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HomeMy WebLinkAbout6.o. Adopt Findings of Fact Upholding Variance Denial for KulhanekCITY OF ROSEMOUNT EXECUTIVE SUMMARY FOR ACTION City Council Meeting Date: June 3, 2003 AGENDA ITEM: Adopt Findings of Fact Upholding the Board AGENDA SECTION: of Appeals & Adjustments Denial of Variance Consent PREPARED BY: Rick Pearson, City Planner AGEND T ATTACHMENTS: Draft findings of Fact Resolution, PC Minutes APPROVED BY: (3 -11; 2 -25; 1- 25 -03). Applicant & Property Owner: Location: Zoning District & Comp Plan Land Use: Area in acres: Note: Nature of request: Standard Request Variance Michael Kulhanek 12355 Blanca Ave. Rural Residential 1.01 A conditional lot area variance was previously granted in 2001 for construction of the house (principal structure). Variance to setbacks for construction of accessory structure Front yard setback Side yard Rear yard 40 feet 30 feet 30 feet 27.66 ft. 17.99 ft. / 10 ft. 15.53 ft. 12.34 ft. 12.01 ft. / 20 ft. 14.47 ft. Board of Appeals & Adjustments Action: Denial of variance request City Council Direction: Prepare findings in support of upholding the Board of Appeals & Adjustments Decision. SUMMARY The attached draft findings of fact resolution is intended to summarize the issues and sequence of events that resulted in the Board of Appeals & Adjustments denial of the variance requested by Michael Kulhanek for his property located at 12355 Blanca Avenue, and the subsequent appeal. RECOMMENDED ACTION: Motion to adopt a resolution upholding a decision of the Board of Appeals and Adjustments Denial of a variance requested by Michael Kulhanek for 12355 Blanca Ave. based upon findings of fact. CITY COUNCIL ACTION: CITY OF ROSEMOUNT DAKOTA COUNTY, MINNESOTA RESOLUTION 2003- A RESOLUTION UPHOLDING A DECISION OF THE BOARD OF APPEALS & ADJUSTMENTS DENIAL OF A VARIANCE REQUESTED BY MICHAEL KULHANEK FOR 12355 BLANCA AVE. BASED UPON FINDINGS OF FACT WHEREAS, the property located at 12355 Blanca Ave. in Rosemount was granted a conditional variance by Resolution 2003 -20 on March 20, 2001 to construct the principal structure on property that is non - conforming to Rural Residential minimum lot area standards, and contains a storm water pond basin that is an integral feature of the storm water management system in the immediate vicinity; and, WHEREAS, the Community Development Department received an application for a variance to Rural Residential setbacks for an accessory structure on January 22, 2003; and, WHEREAS, the Board of Appeals & Adjustments scheduled a public hearing as required for February 11, 2003; and, WHEREAS, the Board of Appeals & Adjustments continued the public hearing to February 25, and again until March 11 to provide the applicant additional time to provide information in support of the variance as advised by Brian Alton, Mr. Kulhanek's Attorney; and, WHEREAS, the Board of Appeals & Adjustments received testimony from affected property owners at the public hearings on February 11, 25 and March 11 in opposition to the requested variance; and, WHEREAS, the Board of Appeals & Adjustments adopted a motion to deny the variance based upon the applicant had not demonstrated the variance will not adversely affect the public health, welfare and safety and not be injurious to property and improvements in the neighborhood as specified in Section 14.2 of the zoning ordinance; and, WHEREAS, the City Council received a letter of appeal of the Board of Appeals & Adjustments decision from Mr. Kulhanek on April 3, 2003; and, WHEREAS, the City Council scheduled a public hearing to consider the appeal for April 17, 2003 which was continued to May 6 and again to May 20, 2003 to provide the applicant additional time to provide information in support of the appeal as advised by Brian Alton, Mr. Kulhanek's Attorney; and, RESOLUTION 2003- WHEREAS, the City Council conducted a public hearing on May 20, 2003 to hear the appeal of Mr. Kulhanek, and his Attorney, Brian Alton; and, WHEREAS, the City Council received verbal and written testimony from four surrounding property owners protesting the appeal of the variance denial because of harm -full effects to their property caused by additional storm water generated by the proposed filling of a wetland and storm water pond as part of the variance request. NOW, THEREFORE, BE IT RESOLVED, the City Council of the City of Rosemount hereby upholds the decision of the Board of Appeals & Adjustments to deny the variance to Rural Residential Accessory Structure Standards requested by Michael Kulhanek based upon findings of fact: FINDINGS OF FACT 1. The Zoning Ordinance, Ordinance B specifies that "the Board of Appeals & Adjustments and the City Council, upon appeal, must find as follows in granting of a variance from this ordinance (Ordinance B, the Zoning Ordinance): 1. Granting a variance will not adversely affect the public health, welfare and safety and will not be detrimental or injurious to property or improvements in the neighborhood." Adjacent property owners neighboring Mr. Kulhanek's property to the west indicated that drainage problems existed on their property that would be increased by Mr. Kulhanek's proposed filling of a wetland upstream of their property. Mr. Kulhanek failed to produce a grading plan that would show how the neighboring property would not be adversely affected by the proposed fill, retaining wall and impervious surface that would result from the requested variance if granted. The storm water data prepared by the Svoboda consultant provided by the applicant to support the variance request did not model storm -water storage and run -off quantities by the same calculation methods and criteria that are city policy. 