HomeMy WebLinkAbout8.a. Twin Ponds Conservation Easement, 05-41-AP-VAGENDA ITEM: 05- 41 -AP -V Twin Ponds Conservation
Easement
AGENDA SECTION:
Old Business
PREPARED BY: Eric Zweber, AICP, Senior Planner
AGENDA NO. 8.4.
ATTACHMENTS: Excerpt of Minutes from 2/17/04 CC
Meeting, Excerpt of Minutes from 9/27/05
PC Meeting, Existing Building Envelope
Diagram, Proposed Building Site Plan
and Revised Conservation Easement
Diagram, Memo from Charles LeFevere
regarding Buffer Averaging
APPROVED BY:
RECOMMENDED ACTION: No staff recommendation, to be determined by Council.
4 ROSE
\IOLINT
CITY COUNCIL
City Council Regular Meeting' September 19, 2006
EXECUTIVE SUMMARY
ISSUE
At the September 5, 2006 Meeting, the City Council tabled the request by Manley Land Development
(Manley) to revise the conservation easement using buffer averaging to receive more information about
two topics; the size and locauon of a house that could be constructed using the current Conservation
Easement and a legal opinion relating to the City's wetland ordinance and buffer averaging
SUMMARY
Manley has provided two diagrams for the City Council's review. The fast diagram demonstrates that a 65
foot by 50 foot house can be constructed with the exisung conservation easement and required 30 foot
budding setback. The second diagram shows the proposed Manley site plan that would include a house
with attached garage and a detached garage /pole barn This second diagram still requires a modified
conservation easement using buffer averaging, but the minimum conservauon easement width would be
45 feet instead of the August 5 request of 30 feet. Staff is comfortable in stating that the Manley proposal
could be modified further to reduce the buffer averaging needed. It should also be noted that the
proposed house with attached garage could be constructed within the existing buildable area; it is unclear if
the desire house and detached garage /pole barn could be accommodated on the site.
City Attorney Charles LeFevere has provided a memo regarding the City's wetland ordinance and buffer
averaging after his review of the Twin Ponds Plat mmutes and staff reports. Mr. LeFevere has determined
that the City is under no obhgation, and the buffer averaging is at the discretion of the City on a "proyect-
by-project" and "case -by- case" basis. It should be noted that buffer averaging is not considered a variance
or exception to the ordinance and is contemplated by the ordinance in certain situations. For the
Council's information the buffer averaging provision within the Comprehensive Wetland Management
Plan is provided below:
2. Buffer Averaging
Buffer averaging is the practice of allowing a variable buffet width around a wetland where the average
buffer area is equal to the buffer area required for that particular wetland management classification.
Buffer averaging will be reviewed on a project -by- project basis. When proposing buffer averaging, the
project proposer or applicant must adhere to the following:
The buffer width averaging will be reviewed on a case -by -case basis
A minimum 30' buffer is allowed on Preserve and Manage 1 wetlands.
A minunum 15' buffer is allowed on Manage 2 and Manage 3 wetlands
Averaged buffer acreage must be equal or greater than the required buffer acreage.
An exception to the minimum buffer average will be considered for linear public road projects on existing
roads.
Conservation easements are required over the buffer perimeter and will be recorded at the time of final
plat. The City Engineer will review the proposal and either approve, approve with conditions, or deny the
request to utilize buffet averaging around the wetland.
CONCLUSION
Consistent with the comments found in the City Attorney's memo, the Council has the discretion to either
approve the request by Manley or deny the request. The proposal is modified from August but continue to
require encroachment into the easement area for both the house and detached garage. As -is, the site is
buildable however, the property owners desire to have structures of the size and location proposed are
what prompted the request.
If the Council chooses to deny the request, the item should be tabled to the next meeting to permit staff
time to draw up findings for denial.
RECOMMENDATION
No staff recommendation.
