsightly dropoff to the woods. This occurs next to the one of 20 lots that has been sold and built upon. ft City Council -6- May 26, 1981 Surely, the City has the right to protect the rights of surrounding landowners by requiring in its permit a land developing schedule including policing powers to enforce it. CITY COUNCIL MEETING OF APRIL 7, 1980 - At the Preliminary Development Plan Review on April 7, 1980, the minutes read, A motion was made by Councilman Pearson and seconded by Councilman Swenson to rezone the subject premises to P-1 and to approve the 52 lot preliminary development plan as depicted on the Westwood Planning preliminary plat dated April 1, 1980, subject to the following conditions: . On May 20, 1981, I called Bruce Grivna of Egan, Field & Nowak, Fran Hagen of Westood Planning, Paul Blais of Howard Dahlgren's, Jim Orr at Schoell & Madson and none of them knew of or had a plan dated April 1, 1980. Some said they had preliminary plans dated in January 1980, but then it skipped to May 12, 1980. Jim Orr stated, "It is my understanding that we have a copy of all original versions [8] and there is none that is dated that [April 1, 1980]." It appears unlikely that at an April 7 Council meeting they would be talking about a plan dated 4 weeks hence from that meeting. Yet the "May 12, 1980, Revised May 22, 1980" is the one presumed to be subject to approval. By what authority do we use the May 12, 1980 plan to interpret i City Council -7- May 26, 1981 an April 7, 1980 motion? There were 6 conditions attached to the 52-lot preliminary development plan approval, one of which was to be met before the matter was resubmitted to the Council for preliminary plat approval (Appendix). That condition was not met. Condition 1 reads: That the applicant receive approval of their grading plan, drainage plan and erosion control plan from the a.Soil Conservation Service b.Minnesota Department of Natural Resources c.Riley Purgatory Creek Watershed District Condition 2 reads:' That said approvals be received prior to the matter being resubmitted to the City Council for preliminary plat approval. a. Soil Conservation 'Service You recall in our report of May 2, 1981 to the City Council (p. 13) that the Soil Conservation District's report was requested by Bob.Waibel June 10, 1980, received. June 18, 1980 and deemed "too late" to be considered.' On May 20, 1981, Mr. Berg stated to me "if it was the intent of the City to get my approval or disapproval, they do not have it." I had called Mr. Berg (May 20) to discuss the April 7, 1980 Council motion. He said that while they do i City Council -8- May 26, 1981 not have his approval or disapproval now, he would be happy to give an opinion if the City requested it. We then discussed issues that he raised in his June 18, 1980 report paragraph by paragraph. 1. Paragraphs 1,2, page 1 It is very difficult to build houses and roads on the 18 to 25% (E) slopes, and almost impossible to develop the 25 to 40% (F) slopes, as shown on the attached soils map and on the developers contour map, without severe soil erosion and sediment delivery into Lotus Lake. When the present tree and grass cover is removed from the 18 to 25% and the 25 to 40% slopes, the cuts and fills are made for the roads and houses, the areas of steep exposed soil will be subject to severe erosion during heavy rainfall periods. Mr. Berg said these paragraphs are statements of facts. That grading and building on these.18 to 25% and 25 to 40% slopes should be avoided if possible because of potentially severe soil erosion and sediment delivery into Lotus Lake. 2. Paragraph 3, page 1. The area to be developed needs a detailed soil erosion control plan to show how the sediment from road and utility construction and land grading will be prevented from reaching the lake. The plan should also show.overland emergency flow for storms that exceed the storm sewer capacity or if the storm sewer inlets are plugged or frozen. Mr. Berg has not seen a detailed soil erosion control plan; only the preliminary one. The preliminary 'Grading and Erosion Control' plan does not show where overland City Council -9- May 26, 1981 emergency water would be diverted. 3. Paragraph 2, page 2. Will the proposed sediment basin adjacent to the lake provide adequate water detention time and sediment storage? The runoff from .all the graded areas in the construction area needs to be directed through the sediment basin. . . As this will be a permanent sediment basin, provisions to clean out the sediment should be made part of the plan. On the 1/28/80 Grading map, Mr. Berg is not satisfied that the proposed sediment basin will provide adequate water detention time and sediment storage. He's not satisfied that the runoff from all •the graded areas in the construction area will be directed through the sediment basin. If the -City desires, Mr- Berg would be willing to review the engineering design of the sediment basin.. Mr. Justin Jeffery, Area Engineer for Soil and Water Conservation District, explains, "In order to review, we would need design criteria and calculations." Who will be responsible for operating and maintaining permanent sediment basin? 4. Paragraph 3, page 2. Why does the plan show two outlet concepts between the sediment control device and the lake? One is 2 - 24" RCP and the other is a ditch. City Council -10- May 26, 1981 The Preliminary Storm Sewer Plan of 4/25/80 sheet 3/5, shows two 24" reinforced concrete pipes. But the cross-section of that same area shows the outlet for the sediment control device is not pipes, but a ditch. Which is it? 5. Paragraph 4, page 2. The straw bales shown on the plan are not very effective for control -ling sediment from larger construction areas. . . . Mr. Berg does not approve of some of the uses of straw bales. In some areas, they are fine. In others, he disagrees that they will do the job intended. 6. Paragraph 6, page 2. The first constructionwould be the sediment basin. It is clear that unless an adequate sediment basin is constructed first, any grading would be susceptible to being washed into Lotus Lake. 7. Paragraph 1, page 3. If the two sump areas shown in the road are needed, they should be designed as sediment basins and the storage area should be below the road to eliminate road construction and traffic problems. If these sump areas are to control sediment, the road is a poor place to collect sediment. What are these sump areas for? -�` May city council. 3- _ will S. Paragraph 2, Page s above the aria With ut two diverse°n to construct s The th an ficult more Problem may be be very d3- ets , maY Cause Walls le outl ,anent Y to stabilize steep seen diversions requiredhas never Berg states that he Mr- o steep a slope as 36%- ..o_ built on s to the ere s ev In addition ab he states, Paragraph 8, P- 3' cited ove. g - Mr Berg has osi which tion Probi-mitalem are problem °f er on rid building soils in the low seasonal The seCO Glencoe The subsur t o f the is the t to the 1aeo. Within - one .f oo the bearing acen es a Year to be I one needs to water- c table at least Glen�pe soi a be design ems t Sur- face ength °f tBasemewateyo seep aUe Pro' ow soil determen Continuing prevent lion cracking d also f ound cost action - the uld have to investigate and and f wo construction. A soil testing comPan enCoe soils Prior to strength °f the G1 bearing e 4- loam, 2. page Terril l�- paragraphsoil, moderate e remaining toe 11$a Slope sp a as a inherent variabl Thees from 7 rang hazard .and erosion roblem. seepage Seaoval Wetness P continuing Water diking here about a areas unless home - We are t t in these em in ents bull roblem before building- to basem robl to P this P owners are alerted City Council -12- May 26, 1981 11. The remaining 15 pages of his report, specifically the last five pages on the Soil Survey Interpretation, Mr. Berg would be happy to discuss at the Council's wish. b. Minnesota Department of Natural Resources On April 7, 1981 (exactly one year to the day after the Council motion), Kent Lokkesmoe of DNR writes, ". . . this office has reviewed the proposed Fox Chase development plans dated May 12, 1980 and revised May 22, 1980, which were submitted -to this office by Mr. Kurt Laughinghouse on April 3, 1981 [my emphasis]." As Of today, DNR has not given permit approval to the Fox Chase development. This was confirmed to me by Kent Lokkesmoe of the DNR. c. Riley Purgatory Creek'Watershed District Approved May 7, 1980 (see Appendix for copy of May 6, 1980 letter). Conditions 3-6. Of the 4 remaining conditions in this April 7,.1980 motion, three require more research before commenting. City Council -13- May 26, 1981 Summary and Recommendation Because no April 1, 1980-plan can be located (on which April 7 motion was based), and because Conditions 1 and 2 of that motion were not met, we submit that the April 7, 1980 motion to approve the 52 lot preliminary -development plan has not been fulfilled to date. Therefore, it does not stand. CITY COUNTIL MEETING OF JULY 21, 1980 To our understanding, staff should not have allowed Fox Chase to appear on the Council agenda until the motion of April 7 had been satisfied. , Because the April 7 motion was riot satisfied (and to the present day, still is not), any motions made on July 21 on the Final Development Plan are null and void. At any rate, without researching,.two of the 8 conditions attached to the July 21 motion appear not to be satisfied. I refer specifically to items 1 and 2 of Bob Waibel's memo of July 9, 1980: "(1) That a conservation easement be established within the area below the..900 foot elevation." Since the ordinary high water level for Lotus Lake is 896.3 and since DNR's.letter of April 7, 1981 states, "The drainage and trail easement -is inappropriate as it is placed below the OHW," there appears to.be a contradiction which would not allow the motion to stand. City Council -14- May 26, 1981 "(2) That the applicant and its contractors, including home builders, carry out the construction of improvements and structures in accordance with the requirements set forth by the . . . Soil Conservation Service Evaluation Report dated June 18, 1980." (This last statement appears to exonerate Mr. Waibel of his statement to me that .the Soil Conservation report came in too late to be considered.) Whether one responds to the April 7 motion deeming the July 21 meeting legal or illegal,. the July 21 motion has not yet been satisfied either. So however one chooses to look at it, Mr. Derrick does not appear to have approval for 52 lots at the present time. OVERLAP OF WATERSHED DISTRICT AND SOIL AND WATER CONSERVATION DISTRICT? I get the impression from many that there is a general conviction that these two agencies overlap. Further, that because the Watershed District is the one with permit authority, the Soil and Water Conservation is even less vital. Yet in comparing the Watershed permit letters of May 6, 1980 and March 4, 1981 with the Soil and Water Conservation Report of June 18, 1980, as well as conversa- tions with Bob Obermeyer of the Watershed District, I do not feel these agencies entirely overlap. City Council -15- May 26, 1981 Mr. Obermeyer has stated to me that the only thing their office is concerned with is "How is it going to affect the water resources of the district?" As I under- stand it from his and my conversations, the District does not have jurisdiction over whether soil conditions are acceptable, whether or not lots are buildable, or whether there are proper soils for roadway construction. Not knowing the limits of Watershed District's jurisdiction on Fox Chase, -I posed engineering questions to see if their agency acts as a check and balance against Schoell & Madson. Mr. Obermeyer stated that 950-of my questions come under the jurisdiction of the City. He said that if a plan doesn't work, it's the engineer's responsibility; they [Watershed] -.don't check on other engineers. Neither does the Watershed District review whether the pipe sizes on Schoell & Madson's.designs are adequate to take the runoff to Lotus Lake. This last point surprised me because the criteria for.pipe design would directly affect the proper operation of the sediment basin which, in turn, would affect runoff to Lotus Lake. Furthermore, if I as buyer are -first man in and build in the meadow, I need to know that storm sewers are adequate and that there are overflow provisions, .or I.will.have erosion from subsequent builders uphill from me ending up in my yard. 1 1 City Council -16- May 26, 1981 Mr. Obermeyer stated that the Watershed has a very limited budget of $100,000; that they serve a 43 square -mile area; that the District cannot afford to reanalyze every storm sewer pipe that is designed. He said they have to fall back on the person who designed it. I find this curious since both of Mr. Obermeyer's permit letters (May 6, 1980 and March 4, 1981)- request "A. detailed storm sewer plan must be submitted to the District for review and approval." Mr. Obermeyer said they do review storm sewer plans, but that city ordinances dictate sizes of sewers and that the Watershed District has to trust the the engineers have complied with city ordinances. While I can appreciate that the District cannot be held responsible for knowing various city ordinances, it would be interesting to know how one can say he has adequately reviewed a storm sewer plan if he does not know whether pipes such as those affecting Lotus Lake are correctly sized. This is.a poignant issue since the meadow in Fox Chase is a water collector for approximately two city blocks' worth of hills to the west and virtually all 35 acres of Fox Chase. In the analysis of the Soil and Water Conservation report, we have sited 11 issues raised by Don Berg. Briefly, they are these (page 8 of this report for details): City Council -17- May 26, 1981 1. Severe slopes --erosion 2. Overland emergency flow exceeding storm sewers 3. Detention time in sediment storage; amount of runoff from graded areas 4. Outlets between sediment -control device and lake 5. Straw bales to control sediment from reaching lake 6. Order of construction 7. Sump areas in roadway 8. Diversions above cul-de-sacs 9. Glencoe soils bearing strength 10. Seasonal wetness of alluvial soil 11. Soil Survey Interpretation In the Watershed permit letters, 8 points are raised. (Permit letters in Appendix.) 