2. The property is now being put to a reasonable use, including an attached two -car garage, under the previously granted variance. 3. The requested variance proposed an accessory building that encroached into front, side and rear yard setbacks in addition to partial filling of a wet land / storm water pond. The requested variances are sufficiently substantial that most of the proposed structure would be within setback areas. There are alternative locations on the property for the structure that would not have required a variance at all, or a lesser variance to one yard only. The site survey indicates a location on the east side of the principle structure that would require only one variance and necessitate fill in portions of a wet land buffer -zone with potentially no impact to surrounding properties. 4. The applicant was informed of the inadequacy of the storm -water study prepared by his consultant as early as February in response to the current variance request. Action by the Board and Appeals & Adjustments and City Council on appeal were delayed on several occasions at the request of the applicant's attorney to prepare additional information. No additional data or evidence using city storm modeling techniques has been presented by the applicant or his consultants. Therefore the applicant has not established to the RESOLUTION 2003- Council's satisfaction that the filling of the wetland would not increase flooding of adjacent and nearby properties. ADOPTED this 3rd day of June, 2003 by the City Council of the City of Rosemount. William H. Droste, Mayor ATTEST: Linda Jentink, City Clerk Motion by: Voted in favor: Voted against: Seconded by: Member absent: Planning Commission Meeting Minutes March 11, 2003 Page 4 Public Hearing: Mike Kulhanek Variance Petition Chairperson Weisenel recessed the Planning Commission meeting and convened the Board of Appeals and Adjustments. This public hearing has been continued from the past two meetings. Mr. Kulhanek has requested variances to build a 30 ft x 36 ft garage on his property located at the northern edge of the cul -de- sac on Blanca Avenue. While his lot is large enough, it is dominated by two wetlands on each side of the house. The open space behind the house is set aside for the drain field. The only accessible place for an accessory structure is in the front yard between the wetlands and the street. However, there is no way to do this and conform with the setbacks without impacting a wetland. This property is zoned Rural Residential and the front yard setback is 40 feet, side yard setback is 30 feet, and the rear yard setback is 30 feet. If approved, the variance for the front yard setback would be 12.34 feet, side yard 12.01 / 20 feet, and rear yard 14.47 feet. These are significant variances to setbacks. The majority of the proposed garage would be on variance land. Mr. Pearson summarized the history of this property and the variance received to construct the house in 2001. At that time, the variance request included a smaller garage. The variance was granted by the Planning Commission but appealed to City Council by neighboring property owners based on the impacts to the wetlands and the increase in storm water run -off. The neighbors hired a consultant as did Mr. Kulhanek. Consequently, the variance was modified by the City Council to exclude the smaller garage to minimize the impact on the wetland on the west side of the property. In this variance request, a portion of the westerly wetland would be filled behind a retaining wall that would be built on the west side of the house and curve down to the north side of the proposed garage. The area filled is less than 2000 sq. ft. and would become the paved driveway connecting the attached and new detached garages together with the driveway. entrance. Staff is concerned that the reduction of the stormwater storage.area could adversely impact the adjacent neighbors who appealed the previous variance. The consultant hired by Mr. Kulhanek two years ago did not model the stormwater storage and run -off using the same calculation methods that are City policy. The consultant did not model a 100 -year 24 -hour storm event, which is considered a critical event of a development like this. A 10 -day snowmelt was also not modeled. At the meeting on February 25, 2003, Mr. Kulhanek's attorney stated the consultant had no new information to add to his previous report. As a result, Staff is recommending denial of this variance request. There was a question about the difference of a 10 -day snowmelt and a 100 -year 24 -hour storm event. City Engineer Brotzler indicated the difference was in modeling the event and it is determined. by the conditions of the site or the watershed the event occurs within. The 100 -year 24 -hour event is a rainfall event. The water is typically allowed to infiltrate and flow through an outlet where as with a 10 -day snowmelt event it is a different modeling without an outlet if the outlet is plugged due to frozen conditions, etc. They take the higher of the two elevations and note that as the critical event for the watershed. Planning Commission Meeting Minutes March 11, 2003 Page 5 The wetland on the west side of the property typically has a 15 foot buffer zone and the wetland on the