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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