1. Steep grades 2. Hay bales 3. Sedimentation basins in roadway 4. $20,000 performance bond orletter of credit 5. Site grading restored with seed and mulch; 3:1 slopes restored with sod 6. Storm sewer plan 7. Basement floors must be at 901 elevation 8. District to be notified 48 hours in advance of land alteration On only 3 points do the Soil and Water Conservation Report and the Letters of Permit from the Watershed District appear to overlap: (1) severe grades,.(2) hay bales and (3) sedimentation basins in roadway_ On the third point, the two reports apparently disagree with each other. City Council -18- May 26, 1981 On the issue of the $20,000 performance bond, we are interested in knowing the Watershed District's ability to quickly respond. For example, the Watershed states in its permit that 3:1 or greater graded areas must be sodded "2 weeks after completion of land alteration." (We are talking here about the hillside along the Bennett, Cunningham, Whiteman properties.) If Mr. Derrick leaves raw land exposed in Fox Chase as he has in Far Hill (Wayzata), how long will it take for the Watershed to respond (and at whose fieldwork investigation?) by hiring a sodding firm? In other words, how long might one .be concerned with raw, exposed 32-45% slopes? This question has a direct bearing to the threat of sediment into Lotus Lake. Mr. Kent Lokkesmoe of the DNR told me today that the Soil and Water Conservation District are "more expert in control of erosion than myself or my staff." For this reason and because we feel the Watershed and Soil and Water Conservation District do not entirely overlap, the West Pleasant View Road Association asks that the City Council seek Soil and Water Conservation approval of Fox Chase grading plan, drainage plan and erosion control plan. City Council -19- May 26, 1981 PETITION OF PLEASANT VIEW ROAD NEIGHBORS In the minutes of the April 4, 1979 Planning Commission meeting, there are 4 pages (see Appendix) of transcript discussing the petition with 80 signatures, but there is a page missing: the page on which motions would appear. The argument is heard that the petition for 40,000 square foot zoning came in too late. One of the basic issues surrounding this whole development process has always been density. The West Pleasant View Road Association has consistently striven to show by petition, fact and logic, that high density is out of character with the existing adjoining neighborhood. Nevertheless, by default we appeared to be saddled with 52 instead of 49 units, -so -the best we could do was to see that it was done right. It_was .this motivation of wanting Fox Chase to be done right that brought about such extensive research as we have engaged in from February 1981 to now. This was as I stated it to Jim Orr on May 11, 1981 when he asserted that he knew I was trying to stop the project. When I corrected him saying it was not the case, that we were trying to see that it was done right, he immediately began talking about density, zoning and 52 lots. City Council -20- May 26, 1981 I inferred from his comments that something "done right" on this property would necessarily mean less density. That is, in order to accommodate 52 lots on this particular parcel' of land, you just about have to grade it to death. My conclusion was that the only way one could avoid the massive erosion problems that Soil and Water Conservation District point to would be to have less density, thus less grading. SUMMARY All data on Fox Chase appears to boil down to this: 1. That the neighbors were too late with their petition; 2. That research has apparently borne.out that this piece of property is overweighted becausein order to accommodate 52, it would require alteration likely detrimental to Lotus Lake. 3. That Roger Derrick bought this piece of property with the understanding that zoning was 15,000 square foot lots. That Roger has spent time and money because of this understanding. WE SUBMIT . . . Because the 80-signature petition by Pleasant View Road homeowners has an insufficient record on which to base findings, r.. City Council -21- May 26, 1981 Because the information given at Public Hearing, August 1979 was 49 lots and 2 roads and later increased to 52 lots with one road with no notice to neighbors by public hearing, Because we have shown through research and fact innumerable instances of staff inefficiencies, engineer's (Schoell & Madson) conflict of interest, and less than reliable presentations by Derrick Land to Chanhassen, Because no April 1, 1980 plat (on which April 7, 1980 Council motion was based) can be found, Because the April 7 motion with conditions for approving 52 lots have not been satisfied, Because the July 21, 1980 Council meeting should not, therefore, have been called on this issue, Because the July 21, 1980 motion, in any event, has not been satisfied either, We submit that from August 1979 to present, the entire process in the Fox Chase development has been defective. That except for the period February 1981 to present, the neighborhood has basically been deprived of its right to participate. We, therefore, ask that the.City revoke the Special Use Permit issued to Derrick Land and send this back to the Planning Commission where we can start the entire process again --this time, correctly and under careful scrutiny. 1 City Council -22- May 26, 1981 CAN COUNCIL CHANGE ITS MIND? The question of the Council's right to change its mind and rezone after a developer has on good faith begun his developing process by spending time and money appears to be sustained in the case of Kiges v. City of Saint Paul. The Supreme Court, Nelson, J., held that obtaining of building permit, incurring of obligations and expenses preliminary to"actual construction, and surface preparation and excavation did not create vested right in plaintiff precluding application of classification of new zoning regulation prohibiting erection of building where work done prior to enactment of amendment was not sufficient to constitute actual existing structure above ground. This case proves that the City Council has the right to change its zoning regulation on a parcel of property even after someone has bought, and expended time and money to develop it, up to and including the laying of foundations. We, therefore, request that in addition to this issue going back to the Planning Commission and beginning again that we reconsider rezoning this piece of property to conform to the existing neighborhood. Sincerely,. /(,M�r s �. eSchwartz for West Pleasant View Road Association Approved by the West Pleasant View Road Association May 26, 1981. cc: Staff, City of Chanhassen Craig Mertz, Larson & Mertz Derrick Land Development Co. Don Berg, Soil and Water Conservation District Bob Obermeyer, Watershed District 10>✓ I-, April 6, 1981 Honorable Thomas Hamilton, Mayor City of Chanhassen 7610 Laredo Drive Chanhassen, MN 55317 Dear Mayor Hamilton: Re: Fox Chase Development, Your File No. P-614 Members of the West Pleasant View Road Association met with Roger Derrick, Mr. Laughinghouse and Mr. Leardahl April 4-- just two days ago. There, Roger Derrick suggested that the changes he would request tonight from the Council were: (1) realignment of the interior street, and (2) two unplatted outlots which would be platted in perhaps a year. Yet, from my own personal study, I find that far greater changes exist than Mr. Derrick might lead one to believe. Before I list these changes, I give.a slight chronology on Derrick's plat plans since final approval. August 21, 1980. Craig Mertz' letter to Frank Beddor states, "the preliminary plat was approved by the City Council on July 21, 1980 conditioned upon a reduction in the number of lots to 52." December 18, 1980 (5 months later). Roger Derrick's letter to Bob Waibel, "As you know we have obtained Council approval of our preliminary plat for Fox Chase." He then discusses his desired road change as "not a major change and it should not be necessary to appear before the Planning Commission and Council again to obtain the same approvals that we have obtained over the past two years . . . If you and the rest of staff concur, we will instruct Egan, Field and Nowak to prepare the final plat based on the road modification and submit it for processing. . . ." February 11, 1981. Planning Commission meeting discussing Mr. Derrick's "not major change." Advised that such changes would require a public hearing where all would start anew, Mr. Derrick withdraws his request. April 4, 1981. The neighborhood invites Derrick to Edwards' home in anticipation of this April 6 Council meeting in an attempt to reconcile disagreements by 1 Honorable Thomas Hamilton -2- April 6, 1981 compromising with each other. This effort, however, was thwarted when Derrick insisted that the compromise begin from the premise that he had 54 lots. Several efforts were made to reason with him that he had, in fact, only 52 approved by the Council but to no avail. I then took home the plat drawings and compared the two and noticed the following changes between the final approval and the plan the neighbors saw April 4. Changes by Derrick beyond what he suggested to neighbors: 1. Common Space August 1979 Public Hearings plat show 3.21 acres of common space. July 21, 1980, the common space has been reduced to 93,500 square feet --down from 3.21 to 2.15 acres. April 4, 1981, I measure the common space area to be 1.58 acres. This means that from final approval to today, there has been a 26% decrease in common space acreage. Lakeshore footage on this common space changed from 170' at final approval to a present 501. This is a 71% decrease in lakeshore footage of the common area. 2. Increase in Lakeshore Lots The reduction in acreage in the outlot as well as lakeshore frontage meant that two additional house lots (over what was shown at final approval) could now be sold as lakefront lots. In other words, what was at final approval the common property on all the homeowners has partly gone to form two more lakeshore private lots. 3. Trail Easement On the plat submitted July 21, 1980, the words along the shoreline read, "(Proposed) 20 ft. Drainage and Utility and Trail Easement." On the plan shown April 4, 1981, the words along the shoreline read only "Drainage and Utility Easement." "Trail Easement" has been deleted. Honorable Thomas Hamilton -3- April 6, 1981 4. Lot Sizes Almost every between the In the case Mr. Leardahl has changed increase. boundary of every lot has changed plan of July 21, 1980 and April 4, 1981. of lot 10 on the lake (the lot on which himself plans to live), the square footage from 31,800 to 36,750--a 4,950 square foot ORDINANCE 47: Answers Turning for answers to the above, I found: A. I first found what addressed Mr. Derrick's changes: Section 14.06 Amendments. Changes in uses, any rearrangement of lots, blocks, or building tracts, any changes relating to common open space areas, and all other changes in the approved final development plan may be made by the Village Council only after a public hearing . . . B. Then, those sections addressing our neighborhood: Section 14.05c. Approval of the final development plan shall not be granted by the Village Council unless it finds the following: . (3) the proposed uses will not be detrimental to present and future land uses in the surrounding area . . . (6) the planned development will not create an excessive burden on . streets and other public facilities . (7) the planned development will not have an adverse impact on the reasonable enjoyment of neighboring property. Section 23.06.2. That the conditional use will not be injurious to the use and enjoyment of other property in the immediate vicinity . ... nor substantially diminish and impair property values within the neighborhood. You are aware that the neighbors do view Derrick's proposed development as "detrimental to the surrounding area," a "burden on [our] street" and that it will Honorable Thomas Hamilton -4- April 6, 1981 "substantially diminish and impair property values within the neighborhood." This view is shared by Mr. Daryl Fortier of the architectural firm of Korsunsky Krank and Erickson. In his letter of November 15, 1979 to Phil Getts, he writes: It is our opinion that the Derrick Development proposal for the Wilma Thompson property is not in character with the neighborhood and will have a negative impact. The Pleasant View Road neighborhood is well defined, with a definite low density rural character. Presently there are 24 residences on over 72.8 acres of land for a density of 0.32 units/acre . The Derrick Development is proposing 52 residences on 28.43/acres of land for a density of 1.83 units/acre. The contrast is very evident. A review of their plan and the natural topographic and ground cover conditions, lead us to the inescapable conclusion that the Derrick Development cannot compliment the existing character. With lot widths of one hundred feet typical, the size of residence, building material, and distance between residences will be a sharp, unwelcome contrast. With the amount of construction will come wholesale changes in topographic and ground cover, with an estimated loss of over 50% of the wooded area. Vehicular traffic can be expected to triple. In developing this property, we believe better alternatives are available. This development can potentially be in harmony with the neighborhood and remain responsive to the lake front. C. Conflicting Ordinances? Mr. Derrick feels protected by the 1.5,000 square footage minimum and is, I think, galled by the fact that though'.he.pays for 69 sewer assessments, he has approval to build only 52 lots. The neighborhood feels protected by Sections 14.05, 14.06 and 23.07 of Ordinance 47. Honorable Thomas Hamilton -5- April 6, 1981 Do we solve this apparent conflict by turning to Section 3.03? Section 3.03. Where the provisions of this ordinance impose greater restrictions than those of any statute, other ordinance or regulation, the provisions of this ordinance shall be controlling . . . What we are saying is,this: We would like to perpetuate the comradarie our neighborhood now enjoys by working with the developer of this land.