eastern side is a higher classification so the buffer would be 75 feet. There might be mitigation possibilities related to impacts on the buffer zones. The affect filling the wetland would have on neighbors could potentially be water in their basements. Brian Alton, Attorney for Mr. Kulhanek, stated the concern for the inundation of the septic system and for the desire to reduce the amount of fill are non - issues. The fill has been reduced from 2000 sq. ft to 1350 sq. ft. The amount of fill is considered diminimus under the Water Conservation Act and Mr. Kulhanek does have a permit to do the fill making the fill not the issue. They feel the construction of the garage will not have an impact on the wetland because it will be constructed so that any run -off would be directed away from the wetland. They didn't feel the garage itself would have any affect on the wetland. Mr. Alton stated the house is now built and fits in nicely with the neighborhood and there have been no problems with either of the wetlands. The outflow from the wetland has not been considered. Mr. Alton passed out a map that is a reduced version of the drawing used to obtain the building permits for the house. It shows a 12 -inch pipe_used at the outflow from the pond. It goes across Mr. Nelson's property to the drainage ditch on Highway 3. Mr. Alton showed the Commission photographs to showing the outflow is unobstructed and clear. This culvert is located in the northwest corner of the wetland. Based on the topography of the lot, Mr. Alton stated it was impossible to build a garage but that an accessory building is a permitted use. He stressed again that the fill is not the issue rather it is whether the garage itself will impact the wetland. Mr. Kulhanek has obtained a certificate of exemption that fits the diminimus permitting the amount of fill. The question is whether the garage can be built after the fill has been put in. They would agree to have all run- off from the garage itself be diverted from the wetland, they would provide reasonable proof that the septic system would not be affected, and that any fill be limited to the diminimus amount and no more than 1300 sq. ft if possible. Mike Kulhanek, 12355 Blanca Avenue, stated that the plan indicates an asphalt driveway but he would actually put in a cobblestone driveway to provide some area for the water to saturate in. He said the final grade of the garage will be lower than the house. If there is water coming from the cul -de -sac, it would run the way it has nun previously. It would not interfere with that run- off, it would continue to flow in the same manor. He felt the homes in the area were not up to current code and don't have the drain tile and sump systems which causes them to have water problems in their basements. He didn't feel his land would affect their properties anymore than it has previously without improvements. Mr. Kulhanek reiterated that the issue of the fill has been approved and he has a certificate giving him the okay to fill the wetland. He felt that was a separate issue. The 12 inch pipe drains the wetland so that it won't reach above that level. The level the drain pipe is at the wetland can never go above that level because it drains out at a decline to Highway 3. Since the 10 -day snowmelt had not been modeled Commissioner Schiltz asked how much the wetland would rise if the drain pipe was frozen. Mr. Kulhanek said it would have to raise approximately six feet up the sides of the pond. There was discussion on what the amount of fill on the west side of the house had to do with building the garage. Mr. Kulhanek stated that on the east side in order to limit the flow of soil into the higher quality wetland he has constructed retaining and boulder walls to limit that flow. Because of that he is limited on ways to get to his backyard so he will use this area to drive his lawn tractor to the back yard. Mr. Kulhanek was asked if he had considered filling the approved 2,000 sq. feet and moving the garage back so he didn't need as many variances. Mr. Kulhanek Plannin- Commission Meeting Minutes March 11, 2003 Pa 6 said he put the garage in that location because he wanted a clear view of the garage for security and it would be more difficult for him to come into the garage. There was discussion on where the run -off from the garage would go and Mr. Kulhanek stated he wanted to gutter the garage so that the water go towards the north. It may flow back but it would have time to saturate into the soil. The slab elevation of the garage and grading was questioned. The proposal for the garage is a little lower than the footprint of the house which was 3 feet above the ordinary high water mark. City Engineer Brotzler stated the applicant does have a certificate for the filling of the wetland. That certificate does note that until a grading plan is approved and a grading permit is acquired from the City there is to be no filling of the wetland. At this point, that permit has not been issued. Also, when the original permit was issued for building the house only there were Staff comments noting there was additional information required from the applicant related to the proposed filling of the wetland. Once the variance was modified to.exclude the garage there was no further need for that information to be provided. There was no follow -up from the City. Now that we have this application we are back to where we were with the original application two years ago. The stormwater calculations