2
EXCERPT OF MINUTES
CITY COUNCIL MEETING
FEBRUARY 17, 2004
Manley Rezoning and Simple Plat
Community Development Director Lindquist reviewed the request by Manley Land
Development for a rezoning from AG, Agriculture to RR, Rural Residential to create two
residential lots and a driveway setback variance from five to zero feet for property south of
120• Street along with the easement being requested as part of the Manley project. Wetland
restraints limit where the driveway can be placed. The ongmal lot is 20.65 acres and the
resulting Lots would be 5.24 acres and 15.41 acres. The existing structures would be removed
and two singlefamdy homes are proposed. The Plannuig Commission held a Pubhc Hearing
and approved the driveway setback variance request and recommended City Council
approve the rezoning and simple plat applications. Staff recommends approval. Council
noted that approval of this request does not guarantee there are two buildable sites on these
lots. All building codes and septic system requirements would have to be met. A letter was
received representing Richard D. and Vicky L. Hanson of 12275 Cobblestone Lane with
street easement concerns about an outlot that they own south of the Manley parcel The
outlot has the potential of allowing a through street from McAndrews Road to 120in Street.
Hansons requested that Cobblestone Lane remain a cul -de -sac as it was developed. Staff
would not support giving up that outlot at this time.
Council Member DeBettignies asked about the Wetland Conservation Act Permit. Jenni
Hattervig from Pioneer Engineering, a consultant engineer for Manleys', said mitigation of
the Wetland Buffer area is m process. No permit is needed because there are no impacts to
the wetland.
MOTION by DeBettignies to adopt an Ordinance approving the rezoning of the Manley
property from AG, Agriculture to RR, Rural Residential Second by Strayton Ayes: Shoe
Corrigan, Droste, Strayton, DeBettigmes Nays: None. Motion carried.
MOTION by DeBettignies to adopt A RESOLUTION APPROVING THE SIMPLE
PLAT to allow the Manley property to subdivide into two single- family residential lots
subject to the conditions outlined in the Resolution. Second by Droste. Ayes. Droste,
Strayton, DeBettigmes, Shoe Corngan. Nays- None. Motion carried.
EXCERPT OF MINUTES
PLANNING COMMISSION MEETING
SEPTEMBER 27, 2005
Public Hearing:
5A. Case 05- 41 -APN Twin Ponds (Manley) Administrative Plat and Variance.
Mr Lindahl reviewed the staff report. The applicant, Manley Land Development, requests a
simple plat and a driveway setback variance from 5 to zero feet to create two residential lots
for the property legal described as the NE 1/4 of the NE 1/4 of Section 18- 115 -19 south of
120` Street These items, along with a rezoning request, were reviewed and approved the
Planning Commission in December of 2003 and the City Council in February of 2004. The
apphcant failed to record those approvals and, by ordinance, the simple plat and variance
requests expired after one year. The rezoning approval has no expiration clause and is still m
effect.
Currently, the subject property is a single 20 31 acre parcel containing one single family
home The apphcant proposes to subdivide this property into two single family lots Lot 1
will be approximately 5.12 acres while Lot 2 will be approximately 14.33 acres Should the
City approve the sunple plat and driveway setback variance requests, the applicant plans to
remove the existing structure and construct two single family homes.
Acting Chairperson Zurn asked the Commission if they had any questions for Mr. Lindahl.
Commissioner Powell confirmed that the shared driveway access creates no public
maintenance responsibility and that it would be the responsibility of the respective property
owners to maintain the shared driveway. Mr. Lmdahl stated the developer will be required
to execute shared access and maintenance agreements for the shared driveway between the
property owners prior to obtaining a building permit.
Acting Chairperson Zurn invited the applicant to come forward Frank Blundetto, 12969
Diamond Path, Apple Valley, represented Manley Land Development. Mr. Blundetto stated
that Mr. Lindahl's report was accurate although he does not believe Manley is required to
have a Wetland Conservation Act permit apphcation.
MOTION by Zurn to adjourn the Planning Commission Meeting. Second by
Schultz. Ayes: All. Nayes: None. Motion approved. Planning Commission meeting
adjourned at 6:43 p.m.
Acting Chairperson Zurn opened the Board of Appeals and Adjustments meeting.
Acting Chairperson Zurn opened the Pubhc Hearing for the variance application.
MOTION by Schultz to close the Public Hearing Second by Schwartz. Ayes: All.
Nayes: None. Motion approved.