- Frankly, many of us have said we find our adversary relationship we now have with the developer to be repugnant to our natural way of doing things. We feel it is logical and based on fact that we request another public hearing so that we may start again, hoping this time to be successful at working together. Thank you for the time you have given -this question. Sincerely, (Mrs.) Kathleen Schwartz for the West Pleasant View Road Association 790 Pleasant View Road 474-5051 790 Pleasant View Road Chanhassen, MN 55317 April 20, 1981 Mr. Art Partridge, Chairman Chanhassen Planning Commission 6280 Hummingbird Road Excelsior, MN 55331 Dear Art and Commissioners: CONFUSION July 21, 1980 the Council approved Derrick's plat with the straight road, 93,500 square foot outlot with 170 feet of shorefront, 20 foot drainage and utility and trail easement and three lots abutting Pleasant View. This approval was made contingent upon Derrick reducing the number of lots from 54 to 52. April 22, 1981, 9 months to the day, we have yet to receive a copy of the plat showing what was approved July 1980. While it is true that April 22, 1981 Derrick has come forth with a plat showing 52 lots, ironically, all the other things mentioned above and approved July 1980 have now been changed. The result is that when one discusses the straight road vs. the curved one, the outlot, the trail, or the three lots on Pleasant View vs. the four now shown and one tries to make comparisons, there is nothing to compare with. This may sound simplistic to even point out, but it is next to impossible to tell where you are going when you -can't say where you came from. 1. Therefore, we request a plat drawing of what was approved July 21, 1980. LOTS ALONG PLEASANT VIEW ROAD The July 21, 1980 approval was for three house lots abutting Pleasant View. It has always been neighbor concern that Derrick's high density is adjacent to our rural setting. Further, Mr. Derrick's current plan shows 4 lots on Pleasant View with the fourth exiting privately onto Pleasant View. This exit is extremely dangerous as it is on a blind curve with perhaps 20-30 foot line of sight. Art Partridge -2- April 20, 1981 In addition, this latest plan would bring that fourth house up onto the flat area near the old Wilma Thompson road; whereas, the July 1980,plan had the house on that lot down in the meadow east of the pine trees. 2. Therefore, we request returning to the July 21, 1980 plat design of 3 house lots abutting Pleasant View. We specifically request that under no circumstance should a private exit be permitted onto Pleasant View from the old Wilma Thompson road due to its terribly dangerous blind exit. ACCESS TO PLEASANT VIEW ROAD It has been a constant concern of the neighbors to have Fox Path exit onto Pleasant View changed to a safer location. Neighborhood stories abound of the danger of that curve being at the bottom of the hill in the winter. Further, Derrick's plans show that the proposed grade of the Fox Path exit onto Pleasant View is 8%. Yet Ordinance 33 Sec. 8.03(c) states,• "Wherever feasible, grades within 30 feet of street intersections shall not exceed 30." 3. Therefore, we request that the exit to Pleasant View be moved the width of one lot to the east and abut the Osgood driveway where the grade is gentle and the line of sight better. STREET WIDTH AND SECONDARY ACCESS As discussed in the Public Hearing August 1979 and as requested by the City Council, we request a secondary access to this property providing all roads in the Fox Chase development do not exceed 281. The current request of 36' would make such a glaring contrast to the present 28' width of Pleasant View, that by contrast Fox Path would look like a highway --certainly a collector road. In addition, the road which now dead -ends against the Bennett property should be made into a cul-de-sac. While we understand that future plans may have been to develop a road westerly across the Bennett property at such time as it would be sold, the entire neighborhood agreed that not only is the 100' drop between the edge of the Bennett property and the current Fox Chase road an unfeasible one to connect, but that a secondary road is needed now. A secondary road leading into Carver Beach would mean Fox Chase residents would have direct access Art Partridge -3- to Chanhassen via Kerber Road for shopping. April 20, 1981 4. Therefore, we request all roads in the Fox Chase development be reduced to 28' wide. And ask that the secondary access be between Lots 26 and 27 of Block 1 (plan dated April 15, 1981). (This is the same location as between Lots 16 and 17, of Block 3 of plan dated May 22, 1980.) SOIL The attached reports from the Watershed District and Carver District discuss the soil and DNR, Riley -Purgatory Soil and Water Conservation erosion problems of Fox Chase. The part that has always confused the neighborhood is how one could possibly build in a meadow where water is so near the surface. In fact, it is because of this poor meadow soil that the approved straight -shot road has been realigned. It is secondary, but not incidental,.that the road realignment does make everything more attractive in the eyes of many. But the question inevitably arises: where the soil was so poor that a road could not safely be constructed, how could a house instead now be placed there? One needs only to check soil borings and look at the grading map to ascertain that water lies very close to the meadow surface. In the Carver Soil and Water Conservation District report of June 18, 1980, Mr. Berg writes, "The second building site limitation problem is the wet Glencoe soils in the low area adjacent to the lake. The subsurface seasonal water table rises to within one foot of the surface at least once a year. To control the wetness problem in these areas, the maximum flood level of Lotus Lake would have to be known, the seasonal high water table would also have to be known, and the bearing strength.of the Glencoe soil needs to be determined. Basements would be designed to prevent continuing water seepage problems and also foundation cracking due to low soil strength and frost action." His: report is 19 pages. The last 15 of those 19 are forms, but Mr. Berg. underlined in red those parts pertaining to Fox Chase. On the page describing Glencoe soils, Mr. Berg underlined: .•, ... � `• - +. - � .' „-M..,.... _ ,�'_..sr«,+..;:.F�Sks"s.k.'�'",'�:�.�.. ..�+�.c, ."�+.Y':^�P?rr.-Y;s'rs.vr.. . fi�e4»w:... . _= 1 j. T.wi@iS:l�� y ..4<•t� - . �!''�Gt1S�� ;'X�{�_ }"t:...t ...." _ '� .. .n_ �, .iT^j. .r�rf-_ •a�Tsr�{:1'. ^_4:t__.�...—. —_.._ _ _ S __� Art Partridge -4- April 20, 1981 Building Site Development: Shallow Excavations: Severe--ponding Dwellings without Basements: Severe--ponding Dwellings with Basements: Severe--ponding Local roads and streets: Severe--ponding, low strength, frost action Lawns, landscaping: Severe--ponding. Permeability: 2/10 of an inch of water in 1 hour. Building, therefore, in Glencoe soils would be nothing short of building in a permanently wet soil --or one where it would take 5 hours to move 1 inch of rain through it. I was told that this report was received too late to be considered for the Derrick project. The report was dated June 18, 1980. Yet the letter from this staff office requesting this report was dated June 10, 1980. Due to the nature of this report, it would seem that one could not in good conscience ignore it. - The neighborhood is strongly opposed to any thought of selling lots on a buyer -beware basis as a matter of social responsibility to future Chanhassen residents. Mr. Derrick states that it is his responsibility to render those low-lying building sites buildable before selling them. What this means is that he will scoop out muck of 2-20 feet deep and replace it. But more than that, add to that replacement another 12 feet bringing soil level to 912. One has only to stand on Pleasant View looking down into those 900 and 902 elevations to be staggered by the prospect of raising it all to 912. 5. We therefore suggest Bill Monk, our City Engineer, consider the ramifications of this meadow -level rise: the aesthetics of it, the settling problems from it, the sodding of such mammoth proportions two weeks following completed grading, and the erosion problems of that 12' cliff which will then be standing next to the wetlands and marsh areas. PERMITS It is apparent from talking with the DNR, the Corps of Engineering., the Watershed District and the Soil and Water Conservation that they have not always been apprised of the changes after Derrick has once had a permit. a Art Partridge -5- April 20, 1981 For example, while Watershed District has issued Derrick a permit January 26, 1981, it was a permit based on the plat drawing which bears no date but which has an outlot of 81,100 square feet. That was the plat submitted to the Planning Commission February 1981 which was that same evening withdrawn by Derrick. Likewise, the grading plan used by the Watershed District was dated 1/26/81--which has now been superseded. The same type of situation exists with the DNR. Kent Lokkesmoe writes in his April 7, -1981 letter to Bob Waibel: This department did receive notice of the original public hearing, but the notice was mailed to the wrong office and contained no plans. With inadequate time to respond and no plans, this Department made no comments. This was unfortunate, but regardless of these facts, a permit is still required for work below the OHW. The same type of situation existed with the Corps of Engineering whose jurisdiction is over wetlands. The Corps was not even aware that Derrick had changed its plans of years ago when there was a proposed tennis court in the meadow. 6. We therefore request alertness in keeping concerned departments apprised of'the progress of this project so that such crucial matters as soil erosion can be constantly monitored. OUTLOT In the August 1979 Public Hearings, the outlot showed 3.21 acres; in July 21, 1980, the.plan showed a reduction from 3.21 to 2.15 acres. In April 4, 1981, the outlot had been further reduced to 1.58 acres and today, the outlot has disappeared altogether. 7. We request reinstatement of the outlot as shown on the July 21, 1980 approval; i.e. 2.15 acres. Sincerely, (Mrs.) Kathleen Schwartz for the West Pleasant View Road Association City Council -21- May 2, 1981 I. SUT-U4ARY We have tried to bring to light facts which show the neighborhood is not against a development that would be in keeping with the existing neighborhood. This proposed development appears to misuse the property to such an extent that severe erosion threatens Lotus Lake and lot placement threatens the existing rural neighborhood. (Mrs.) Kd hleen Schwart� for the West Pleasant View Road Association City Council Minutes, April 7, 1980 Preliminary Development Plan Review A motion was made by Councilman Pearson and seconded by Councilman Swenson to rezone the subject premises to P-1 and to approve the 52 lot preliminary development plan as depicted on the Westwood Planning preliminary plat dated April 1, 1980, subject to the following conditions: 1. That the applicant receive approval of their grading plan, drainage plan and erosion control plan from the Soil Conservation Service Minnesota Department of Natural Resources Riley Purgatory Creek Watershed District 2. That. said approvals be received prior to the matter being resubmitted to the City Council for preliminary plat approval. 3. That the pedestrian and conservation easement portion of the proposed development must be shown by the applicant to have such soil conditions as would allow for the development of such facilities, and that the applicant's soil condition evidence is to be reviewed by the City Engineer. 4. That the applicant prepare cul-de-sac plans for the roadway portion in the vicinity of lot 20, block 3 and lot 24, block 1. Said plans are to be reviewed and approved by the city engineer. 