MOTION by Powell to approve a dnveway setback variance from 5 to zero feet for
both iesidential lots to be known as Lots 1 and 2, Twin Ponds Addition.
Second by Schultz. Ayes• All Nayes: None Motion carried
Upon unanimous decision, the Board of Appeals and Adjustments meeting was adjourned at
6:46 p.m.
Acting Chairperson Zum reconvened the Planning Commission meeting at 6.46 p.m and
opened the Public Hearing for the simple plat application.
Mr. Lindahl entered into the record comments received from Albert and Janet Hoff, 12410
Cobblestone Lane, Rosemount, stating that the Hoff's have no objections to the simple plat
but do oppose any access or through street from Cobblestone Lane to 120 Street. Mr.
Lindahl stated he did explain that is not a direct result of this apphcation but they still wished
to state their opposition to any through street in this neighborhood.
MOTION by Schwartz to close the Public Hearing. Second by Powell. Ayes: All.
Nayes. None. Motion carried.
Commissioner Powell asked City Engineer Brotzler to clarify the status of the WAC permit
application and if the condition should be altered. Mr Brotzler responded that it was a
standard comment for the wetlands and based upon his conversation with the developer's
engineer, it was acknowledged that since no work is proposed within the delineated wetland
that a WAC permit is not required Mr. Brotzler stated if the Commission felt it was
necessary to clarify it, it would be appropriate to strike the statement. Commissioner Powell
stated he would like to delete the condition m the engineering comments of the report.
Commissioner Zurn questioned if Condition 9 could be deleted. Mr. Pearson stated it could
be deleted based upon the previous motion.
MOTION by Powell to recommend the City Council adopt a resolution approving
the simple plat for the Manley property, subject to the following conditions.
1. Submission of shared access and maintenance agreements. These documents
will be prepared by the applicant for review and approval by the City Attorney.
2. Dedication of 55 feet of right -of -way spanning the 120 Street (or northern)
property line and dedication 65 feet of right -of -way spanning the eastern
property line extending from the southeastern corner of Lot 2 to the
southwestern corner of the Cadwell property.
3. Each lot will be required to provide a well, septic system, dram field and backup
drain field m conformance with all City of Rosemount Title 9, Chapter 6, Dakota
County Ordinance 113, and Minnesota Rules 7080 standards.
4. Provide all necessary easements as required by the City Engineer including, but
not limited, to those listed below These easements shall be recorded with the
proposed subdivision.
a. A shared access and driveway easement to allow access from both
properties to 120' Street.
b. Drainage and utility easements to the high water elevation of all wetlands
c. A conservation easement over the 75 foot wetland buffer area and
wetland mitigation area.
5. Payment of two units of Park Dedication; the 2005 fee is $3000. This fee shall
be paid to the City pnor to recording the proposed plat.
6. The custom grading plan for each lot shall comply with the approved simple plat
as well as the tree preservation performance standards outlined in Section 8 3 of
the Zoning Ordinance and shall be reviewed by staff at the time of building
permit.
7. Conformance with the conditions outlined in the February 6, 2004 and
September 22, 2005 Project Engineers memos (attached) including payment of
all apphcable development fees.
8. Conformance with all apphcable building codes including obtaining a demolition
permit for any existing structures and buildings permits for the two new single
family homes.
Second by Schultz. Ayes: All Nayes: None. Motion approved.
Mr. Lindahl stated the Board of Appeals and Adjustments is the final stop for the Variance
portion unless there is an appeal to the filed within 10 working days. The simple plat
portion will move on to the City Council on October 18, 2005.
VA� 0
L
f 2
/s tZtts
r
A
104
c\
vow i
.014
6
e r Ate
r
1 Y r41,*,
ai
era liskarat
t
4
Wi
a
-2 Salk, e
494S *SA taiSAVpett
dj
d/
Kennedy
r Graven
CHARTERED
298237v1 CLL RS215 -4
470 US Bank Plaza
200 South Sixth Street
Minneapolis MN 55402
(612) 337 -9300 telephone
(612) 337-9310 fax
http /Amu, kennedy graven com
MEMORANDUM
TO: Kim Lindquist
FROM: Charlie LeFevere
DATE: September 13, 2006
RE: Manley Land Development Application for Buffer Averaging
At the last City Council meeting, I was requested to provide further information on the legal
standards applicable to consideration of the application by Manley Land Development to amend
the conservation easement for a wetland buffer on the Twin Ponds plat. The applicant requested
that the 75 -foot buffer be reduced to 30 feet under the "buffer averaging" provisions of the City's
Comprehensive Wetland Management Plan.