5. Paved street surfaces are to be 36 feet wide and paved cul-de-sacs are to be 32 feet in diameter. 6. That the Park and Recreation -Commission review alternative trail locations between Pleasant View Road and the conservation easement and is to submit a recommendation to the City Council. City Council Minutes, July 21, 1980 Final Development Plan Councilman Neveaux moved to approve the final development plan for Fox Chase Addition subject to items 2, 3, and 4 of the City Manager's report dated July 17, 1980 and items 1-5 in the Land Use Coordinator's report of July 9, 1980. (Motion carried) City Manager's report July 17, 1980 (items 2,3, and 4) 2. The location of the trail is still uncertain at this time, i.e. whether along the back lot lines or abutting the street on the north end of the development. In meeting with the Park and Recreation Commission, the developers have stated their desire to have this decision withheld until grading is commenced and Park and Recreation Commissioners afforded an opportunity to walk both potential locations. This suggestion appears to create some problems in preparation of a development contract (outlining two potential location areas), but no other reasonable alternative appears to exist. However, in accepting the final development plan, it should be clear that the outlot area is being accepted as a conservation area and, as such, no .park.credits are being given. Further, that it is to the advantage of the developer to have the 8 foot trail through the conservation and, whether such be within this conservation area or partially adjacent to the road, that developers agree to grade and install wood chips for the trail in accordance with the recommendations of the Park and Recreation Commission as a part of their overall grading plan. 3. As a part of both the East Lotus Lake Project and Near Mountain development proposals, significant discussion occurred in regards to the City's ability to assure that public improvements are designed and inspected to City standards. In conformance with these discussions, it is recommended that the developer be required to use the City's engineer for preparation of -plans and specifications and all staking and inspection. 4. The above conditions are in addition to those outlined by the Land Use Coordinator in his reports of July 9 and 17, and the Engineer's report of July 7--such disregarding those variances approved by the City Council during preliminary development plan approval, i.e. length of cul-de-sacs and street grades. r Land Use Coordinator's report of July 9, 1980 1. That a conservation easement be established within the area below the 900 foot elevation pursuant to the Comprehensive Plan and that within said conservation easement, a pedestrian -way easement be dedicated that is 8 feet wide with 1+ foot on either side for purposes of maintenance (the above would nullify the proposed 20 foot trail easement indicated on the proposed preliminary plat dated May 12, 1980, with the understanding that the above described easement would be established upon completion of a feasible route within the conservation easement). 2. That the applicant and its contractors, including home builders, carry out the construction of improvements and structures in accordance with the requirements set forth by the Riley Purgatory Creek Watershed District Soil Conservation Service Evaluation Report dated June 18, 1980 (The City Council recommendation is that the approvals be obtained before their revieta of the preliminary plat. For qualification purposes, the Riley Purgatory Creek Watershed District has given a conditional approval in their May 6, 1980, correspondence, however, the Soil Conservation Service, being an advisory body, will not given [sic] such approval. However, I believe such may be satisfied through carrying out their recommendations that were noted in their evaluation report). 3. That extra precautions be taken so that removal of existing vegetation may be kept to a minimum during construction. 4. For reasons of soil conditions and slopes, the building plans for all residences proposed within the subject development should be certified by an architect or civil engineer registered in the State of Minnesota. 5. That the applicant be required to post sufficient escrows to assure that the degree of engineering and inspection is carried out as recommended by the Riley Purgatory Creek Watershed District and the Soil Conservation Service. STATE OF LAC �..� LK DEPAR`irVic�]7 O NATURAL RESOURCES Hetro Region Haters, 1200 Varner Road, St. Paul, my 55106 .PHONE.. 296_7523 Fife No. _ 11rri1 7, 1981 Mr. Robert Waibel Land Use Coordinator City of Chanhassen 7610 Laredo Drive Chanhassen, Minnesota 55317 Dear Mr. Waibel: David Leuthe of this office has reviewed the proposed Fox Chase Development plans dated May 12, 1980 and revised May 22, 1980, yrhich were submitted to this office by Mr. Kurt Laughinghouse on April 3, 4981. Based on this reivew, we offer the following com.nents: 1) Since our lot size requirements have been met in all but two cases (which I will address below), we consider this development to be a reg?ilar sub- division, rather than a planned unit development req izzu ng approval of . the Co=nissioner. 2) The most significant problen, with, this proposal is that the Ordinary High Water Level (OHW) of Lotus Lake is 896.3 (NGVD, 1929). The OHW was recently determined (1978). A comparison of the OHW to the proposed plans reveals that all riparian lots contain some land below the OHW. Land below the 0.15V is basically unavailable for development and should not be considered when calculating lot area requirements. Our require— ment for structure setback or a sewered General Development (GD) lot is 50 feet and must be measured from the OHW. 3) Lois I and 4 in Block 3 (riparian lots) would appear to be less than the 15,000 square feet -we xequire trhen considering the OHW of 896_3. We would recommend changing the lots to meet our requirements. 4) The drainage and trail easement is inappropriate ' as it is placed below the OHM. 5) The plans show a sedimentation basin and storm sewer outlet beloc-,r the OH:%?. This activity along with any grading, filling, or excavation below 896.3 would require a permit from this Department. 6) This Department did receive notice of the original public hearing, but the notice was mailed to the wrong office and contained no plans. F/ith inadequate ^, r AN EQUAL OPPORTUNITY EMPLOYER ��� /LE MR. RODERT t 1ZDEj,. APRIL 71 1981 `�� Page Two .__N time to respond and no plans, this Department made no comments. This was unfortunate, but regardless of these facts, a permit is still required for work below the OHW. In order for this Department to issue such a permit, the proposal must be consistent with all Departmental standards (which includes our standards for shore — land management). Also, it is our understanding that if significant alterations are made to the plans over what was approved by the city, another public hearing must be held. In that case, these comments would be timely. 7) The correspondence dated l-:ay 23, 1980 from me .to Dennis Marhula was.reviewed only with regards to the adequacy of the storm sewer outlet plans, and assumed the plans correctly reflected the OHW boundary. To assist this Department in providing timely comments in the future, I would request that the city provide adequate plans with all notices that require our review. Please mail all notices and plans to the St. Paul. Regional Office at 1200 Warner Road, St. Paul, Minnesota 55106. If you have any questions or comments, please feel free to contact Mr. David Leulhe at your convenience. KLIZ1 cc: Kurt Laughinghouse, Derrick Land Company Steve Prestin, LUMS Dennis Marhula, Westwood Planning & Engineering Sincerely, Ked vLokkesmoe Regional Hydrologist Riley- Purgatory Creek Watershed District O May 6, 1980 8950 COUNTY ROAD EDEN PRAIRIE, MINNESOTA 5534 Mr. Greg Kopishke Westwood Planning and Engineering C0.�.��3c'��s�,,,. 7415 Wayzata Boulevard Minneapolis, Minnesota 55426. �A'(191aD CO Re: Site Grading for the Sunrise Beach Development: Chanhassen Dear Hr. Kopishke: The Board of Managers of the Riley -Purgatory i.reek Watershed District has reviewed the plans and grading and land alteration permit application for site grading fgL-tl�e-Sunrise_Beach-Dbein Chanhassen. The Managers ar�remely_concerned with the steep grades_-bn the development site and will require a continuous —inspection of the proposed erosion con- trol measures to ensure that they are properly maintained and functional until the altered areas on the site have been restored. To ensure that the erosion control measures are properly maintained, the District will require that the developer post a performance bond or letter of security in the amount of-$20,000 prior to the commencement of land alteration With the above noted, the Managers approve of the grading and land alteration -permit for site grading on this development subject to the following conditions: 1. The District will require that all erosion control measures, i.e., staked hay bales reinforced with snow fence, be installed. prior to the commencement -of land alteration and be maintained until all areas altered -on the site have been restored. Once these erosion control measures have been installed, the District's engineering�F-�`� advisor must be notified prior_ to the commencement of land altera-ct�` ion. nd alteration cannot begin until a field inspection of V`.�}� the erosion control measures has been made by thelijistrict_'s engineering advisor. The District will require that the `two temporary sedimentation basins to be located along the north -south roadway be constructed at the, initial stages of grading operations and remain functional during i, the site grading portion of the project. N (� �V � I it r.. I.r L C• b i��.J t/ i J � • A� P,a4e 2 1.ay 6, 1980 r 2. Due to the alteration of steep slopes on the site aind•the potential of a serious erosion problem occurring if erosion control measures are not properly maintained, the developer must post a performance bond or letter of security in the amount of $20,000 prior to the commencement of land -alteration. This security must be submitted and approved by the District's legal advisor. If needed, this performance bond will enable the District to restore altered areas or to install additional erosion control measures to protect the public waters of the District from areas that have not -been restored. 3. All areas altered due to site grading with the exception of the street rights -of -way, must be restored with seed and mulch and/or sod within 2.weeks from -the completion of land alteration or no - later than September 1, 1980. Y Those areas altered with a slope of 3:1 or greater must be restored with sod or w6bd'Jiber.blanket within 2 weeks from the completion of land alteration or no later than September 1, 1980. The areas altered within the street rights -of -way must be restored with seed and mulch and/or sod or be hard surfaced by September 15, 1980. 4. A detailed storm sewer plan must be submitted to the District for r review and approval. If stormwat.er is to be discharged to Lotus Lake, an MDNR Chapter 105 Work in Public Waters Permit will be regdired. 5. The 100-year flood elevation of Lotus Lake is 899. The District will require that all homes to be constructed adjacent to the lakle A' have minimum basement floor elevations 2-feet above this 100-year flood elevation. If you have any questions regarding the District's comments, please contact us at 920-0655. Sincere y, / CCA111 Ro ert C. Obermeyer BARR ENGINEERING CO. Engineers for the District Approved by etheBand of Managers RCO/111 EEK TERSHED DISTRICT cc: Mr. Conrad Fiskness Mr. Frederick Richards PEY-PURG Secretary Mr. Bob Weibel Date: VV Riley- Purgatory Creek Watershed Distri, 8950 COUNTY ROAD EDEN PRAIRIE. MINNESOTA 55- March 4, 1981 Mr. Fran Hagen . ,�p1�121314;,1j .. Westwood Planning & Engineering 7415 Wayzata Boulevard rN.. MART°3� �- Minneapolis, Minnesota 55426 co• c ,n RECEIVED VILLAGE )OM +U Re:- Permit Extension Request - Sunrise Beach/ C�-CxAt�xrsS�i.41, Fox Chase Development: Chanhassen Dear Mr. Hagen: The Board of Managers of the Riley -Purgatory Creek Watershed District has previewed the revised plans and request oJf January 27, 1981 for an extension of the District's grading and land alteration permit for the Sunrise Beach/ Fox Chase Development in Chanhassen. The Managers approve the permit extension request until September 15, 1981 subject to,thefollowing conditions: 1. All conditions stipulated in the District's original correspondence of May.6, 1980 remain applicable.-. 2. Because of the alteration of steep slopes on the site and the potential of a serious erosion problem occurring if erosion -control measures are not properly maintained, the developer must post a performance bond or'letter of security in the amount of $20,000 prior to the commencement of land alteration. This security must be submitted and approved by the District's legal advisor_ If needed, this performance bond will enable the District to restore altered areas or to install additional erosion control measures to protect the public waters of the District from areas that have not been restored. 3. The District requires that additional erosion control measures, i.e., staked hay bales- reinforced with snow -fence, be installed between the proposed sedimentation basin and Lotus Lake. These erosion control measures must remain in place until -all altered areas have been restored. - 4. A detailed storm sewer plan must be submitted to the District for review and approval. -- Mr. Fran Hagen ff9w� -- _ _ _--- -- -. - - _ _-' • ; . 'Page 2 —= ',i'arcb 4, 1981 S._' All areas altered because of site grading must be restored with seed and disced mulch, or sod, or wood fiber blanket, or,be hard surfaced .-. . - • r_ -1 -1_- _L 1 Planning Commission Meeting April 4, 1979 -5 Craig Mertz - You don't like the idea of having different lot sizes for different areas in the city? Mal MacAlpine - That's correct. Craig Mertz.- You would like to have a city-wide uniform minimum r lot size. Mal MacAlpine - With the exception I feel there should be "estate:" type areas but I think when somebody comes in and buys a home and they happen to buy out in the country and it happens to be underdeveloped, you are naive if you think it's never going to be developed. I think you hope it lasts for your lifetime but that isn't reality. Roman Roos - We, on the Planning Commission, without a doubt, feel that an area that is undeveloped and I am not talking about Pleasant View, I am talking about an area that's undeveloped, we could,without having the problem of spot zoning, say that this is going to be that type of unit. Now that's totally within the realm of our - overall comprehensive plan. There is a definite need but it's hard for me to relate to the need of those people in that north area. Mal MacAlpine - Speaking to this issue right here, I think it's spot zoning. I am not too sure it's the best land usage. Where it may be good for the people that are presently living there, I think it is limiting the people that may want to move into Chanhassen that can only afford a 15,000 square foot lot. I think that the developers that are coming into Chanhassen are abiding by our ordinance and also it isn't as if anything illegal is being done. On the other side I guess I think these people that were here tonight should know exactly how far they can go to at least be heard. If I vote against it or if the Planning Commission votes against it, it obviously has to go to the council, I think they should go to the council because we are obviously not the last word. We can only make a recommendation to the council and I think if I felt the way they felt I would go to the council. I think the Planning Commission should determine how it feels. If we all feel the same way then it's obviously that we submit the petition to the council with our feelings. Roman Roos - Let the council charge the Planning Commission as to what they might want to do in respect to it. Mal MacAlpine - The council could turn it back to us and it will probably come back to us and say let's have a public hearing. Pat Swenson - I can understand their problem so -well because it is indeed a unique piece of property in the city as far as the view is concerned. It would appear to me, I ftdon't really understand how we can do anything -until we know what the recommendations are going to be on this east/west corridor because if there is any conceivability that this could be changed into 40,000 obviously this eliminates or it would seem to eliminate this particular area from any traffic thing. Mal MacAlpine - There is going to be a lot of developments south of that. I think there is still going to be a need •Planning Commission. feting April 4, 1979 -6- for a collector going somewhere. Pat Swenson - The comparison that was brought out about the 40,000 square feet in Shorewood, not that I think we have to follow Shorewood, all these things do weigh on my problem and I guess maybe I am not quite as liberal as you are,Mal. I just feel that sometimes not everybody can afford to live in every neighborhood they want to. If there are areas that are set aside like that and one of the others can't afford to buy it then that's unfortunate, fortunately we are in a country where people can rise as far as they want. Mal MacAlpine - I would agree with that if that area was developed that way: Pat -Swenson - I am concerned about the fact that there has been so :much work done already with three developments that we have discussed and that these people have tried to conform. I would have to ask the council what their thinking would be on how can we explain to them that we are suddenly backing off or thinking about backing off. Mal MacAlpine - I thing there is a lot of people that live there on lots 40,000 square feet and larger that have lived there a good many years. They can only afford that because they have owned that property a good many years. , Bob Waibel - One of the spin-off affects of this is when you are lowering the density aggregately on a -metropolitan basis and the demand for housing and commercial is still there, it makes for" a push against the existing sewered area and it goes into another capital expansion program for the city to supply that demand, yet -- there still is the policy uncertainty of the Metropolitan [caste Control Commission which may restrict any more extensions of these facilities even within the MUSA Line as -we -have learned from the 208 Study. Roman Roos - Is not the assessments of the north sewer area right now based on what we feel to be real in terms of 15,000 square foot lots and that's an important consideration also. - - - Mal MacAlpine - The people -that live on the 40,000 square foot lot now -that have been'assessed-, are they -assessed for three? Craig Mertz - They were assessed -"for one plus a square foot charge based on the area of the lot. If they came in to subdivide it, they got a credit for.their area charge but were added units. Mal MacAlpine - Somebody moving in now would not have that same right. Craig Mertz —Right. Jerry Neher ft Due to the fact -that I have lived in Chanhassen as many years as I have and going through this petition, many of them I know. I do know if they had to purchase 40,000 square feet today, with the assessments that are on it, they would not be able to afford to live in that area. I am very concerned for three particular reasons. Number one is the spot zoning.: Number two is,some place along the line those utilities in the ground are going Planning Comm-i sslon meeting P.pril 4, 15779 dC to have to be paid for. If we put a restriction of 40,000 square feet on those lots you are going to slow down the development by eliminating probably 60 to 70% r of the market that are buying homes today and probably more to the point where the city is not going to be able to meet the obligation of -those bonds and we will be like New York City. --I do sympathize with the people that -live out there. I once had a big piece of property myself and I hope to get back to it when I retire but it's not going to be this close to the city. You just can't stop progress and by limiting people economically, it's not the way to go in my opinion, and that's what you are in effect doing. Mal MacAlpine - I also think if we were to say we are recommending a 40,000 square foot and somebody that's lived there for 25 years and the assessed valuation of the home quadrupled equal to the new home that just went -up, do you think they would accept that? No way. They just wouldn't. You can't have it both ways is what I am saying. Jerry Neher - If at the time that these bond issues come due and there is not -enough development in that area to pay up what is due, does that go on the general tax? Craig Mertz - It either has to come out of the general fund or in the alternative, the city council would have to hold a reassessment hearing and divvy up the short fall among all of the people living in the project area at the time of the reassessment. { Pat Swenson - At the time that the water and sewer utilities went in, the 15,000 square foot minimum was enforce at that time, were the people in this area aware of the fact that the assessments were put in based on that type of criteria?. - Craig Mertz - Yes. - - Pat Swenson - Then actually the time to have made this petition would have been at that particular time when all the adjustments from thence on could have been made. Bob Waibel - Right. Craig Mertz - We are talking about a standard that's been in effect for ten years. - Bob Waibel - The collector street the same way. That's in the comprehensive plan that was adopted in 1968. Roman Roos - I would echo your sentiments about spot zoning and of course I would echo Pat's sentiments about Shorewood being 40,000 square foot: Without a doubt I think we need an area of "estate" type, 40,000 square foot lots or greater, but I don't think it should be in an area that is developed such as the Pleasant View area. I would like the council to be quite aware that those that re here tonight were solely located along Pleasant View. That the area that they are talking about is running from County Road 17 to Highway 101. There are a lot of issues that have to be answered before we could take a look at the 40,000 square foot zoning issue but , I guess I would have to say at this time I would not go along with that. We would have to stick to the 15,000 square foot that we have at`this time. I would like to see the council note these comments and note the petition • ' KIGES v. CITY OF SAINNT PAUL Cite ne. i_^ N.W.2d 3G3 tLcn residing; that petitioner returned each ,-car to help the Fredericks; that he paid the ntcdical expenses of 'Mrs. Frederick at tl;t• ?Mayo Clinic in Rochester shortly be- fore her death; and that he had often paid for equipment on the farm. Cora Allen testified by deposition that she knew the Fredericks during; 1907 and 1908 j:Ut prior 'to petitioner's arrival at their that at that time they had told her fliat they "had agreed to adopt Burton"— ILat they were "going; to legally adopt Bur - ion" if they "could have full charge" -that 6cy were going to. take him as their own ,on; that in her presence and in the pres- rnce of Airs. Coon, after- her arrival at i';tttlkton with petitioner in January 1908, ,Ircedent had stated that he "had agreed to „dopt Burton"; and that in 1933 he had .fated to her that he was leaving "all he EA" to petitioner. ]n op osition to the foregoing, respond- nts submitted testimony that petitioner had Ahvays used the name "Burton Roe"; that l:r had designated his brothers and sisters his "next of kin" in his war risk insur- ance policy; and that his brother Harry 11:u1 signed the written consent requisite ~lien he enlisted in the Navy in 1917. 131 From the foregoing resume of the (%ldrnce, we are convinced that the findings = :d judgment should be affirmed. It ap- ars far stronger than that submitted in ::In)lher of like cases in which Nye held evidence was sufficicnt to support a rag that a contract for- adoption ex- .1, In 're Estate of Firle, 197 Alinn. 1, 265 818; Fiske v. Lawton; 124 Minn. 83, Laird v. Vila, 93'Minn. 45; `'► X.l1'. 656; and, llkelvise, in a num- t,f cases where the supreme court of -rill Dakota deterntined a contract of "' Ii n, to exist. Walsh v. Fitzgerald, 67 ` It (.23, 297 Nt.W! 1675; Rhode v. •Farup, S-1). 437, 293 NAV. 632; Gravning v. 62 S.D. 139, 252 N.!!'. 13. , J:, took no part in'thc con - or decision of this case. ntllin. uUJ KIGES V. CITY OF SAINT PAUL et al. No. 35765. Supreme Court of .Minnesota. . Dec. 31, .197,3. Action by property owner against city and others to have building permit de- clared valid, to enjoin interference with work of construction pursuant to building permit, and to enjoin enforcement of zon- ing ordinance. The District Court, Ramsey County-, Albin S. Pearson, J., entered cer- tain orders favorable. to defendants and plaintiff appealed. The Supreme Court, t Nelson, J., held .that obtaining of building permit, incurring of obligations and • ex- penses preliminary to actual construc- tion, and surface preparation and excava- tion did not create vested right in plaintiff precluding application of classification of new zoning regulation prohibiting erection I of building where work done prior to en- actment of amendment was not stiff-cicnt to constitute actual existing structure above ground. Affirmed. I. Municipal Corporations C-601(lo), 625 Ordinances dividing cities into residen- tial and business districts and limiting use of realty in each district to certain pur- poses will not be declared unconstitutional unless it affirmatively appears that restric- tion is clearly arbitrary and unreasonable and -without any substantial relation to pub - lie health, safety, morals, prosperity, or gen- eral welfare. AI.S.A. § 46Z 1S. 2. Municipal Corporations 0-601(7) Zoning ordinances which are fair in their requirements are sustained as exer- cise of police power. ALS.A. § 462.18. 3. Constitutional Law 0-70(3) ! Exercise of police power is legislative, and legislative policy in respect thereto is not for courts unless personal or property 8G4 hIllin. 62 NORM WESTERN REPORTER., 2d SERIES rights are constitutionally affected by such exercise. M.S.A. § •162.18. 4. Municlpal Corporations 0-122(2) In determining validity of municipal zoning ordinance, it is presumed that legis- Iative body investigated and found that conditions were such that ordinance was appropriate. ;tI.S.A. § 462.18. 5. Municipal Corporations Cr 63(1) Action of city comicil in zoning field, in exercise of police power, is legislative. M.S.A. § 462.18. 