First I should note that I was under the impression that the rules related to building setbacks from
wetland buffers had changed after the approval of this plat. However, at the time this plat was
approved, the current rules requiring a 75 -foot buffer and a 30 -foot setback were already in
place.
City Code, Section 10 -1 -11 requires that an application for subdivision approval must be in
accordance with the requirements of the City's Comprehensive Wetland Management Plan. The
Management Plan requires a buffer of 75 feet in the case of a Preserve wetland. However, there
is a section of the plan that provides for buffer averaging. This provision sets a minimum of a
30 -foot buffer on Preserve wetlands. However, I do not read the buffer averaging provision as
creating an entitlement. Rather, the section on buffer averaging notes in one place that averaging
"will be reviewed on a project -by- project basis" and in another place that it will be reviewed on a
"case -by -case basis The management plan does not specify criteria that will be applied in
determining whether to permit buffer averaging. However, 1 assume that relevant factors would
include, such criteria as: 1) whether there is a need to use buffer averaging to allow a reasonable
use and development of the property; 2) what are the potential adverse impacts of reducing the
buffer area in those parts of the buffer that will not meet normal setback standards; and 3)
whether the proposed averaging provides protection for the wetland that is superior to that which
would be provided by the uniform application of the 75 -foot setback standard.
In this case, it seems to me that the City Council has a fairly broad discretion in deciding whether
to authorize amendment of the easement. This is partly because of the facts related to the
property and the proposed development and partly because of the procedural status of the case.
First, it appears to me that the information submitted by the applicant suggests that the property
can be used and developed for single family residential use without any averaging, and certainly
with less buffer averaging than was proposed in the original application. Therefore, the Council
could find that reducing the width of the buffer will have adverse environmental impacts and that
there is no need for a departure from the 75 -foot buffer standard in order to fully and reasonably
use the property for a single family residence.
Second, this question comes to the City Council not as an original plat application but as a
request to amend an easement that is already in place. The City is not legally required to
relinquish an easement granted for conservation purposes. Moreover, during the process of
deciding whether to approve the plat, concerns were expressed about whether two lots could
reasonably be developed on the property given the environmental sensitivity of the project, the
surrounding wetlands and the like. The applicant represented to the City that the lots could be
developed and the applicant consented to granting a 75 -foot conservation easement on this lot
On the other hand, I believe that the overall average of wetland buffer proposed by the applicant
substantially exceeds the 75 feet required by ordinance, and the Council could reasonably
conclude that the proposed use and development of the property is reasonable and that reducing
the buffer in that small area will not have a major environmental impact.
Therefore, I believe that it is within the discretion of the City Council to decide to approve the
amendment of the buffer easement, either as originally proposed or some lesser amendment, or
to deny the request.
This application is somewhat unusual because it is not an application for an original plat, a
variance, a vacation or other land use application provided for in the Code. Nevertheless, I
would recommend that, if the City Council decides that the application should not be granted, it
adopt findings, or at least state reasons on the record for its denial.
In future cases, the City Council will be required to act on requests to approve plats or other
development with buffer averaging. The current plan simply provides that such applications will
be considered on a case -by -case basis. However, there is no statement of the criteria that will be
considered in deciding whether to approve averaging in any case. As such, there is the risk that a
denial of a request to allow buffer averaging could be seen by a court as an after- the -fact
justification for a City Council decision that is not based on objective application of the
management plan. Therefore, I would recommend that the Council consider adoption of either
an amendment to the plan, or a resolution stating a policy providing guidance for consideration
of requests to allow buffer averaging Such a statement would help staff, the Planning
298237v1 CLL RS215 -4
2
Commission and the City Council, as well as make decisions based on the policy more
defensible if challenged in court.
298237v1 CLL RS215 -4
3