6. Municipal Corporations C-63(i) If Validity of legislative classification for zoning purposes is fairly debatable, the legislative judgment must be allowed to control. M.S.A. § 462.18. 7. Municipal Corporatlons,0-601(15) - Failure to act on rezoning petition merely caused petition to expire with no adverse effect, and did not bring into op- eration provision of zoning ordinance for- bidding further petitions to rezone proper- ty within six months after rejection of like petition concerning same property. M.S.A. § 462.IS. 8. Municipal Corporations C-601(7) lilere change of municipal council poli- cy will not justify court in declaring legiti- mate zoning ordinance to be void. M.S.A. § 462.13. 9. Municipal Corporations 0-601(18) Municipal building zone ordinance re- quiring acquiescence of two-thirds of Owtl- ers within 100 feet of real estate affected by petition for reclassification, requires acqui- esccnce of two-thirds of owners within 100 feet of outer perimeter of entire area of land affected by zoning provision. ALS.A. 10. Statutes C-190 Where language' of statute embodies definite meaning, court should not nullify obvious requirement by construction.' 11. Municipal Corporations GG21.63 Owncr's .-building permit Wl:iclt re, quircd work to be done above founditin» r,f proposed building, within three montli, fr„ t date of issuance to prevent expiration „I permit expired where no sucli work ��;,► done in three month period after issuant.% notwithstanding that failure of rcynirrd construction progress Nvas duc to repratr:; suspension orders issued in connection petition for rezoning area within -which pto. posed building site was located. INLS 1. y 462.18. 12. Municipal Corporations 0--63(2) Court will not examine into wood fai;u of municipal council in proceeding on pui- tion for amendment to zoning ordinance re- quirements unless council proceeded in un• reasonable, arbitrary, or discriminator; manner .under established limitations upon police powers. \i.S.A. § 462.18. 13. Municipal Corporations G601(3) While all zoning regulations mast be in accord With the general comprehensive plan, they should be made with view to en- couraging most appropriate use of land. M.S.A. § 4452.18. _ 14. Constitutional Law 0-101 Obtaining of building permit, inctirriug of obligations and expenses preliminary to actual construction, and surface prcpara- tion and excavation did not create vestal right in permittee precluding application of classification of new zoning regulation pro- hibiting erection of building -where -ork done prior to enactment of amendment waJ insufficient to constitute actual existing structure above ground. M.S.A. § 462.18• 15. Municipal Corporations Q�-80 City attorney is : not member of cite council and only acts in capacity of its ic- gal advisor. 16. Municipal Corporations 0=zG21.13 Acts of municipality relative to is`t' ante of building permits under zoning onli• nances for construction of commercial Of IiIGES v. CITY OF SAINT PAUL Minn. 3G5 Cite us 62 K.11'.L'd 363 t-.idence property fall Nvithin its govern- ,•;rnt:l rather than proprietary functions ,•rl estoppel will not 17•; against it for its :c,.c or those of its subordin::cs performed ,s connection therewith. ?�LS.:1. 462.18. 17. Municipal Corporations C=>621.13 Letter written to city council by city atorney regarding, questionable validity of l-;•tition requesting amendment to zoning ,4,11nance to prohibit owner from building core upon his property, and continuing sus- 1•cnsion of owner's building, permit, did not c.;,)p city from further interference with eu•ner's building plan. ALS.A. § 462.18. 18. Appeal and Error e=544(3),-.931(I) Supreme Court must search record to ::+certain whether an erroneous rule of law h.is been applied and act accordingly, but ,•n appeal It must consider testimony in fight most favorable to prevailing party. 19. Appeal and Error C=1008(I), 1012(I) When action .is tried by court without jury, findings of -fact are entitled to same Height as verdict of jury and will not be r-ersed on appeal unless manifestly. con- trary to evidence. Syllabus by• the Court I. Zoning regulations are to be- sus- tained as a legitimate exercise of the po- 1117c power in the absence of a showing of 'rl,itrary, discriminatory, or unreasonable •;Tlication of , their restrictive . provisions. the rezoning procedure adopted by St. Patil cit}• council in the instant case x;ts neither arbitrary, discriminatory„ or °"ruasonable in its application to the prop- erty of the plaintiff. 2• Failure to act .on a rezoning peti- 1:,,11 merely causes such petition to expire * !h no adverse effects, and does not bring oherat ion. the. provision of St. Paul ltail,ling Zone Ordinance No. 5840, 't as amended, which forbids further pc- ':t'"rts to rezone property within six months "'t'r rejection of 'a like petitior► eonccrrt- ''i the same property. 3. St. Paul Building Zone Ordinance No. 5540, § 23, as .upended, %which re- quires the acquiescence bf two-thirds of the property oi;ners N"thin 100 feet of the area to be rezoned, refers to those Owners with- in 100 feet of the outer Pcrinrrlrr of the entire area to be rezoned rather than indi- vidual areas of more restricted size with- in the total area. 4. , 'A building permit expires by limi- tation after three months from the date of issuance under St. Paul Building Code Or- dinance NO. 7210, § 2-3(c), and the lim- itations and restrictions implicit in the per- mit itself, if no work is done above the foundation of the proposed building during such three months 'Period- irrespective of the fact that the failure of required con- struction progress was due to repeated sus- pension orders issued in connection with petstioris for rezoning the area --,vith:n I.yhich the proposed building site is located. 5. The obtaining of a building permit, the incurring of obligations and expenses preliminary to actual construction, and sur- face preparation and excavation do not create a vested right in a permittee .which would preclude the application of the clas- sification of a new zoning regulation -pro- hibiting the erection of the building unless the work done prior to .the 'enactment of the amendment was sufficient to constitute an actual existing structure above the ground. 6. .-The acts of a municipality relative .' to the issuance of building permits under a zoning ordinance fall within the govern- mental rather than proprietary functions of such municipality; and in consequence es- toppel will . trot lie against it for its acts performed in connection therewith. ' . 7• On appeal this court must consider the testimony and evidence in the light most favorable to the .prevailing party. Where an action is tried by a court without a jury, its findings of fact arc entitled to the same weight as the verdict of a jury and: will: not be reversed on appeal unless they are manifestly -contrary to the evidence. 3f.G Minn. 62 NORTH WESTERN REPORTER, 2d SERIES Alurnane & Afurnane, St. Paul, for ap- cated as provided in applicable regulati,a;, pe1Lant. prescribed for such use districts. Timothy P. Quinn, City Atty., Louis P. Building 7-one Ordinance No. 5Sl(t { Sheahan, Asst. City Atty., St. Paul, for re- 23, as amended, contains the folio„•ital; pfr,. spondents. visions for the reclassification of real tatc by amendments: NE JSON, Justice. Plaintiff instituted suit against the city of St. Paul and others to have a building permit declared valid, to enjoin the defend- ants from interfering with the work of con- struction pursuant to a building permit is- sued to him on June 15, 1950, and to enjoin enforcement of a zoning ordinance adopt- ed by the city council of St. Paul on Feb- ruary 6, 1951. The plaintiff ol,tained a tem- porary writ of injunction from the district court. After trial without a jury, the court handed down findings of fact, conclusions of law, and order for judgment in defend- ants' favor and dissolved the temporary writ of injunction. Following the dissolution or- der the plaintiff made alternative motions for amended findings of fact, conclusions of .law, and order for judgment or for a new trial and also made a motion to vacate the order dissolving the temporary injunc- tion. The court denied all motions of plain- tiff and he filed his appeal therefrom. The city of St.. Paul, through its city council, enacted a comprehensive zoning ordinance which became effective August 22, 1922, known as St. Paul Building Zone Ordinance No. 5840. This was enacted under the authority of L.1921, c. 217, -which was later amended by L.1923, c. 364. Building Zone Ordinance No. 5840 regu- lates the location of trades and industries and the location of buildings for specified uses for the general. promotion of public health, safety, order, convenience, pros perity, and general welfare. It divided the city of St. Patel into six classes of tise dis- tricts; namely, "A"residence district, "B" residence district, "C" residence district, commercial district, light industry district, and heavy industry district, and provided that no building or premises shall be erect- ed or used for any purpose other than a purpose permitted .in the use, district in which the building or premises shall bd lo- "Whenever .the owners of 50 0 or more of the frontage on any street in any district or part thereof shall pre. sent a petition, duly signed and ac- knowledged, to the City Council re- questing an amendment, supplcmcn;, change or repeal of the regulations I;rc- scribed for such districts or part there- of, * * * it sliall be the duty of the Council to vote upon said petition «•ithin 90 days after the filing of the same by the petitioners with the City -Clerk; * * *. "Such amendment shall not be passed where it will alter the. regulations or plans herein contained, unless the own- ers of two-thirds of the several de- scriptions of real estate situated with. in one hundred feet of the real es- tate affected shall have acquiesced therein, and unless two-thirds of the full membership of the Council vote in favor thereof; ." * * * the proper filing of a suf- - ficient petition for- the amendment of this ordinance so that any district or portion thereof sliall be thereby re-clas- sified and placed in a more restricted district or a district of higher classifica- tion, with the requisite written acquics- cence of the owners of adjacent proper- ty, pending the' determination of the Council thereon, shall be deemed effce- tual to suspend the right to initiate any use in or upon the premises sought to Lc reclassified or any portion thcrnd which would not conform to the regula- tions hereby prescribed .for the prr posed reclassification." Plaintiff had purchased lot 4, block �• Midway Highland. Park Addition, in t' year 1949 for the sum of $3,500 for the V " pose of erecting and operating a retail �'Y On June 27, 1950, pursuant to Building Zone Ordinance No. 5M, § 23, a peti- tion for rezoning of land including the plaintiff's lot, accompanied by the requisite acquiescence of property owners within 100 feet, was presented to the city council and filed with the city clerk. The first petition was duly referred to the board of zoning for investigation and a report back to the city council within 30 days. The area covered included .lots 1 through 8, block 3, Midway Highland Park. The staff members of the city planning board conducted an investiga- tion and reported to the board of zoning on July 10, 1950, that the singling out of a single bloc]. for rezoning 'night be con- strued as arbitrary, that the zoning in a large area was out of adjustment, and that a. comprehensive plan would be more appro- priate. On the basis of this report the board of zoniii recommended that the first Petition be denied but indicated that they would entertain a petition to rezone lots involved in the petition with the exception of lot 8 belonging to the plaintiff. A report KlGrS v. CITI OF SAIINT PAUL ..111nn. 3G7 Cite as i 2 x.w.sLl 3a3 cleaning establishment thereon. From Au- gust 22, 1922, until the. year 1925, lots 1 to 15 inclusive in block 3, Midway Iighland Park Addition, had been classified as "A" residence district, subject to all restrictions imposed by Building Zone Ordinance No. 5840 oil premises so classified. In 1925 the governing authorities of the city of St. Paul, in mistaken expectation of commer- cial (levelopinents in that area, amended The plaintiff had engaged a St. Paul con - Building 'bone Ordinance Iio. 5840 so that tractor, Isador Goldetsky, %vho as his agent lots I to 15 inclusive in block 3 of the said in compliance with Budding Code Ordi- nddition were reclassified from "A" resi_ Hance No. 7210 had applied and paid for the deuce district to Commercial district in re- building permit from the -department of spect to lots 1 to 8 inclusive thereof and public buildings June 15, 1950. After ob- from "A" residence district to "C" resi- taining the permit, the contractor immedi- dence district in respect to lots 9 to 15 in- ately ordered steel beams to the value of elusive. This was the situation existing up $230 a survey was Trade June 23,: 1950, to and including June 15, 1950, n•hen the costing $15; 'and on July 8, or just prior ,plaintiff applied for and obtained from the thereto, aproximately 23 trees xvere cleared city of St. Paul a building permit for the from the premises. On July 6, the premises construction of a proposed commercial had' been staked out and trenches for foot - building for use as a retail cleaning estab- in.- angles dug. The plaintiff intended to lishment on his lot under and subject to begin excavation Tuly 8, 1950; but such the provisions and limitations of St. Paul work ceased when the contractor, Goldet- Building Code Ordinance No. 7210 as then sky, received a letter from the city architect, amended. dated July 6, stating that the permit was suspended until the city council could pass on the rezoning petition. of the recomiucnflation of the board of zoning 'kvas never transmitted to the city council as providoLl for by Buildiii, Zone Ordinance No. 5S40, § 23. The city council did not act because the recommen- dations of the board of zoning were never submitted to it. Plaintiff was not informed of the board's action. A second petition for rezoning of land in- cluding the lot of plaintiff -,vas filed and presented to the city council oil October 10, 1950. On this date counsel for the plain- tiff appeared for the purpose of directing the attention of the city council to the sta- tus of the first petition; on the same date a withdrawal of the first petition was filed in the office of the city clerk. The second peti- tion called for the rezoning of the area of land located generally both east and west of Cleveland avenue and south of Ford Park- way consisting of approximately 51 acres and inclitcling the land of the plaintiff. The staff of the city planning board informed the zoning board that the most proper zon- ing for the area was that proposed in the second petition and recommended that it be granted. On November 29, 1950, a third petition was presented to the city council for the re- zoning of land including the lot of the plain- tiff. The second petition was never acted 3C8 Minn. 62 P101t,TH "WESTERN REPORTER, 2d SERIES .upon for oil Dcccinber 6, 19S0, the commi sioncr of finance reportq-d to the city coui cil that the second petition was insu(1-icier The third hctition took its rc-ular tours and as a result an amendatory rezonin Ordinance No. 9670 was enacted Februar 6, 1951. Plaintiff recommenced the -work improving his property by employing 1111, labor for hand shovel digging for footing October 10, 1950. Two then were hired an paid y1.52 per hour. The work was agai stopped by a letter from the city archite and provisions of " l:uv enacted and proniull;atc'1 by municipal, staLc :utd/ur federal authority, and may be revuked Upon violation of any of the abuve stipulations." ct "Before proceeding with the excava- tion, construction, enlargement, altera- tion, repair, or removal of any building, wall, or structure * * * the ov,-ner or his agent shall first obtain a permit for such purposes from the Department of Public Buildings." Section 2-3(c) contains the following pro- vision: "Any permit or approval which maygs, be issued by the Commissioner of Pub- lic Buildinbut under which no work has been done above tite foundation, for a period of 3 months from the time -"of the issuance of such permit or ap- proval, shall expire by limitation." The building permit issued under the Provisions of the zoning ordinances as amended and the building code provisions as amended contains the following limita- tions and restrictions: "To carry out the work specified in this permit on the following described property, subject to all rules and regu- lations of the issuing Department, pro- visions of the Building Code, all other ordinances of the City of Saint Paul, all other applicable rules, regulations, } �fs to p aitt- tiff,, alleging in their verified complaint that they had procured the filing of the first petition for rezoning June 27, 1950;� that subsequent rezoning petitions had been filed; and that the plaintiff here had com- menced construction of a building on his land atfd asking for declaratory and in- junctive relief. The district court pursuant thereto 'issued its temporary restraining order on December 8, 1950, halting any further work. No work of construction was done thereafter. At no time had there been any work done above the foundation in respect to the erection of plaintiff's pro- posed commercial building on the lot ill question. Following the filing with the city clerk of the third rezoning petition on November 29, 1950, the corporate counsel of the city of St. Paul oil December 6, 1950, had advised the city council that further suspension of plaintiff's permit Would be illegal, and plain- tiff ,vas allowed to proceed with construc- tion, completing the excavation on Decem- ber S. The third petition was the same as the second petition except for the fact that it covered less territory. It included an area on -which there was nothing except resi- dence buildings and it was signed by owners of 50 percent of frontage on all streets in- volved, according to the, requirements" of MIGES v. CITY OF SAINT PAUL Mnn. 369 Clio as t2 AN.W.:d'3u3 l;uilding Zone Ordinance No. 55-10. (There is no dispute on this point.) The petition was acquiesced in by two-thirds of the Owners of land within 100 feet of the outer perimeter of the entire area to be rezoned. The zoning board recommended granting the third petition on December 13, 1950, and following such recommendation a hear- ing; before all property owners within 200 feet of the property affected was held December 27, 1950. The recommendation %vas carried by the members of the council present and voting unanimously. Plaintiff paid $3,500 for the land under a land purchase contract. The evidence dis- closes that its commercial value was about ,,4,000 and its residential value from $1,200 to $1,800. The plaintiff testified that he had engaged Goldetsky as his contractor and that arrangements had been made to erect a building costing in the vicinity of $20,000. The total expenses up to and in- cluding December S, 1930, incurred in such preparation and excavation as had been made upon the lot were y754.08, and plain- tiff testified at the trial that he had con- tracted for steel beams at a cost of $230. [i] 1. The parent authority for Build- ing Zone Ordinance N o. 5540 and the amendments thereto is to be found in the enabling act, L.1921, c. 217, which was later amended by L.1923, c. 364, L.1925, c. 284, and L.1937, c. 239, coded as M.S.A. § 462.18. In considering the issues we .may proceed from the premise that it has been establish- cd by all the leading authorities that ordi- nances dividing cities into residential and business districts and limiting use of realty in each district to certain purposes will not be declared unconstitutional unless it affirm- atively appears that the restriction is clear- ly arbitrary and unreasonable and without any substantial relation to public health, safety, morals, prosperity, or general wel- fare. [2-51 Zoning statutes have become common and zoning ordinances which are fair in their requirements are generally sus- tained as an exercise of the police power, which is legislative. Its policy is not for c2 rt.lv.xd—ss the courts. Only when its exercise con- stitutiunally affects personal or property rights do the courts take coguizance, and it is presumed that the legislative body in- vcstigated and found conditions such that the legislation which it enacted -Iras ap- propriate. The action of a city council in the zoning field, and the exercise of the Police power by tile' city council, is legisla- tive. The trend of the authorities is to-1 ward sustaining legislative regulations which exclude objectionable callings from interfering with the comfort and welfare of the community even without the crea- tion of a residential district. As vas said by 'Mr. Justice Dibell of this court in State ex rel. Beery V. Houghton, 164 Minn. 146, 150, 204 N.W. 569, 570, 54 A.L.R. 1012: " * . * * The police power, in its . nature indefinable, and quickly re- sponsive, in the interest of common -q-clfare, to -changing conditions, au- thorizes various restrictions upon the use of private property as social and economic changes come. A restriction, which years ago would have been in- tolerable, and would have been thought an unconstitutional restriction of the owner's use of his property, is accepted now without a thought that it invades a private right. As social relations become more complex, restrictions on individual rights become more com- mon. With the crowding of popula- tion in the cities, there is an active in- sistence upon the establishment of resi- dential districts from lvhich annoying occupations, and buildings undesirable to the community, are excluded." [6] Since that decision in Minnesota, ordinances that comply with the enabling act that gave rise to zoning ordinances in cities of the first class cannot be success- fully attacked on constitutional grounds ` unless there is affirmative proof that the ' restriction is clearly arbitrary, discrimina- tory, and unreasonable and without any substantial relation to public health, safety, morals, or general welfare, thus violating constitutional inhibitions. State ex rel. Beery V. Ioughton, supra; Village of Euclid, Ohio v. Ambler Realty Co., 272 370 Minn. 62 NORTII WESTERN REPORTER, 21l SERIES U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 Plaintiff contends that the rcquircment A.L.R. 1016 (a leading case on zoning that the city council pass on the petition regulations).' An excellent cxpusition of N601in 90 days must be strictly eortstructl the extent of the exercise of the p()lice and that the nnla-ful failure of the city power is found in 3 Dmincll, I)i;. (3 ed.) council to comply with that provision op. a 1603. The mi horitics vnifurntly sun crates in law as a denial of the petition, UP the rule to be that, if the aidity of the .The authorities cited by plaintiff for this legislative classification for zoning purposes proposition nte•rcly support the general rule be fairly debatable as it is here, the le isla- of ]ativ that zoning ordinances must be tive judgn;ent must he allowed to control, strictly construed. Ile further coat d [7, 8] 2. The plaintiff contends tha the failure on the part of the city couuci to act on the first petition for rezonin constituted a rejection of such petition an * * * it shall be the duty of the Council to vote upon said petition with - ill 90 days after the filing of the same by the petitioners with the City Clerk; provided that no petition to rezone any property shall be filed or considered Within six months after the Council has rejected a ]like petition to rezone said property." 1. Lontbardo Y. City of Dallns, Tcx.Civ. APR. 47 S.W.2d 49,-,; State ex rel. Car- tcr V. IJ A -per, 182 Wis. 14S, 106 NAV. •1.-,1, : 3 A.L.R. 260; Atner ic:ul Wood l't'ndo,•ts Co. v. City of Minneapolis, S ('ir., ::.i 1�'._'d ta,7: %alnt v. lioard of 1'ub- lie \\'ork•,, 27.1 U. .:i_';�. -17 S.Ct. ;,J.} 71 L.Ed. 107.1; Dennis t•. \'ill:tgo of Tonka tiny S Cir., 1:,G I'.•_'d G7_'; Loigltton V. Cit% of MinupD caelis. .C..1inn., 16 F. 'uP t,. lull: City of Tnt son v. Arizonn t Mortuary, :A Ariz. 495, 272 1'. 0_'3; !'nrilic Nthttes Lox C Iiaskcs" Co. V. '-M L'.C. 17G, 5G S.Ct. ]5O, So d L.Ed. 138; Lee v. Delntont, 2^S illinn. 101. 3G N.\\' 2d 530; Central Trnst Co. I'. C it}' of Cincinnati, (;2 Ohio App. 139. 23 N.E.2d 450; Brett v. L'ttilding Com'r of Ilr„old'lle, .',i0 \lass. 7:y 1.1.-, N.E. '209 (illXvhielt it was held that it n•as n-itltiu - the police power of nnmiripctl[ty to create residence district in q'llielt wily siugle- family dwellings could bt: constructed) ; Crntton v. Cwttc, 3G1 1':i. 57S, 73 A2d 351; Nfinrblelivnd Land Co. V. City of Los Angeles, 11 Cir., 47 F."d 523• 1`ox Alcadow F;stnles, Inc. V. Culley, 2:;3 App. ' Div. 230, 252 N.Y.S. 178. m KIGES v. CITY OF SA114T PAUL _ Itiilr,n 371 Ci<62 sea void. Marblehead Land Co, v. City of pcgaard v. Board of Com'rs, 120 :Minn. 443,. 1:0-�'-Angelcs,.supra. 139 INAV. 949, 43 L.R.A.,1\.S., 936. It would seem logical to assume that the failure 'to act with reference to the first petition merely caused the first petition to expire with no adverse etlects. The plain- tiff had been notified on )uly G, 1950, that the building permit which he had obtained from the city of St. Paul was suspended by order of the authorities due to the building rezoning petition. Since the council %vas acting under the police power and exercis- ing its legislative duties, he should have known he .would be proceeding at his peril until the suspension was withdrawn. [9 10] 3. Plaintiff contends that there was not an acquiescence of two-thirds of the owners within 100 feet as required by Building Zone Ordinance No. 5810, § 23, as amended. His contention presents the question whether this provision requires the acquiescence of two-thirds of the owners within 100 feet of the outer perimeter of the entire area of land affected by that provision or whether it requires, as he contends, the acquiescence of two-thirds of the owners within 100 feet of individual areas of more restricted size within the total area to be rezoned. He does not state what such individual areas should be. If plaintiff's contention were to be followed, nothing .but confusion could arise where areas are to be rezoned under use restric- tions.- This matter was under consideration in the case of -Morrill Realty Corp. v. Rayon Holding Corp., 234 N.Y. 268, 172 X.E. 494, where it was held that the board of estimate, in redistricting city under zoning statute, was not required to proceed by separate- resolution to zone block by block. The trial court in the instant case adopted the. -rule that the provision -requires the acquiescence of two-thirds of the owners within 100 feet of the outer perimeter of the entire area of land affected by the zoning provisions, and we believe that this is,thc sound rule.and the mast logical con- struction of the ordinance. Where the lan- guagc of a statute seems to embody a definite meaning, courts should not nullify obvious requirements by.construction. Qp- [11, 12] 4. The plaintiff contends that the building permit was improperly sus- pended because he, as pcnuitlee, had made plans and begun improvements on his prem- ises before receiving any notice of suspen- sion and also had received his permit prior to the filing of the first petition for rezon- ing. Building Zone Ordinance No. 5840, 23, provides: "That the proper filing of a sufficient petition for the amendment of this or- dinance so that any district or portion thereof shall be thereby re-classified and placed in a more restricted district or a district of higher classification, With the requisite written acquiescence of the owners of adjacent property* ' pending the determination of the Coun- cil thereon, shall be deemed effectual to suspend the right to initiate any use in or upon the premises sought to be re- classified or any portion thereof which would not conform to the regulations hereby prescribed for the proposed re- classification." �Vhen the above provisions are considered with Building Code Ordinance No. 7210, 2-3(c), and the limitations and restric- tions expressed on the permit itself it ap- pears. that, because of the suspension_ or- dered by the city architect, the building permit had expired by limitation. - The council, after the filing of the first petition on June 27, 1950, was in the process of classification as to rezoning certain areas;. and it is not for the court to ex- amine into the good faith of the council in such proceedings unless they proceeded in an unreasonable, arbitrary, or discrimina- tory manner under established limitations upon the police power. There is nothing in the record to indicate anything done or any act or conduct outside of the suspension notices, which were given more than once. No authorities are cited to support the con- tcntiun that the permit did not expire by limitation except the authorities which arc to the effect that zoning statutes and ordi- nances shall be strictly construed. The 372 Enna E2 NORTH WESTERN REPORTER, 2,1 SEIIIES trial court viewing the situation as a whole held that the buihling pertnit had expired by h7nitatlOn. We concur with the holding of the court. Unless the plaintiff, through the preparation of the plans testified to and the construction of the bu;lding as far ns it had gone, had gained a vested right of which he could not be deprived by the classifica- tion then under consideration and subse- quent rezoning, the consideration of wheth- er or not the building permit had expired would be moot. Ilis right to prevail Isere must find its basis in a vested right which he has gained and of which he cannot be deprived by the classification begun June 27, 1930, and the subsequent rezoning by ordinance amendment enacted February 6, 1951. 5. Plaintiff contends that under.the pro- visions of Building Zone Ordinance -No. 5S40 and amendments thereto there can be no retroactive effect on his right to proceed under the building pertnit issued June 15, 1950, approximately twelve days prior to the filing of tite first rezoning petition.. It has already been stated that the provisions of Building Zone Ordinance No. 5840, § 23, state in effect that the proper filing of a sufficient petition for the amendment of the ordinance shall be deemed effectual to sus- pend the right to initiate any use in or upon the premises proposed for reclassification which would be nonconforming under such reclassification. [13] While a piecemeal method of al- tering zoning classification may frequently be undesirable in practice, it may, however, be the only nay of protecting rights which must be recognized; and while all zoning regulations must be in accord with a gen- eral comprehensive plan, they should be made, as the statute provides, with a view to encouraging the most appropriate use of the land. Of course, a zoning ordinance must not be arbitrary, unreasonable, or discriminatory but zoning classifications are largely within the judgment of the l" eg lative body and the exercise of that judg- ment will not be interfered with by the courts except in cases where it is obvious that the classification has no substantial re- lation to pul)lic health, safety, morals, or general %velfare. Gratton v. Conte, 361 P.L. 578, 73 A.2d 381. It was held in Brett v. Building Com'r of Brookline, supra, that a person to whonl a permit for construction of a two-family dwelling had been issued had 1•w sPecial imununity and was affected by an amend- ment of a zoning bylaw not permitting two- family dwellings to be constructed in the district trough he had started work pur- suant to the permit, where he had not done enough work to have acquired a vested right; the fact that he had entered into a contract with a third person for construc- tion of the building did not affect constitu- tionality of the bylaw; and excavation and engineering work and forms constructed did not constitute an "existing structure" with- in the provision of the statute exempting such from zoning restrictions. In City of Tucson v. Arizona Mortuary, 34 Ariz. 495, 511, 272 P. 923, 925, under a somewhat similar set of circumstances as to permit and reclassification, it was said: As soon as the attempt 'was known, proceedings were immediately initiated and carried forward to estab- lish the restricted district. To hold that under circumstances like this the city was estopped would mean that the governing authorities of municipalities, = unless they foresaw in advance every • condition which might arise and acted before the contingency occurred, would be helpless thereafter to meet the changed situation." The court in that case further .stated: "It is also contended that plaintiff had vested rights which were entitled to protection. Although it.had pur= chased the land in question and let the contract for the building before the ordlnatice was adopted, yet before any -• material amount of construction had actually been done, it was fully advised that the ordinance was under contem- plation. Instead of awaiting the action of the council, it apparently proceeded on the theory either that the ordinance a � . h KIGES v. CITY OF SAINT PAUL Cite ns G2 N.W.2d 30 would not be passed, or that, if passed, it was void. IIaving taken that chance, it may not now be heard to set up any loss to it which arose from its actions after it had knowledge that the ordi- nance was being considered. But even . if plaintiff suffered sonic damages through things occurring before the protest, financial loss, no matter how severe, does not of itself give parties a vested right to continue a business, no matter how long it has been con- ducted, if the business is one whose location may be regulated under the po- lice power.,, See, PIadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 3=45, Ann.Cas.1917 B, 927.' .. [14] We are of the opinion that it does not appear affirmatively that the amendatory Ordinance No. 9670, enacted February 6, 1951, was so unreasonable, arbitrary, and discriminatory that it would have been un- constitutional if it had been adopted before the plaintiff obtained the building permit and before lie had commenced any prepara- tion in clearing the ground or excavating for the building to be used as a retail clean- ing establishment. The argument that the rezoning amendment 'was ineffective be- cause it had no retroactive effect on the plaintiff's right to proceed cannot be sus- tained" against the police power .invoked here. Plaintiff cites 9 Anijur., Buildings, § 8, to support his argument that, having in- curred liabilities for work and material and having entered upon construction prior to the adoption of the amendment, he had ac- quired a vested right of which he cannot be deprived. That section, however, merely states that a building permit may not be arbitrarily revoked where the owner has in- eitrred material expense in reliance upon the permit. A statement more pertinent to the question here is in 58 Am. Jur., Zoning, § 185, which reads as follows: "A number of cases sustain the ex- press or implied revocation of a build- ing. permit where, subsequent to its Minn. 373 issuance, the city passes a valid ordi- nance which has the effect of prohibit- ing the erection of a building such as the one in question, and, under some decisions, this is true even though the grantee of the permit has entered into contracts, bought material, or incurred other expenses. This rule has been ap- plied in the case of a subsequent zoning ordinance or amendment thereof, and it is held that the grant of a permit or license does not preclude the applica- tion thereto of a new zoning regulation prohibiting the erection of the building " or the operation of the business in the particular zone. * * * Snch on ap- plication of zotling provisions hos beds held not to violate constitutional re- '• strictions against the retroactive appli- cation of legislation, or tlt.e in:.poirmcnt " of.vested rights * * *. Indeed, the same result has been reached in some cases notwithstanding that the permit holder had acquired title to the land, assumed obligations, and incurred ex---, penses preliminary to' construction, or had entered into contracts for the con-- struction, and had actually commenced work thereon when the ordinance or'• amendment was enacted, at least where ' the work done prior to the amendment -.was not suffic ent to'constitute an exist ing structure. A fortiori, expenditures made and obligations incurred after the enactment of the zoning ordinance or -:.amendment, although in reliance on -a --permit previously issued, are insufficient to give a vested right to erect a build- ing in violation of the ordinance." (Italics supplied.) It must also be borne in mind that no work had been done above the foundation, for a period of three months from the time of the issuance of the permit. See, Building Code Ordinance No. 7210, § 2-3(c). The weight of authority sustains defendants' position that merely obtaining a building permit and incurring'some expense and as- suming obligations preliminary to construe-' tion, but proceeding no further than excava- tion, as was done here, is not sufficient_ to create a vested right to use premises for the purposes planned which cannot be cut 371 261111n. 62 NORTII WESTERN R.ErORTER, 2d SERIES off'by �ubscquent arncndinctit of the ordi- nance. ]Brett v. Building Cont'r of Brook- line, supra; City of Lansing, v. Dawley, 247 Mich. 394, 223 N.1V. 500; Pox Lane Corp. v. Mann, 216 App.Div. 813, 215 N.Y.S. 334; Dart v. City of Gulfport, 147 -Miss. _534, 113 So. 441. It was held in the Dart case that a permit could be annulled by subsequent Passage of a law prohibiting a thins previously granted, under the police power. [15-17] 6. The plaintiff contends that, by virtue of a letter ~written to the city council by the city attorney regarding the questionable legality of the procedure fol- lowed on the first petition and the continu- ing suspension of the building permit, the city was estopped from further interfer- ence with his building plans. The city at- torney is not a member of the city council and only acts in the capacity of its legal ad- visor. It is well established that the acts of a municipality relative to the issuance of building permits under zoning ordinances for the construction of commercial or residence property fall within its govern- mental rather than proprietary functions and that in consequence estoppel will not lie against it for its acts or those of its sub- ordinates performed in connection there- with.= The situation here does not create an estoppel against the city which was act- ing in its governmental capacity at the time. '1. The trial court found that the arnenda- tory Ordinance No. 9670 was -,vithin the scope of the comprehensive plan for the de- velopment of the city.of St. Paul and that, as required by the statute and Building Zone Ordinance No. 5540, as amended, rea- sonable consideration was given to. the topography and character of the district in- volved . and its suitabiiity for particular uses. [18,19] While this court must search the record to ascertain whether any errone- ous rules of law have been applied and act 2. W. 1I. Barber Co. r. City of )fiinicapons, 22Y7 Mimi. 77, 34 N.11'.2,1 710; Alexnnder Co. v. City of 0%%,a nun, 2:_12 mien. 312, 24 N.11'.2d 244; 1Sdbe v. City of Bellaire, accordingly, it'nrust'on appeal consificr the testimony in the light most favorable to tlic prevailing party. When an action is tried by a court without a jury, its findings of fact are entitled to the same weight as the verdict of a jury and will not be reverse,] on appeal unless they are manifestly con- trary to the evidence, and such rule applies whether the appeal is from a judgment or from an order granting or denying a nc%v trial. Lipinski v. Lipinski, 227 Minn. 511 35 NAV.2d 708. Where, as here, the ques. tion .whether an ordinance is an unreason- able or arbitrary exercise of police poNver is fairly debatable, the amendment to the ordinance must be upheld as valid. It seems tous that . on- this record the order of the trial court mast be affirmed, for certainly the burden was on plaintiff to show that there was no reasonable basis for this ordinance. Afiirmcd.