originally provided were not adequate to confirm the high water level of the pond and the impact to adjacent properties. The City still needs that information to make a recommendation. City Planner Pearson commented that there could be other options that would require less or no variance. There could be other wetland issues but he cannot recommend in favor of any variance of there are other options that require a reduced variance. At the direction of the Commission, Staff would be willing to recommend this hearing be continued so they can look at additional information provided. The Commission asked Mr. Kulhanek if he had considered a smaller building to minimize the amount of variances. He stated that since he has been in the home the 2 -car garage is not sufficient because the ordinance states RVs and boats have to be stored inside. The bigger garage would accommodate those and he wouldn't have to incur storage fees away from his home. He did mention he was open to options that City may have so that he may build his garage but he didn't want to make the garage smaller. Chairperson Weisensel reopened the public hearing. Jeff Nelson, 12334 South Robert Trail, was concerned that adequate drainage to the wetland asked for two years ago still has not been provided. The 12 -inch pipe was put in by the previous owner of his house and he is not confident that is it adequately designed to drain the wetland. He also questioned the installation. He has seen the pipe and states it is filled in with sediment. Chaiperson Weisensel asked the applicant if he wanted the Commission to move on the action at this meeting, knowing he might not get the variance. If he wanted to provide additional information to the City, the Commission could continue the public hearing. The applicant stated he would like to proceed with action by the Commission. MOTION by Napper to close the public hearing. Second by Schiltz. Ayes: Napper, Weisensel, Messner, Schiltz, Anderson. Nays: 0. Motion carried. Planning Commission Meeting Minutes March 11, 2003 Page 7 Commissioner Anderson commented that where the proposed garage sits other alternatives exist where variances would be less, although maybe less attractive to the applicant. He stated granting a variance for almost the entire portion of the garage made the least amount of sense. Commissioner Schiltz concurred. Chairperson Weisensel stated that when the original proposal for actually building on the property came forward he was in support of granting the variance to allow the building, which was considerably smaller and satisfactory to the applicant. What he is asking for now is based on economic reasons which does not support granting a variance. MOTION by Anderson to deny the variance to accessory structure standards because the applicant has not demonstrated that the variance will not adversely affect the public health, welfare, and safety and will not be injurious to property or improvements in the neighborhood as specified in Section 14.2 of the Zoning Ordinance. Second by Schiltz. Ayes: Weisensel, Messner, Schiltz, Anderson, Napper. Nays: 0. Motion carried. Mr. Pearson stated the applicant could appeal this action to the City Council. He needs to submit a letter to the Planning Department which will then be forwarded to the City Council within ten working days and must be accompanied by the fee of $165 to cover the public hearing. Chairperson Weisensel adjourned the Board of Appeals & Adjustments meeting and reconvened the Planning Commission meeting. lic Hearing: Wendy's Site Plan Review This 'te plan review is for a 4,000 sq. ft Wendy's fast food restaurant. It wil e located on the lot adjac t to KFC /AW on the east side. They wi/quired. a driveway with e KFC /AW on the southwest co er as well as sharing a driveway witrty on the ea side of the proposed restaurant. The will be another access point to thon share riveway on the south side of the site that cone is Claret and Cimarron Avene buil g will have one -way counter- clockwise circulation parking in single rows ost a north sides. There is double row parking on the west s i where the main entraT e drive -thru window is located on the east side with vehicle stac g space wrapping to the southwest side of the buildingThe plan does show more row pa ing and stacking drive -thru than is required. There would be two -way circulation on the outhem edge site. The building will be constructed with bric ve er in a light to medium brown finish. There will be three roof structures to add vertical eleme s required by the PUD agreement. The windows will be framed with red block tile accents. he anding seam metal roof, window accents and roof structures will be red, the corporate olor. Th landscaping shows shade trees on the east, west, and south edges of the site with undation s s at the front and rear elevations. More landscaping is recommended along SAH 42. Staff re mmends approval of this site plan with conditions. Dan Opitz, FourCrown, , 709 Gillfillan Lane, White Bear To nship, did pass out color renderings of the bui ing. There were no questions for the applic Chairperson W isensel opened the public hearing. There were no comet ts. MOTI " byMessner to close the public hearing. Second by Schiltz. Ayes: essner, Schiltz, An son, Napper, Weisensel. Nays: 0. Motion carried. ROSEMOU NT CITY HALL 2675 — 145th Street West Rosemount, MN 55068 -4997 Phone: 651 - 423.4411 Hearing Impaired 651 - 423.6219 Fax: 651- 423 -5203 1 rsuant to due call and notice thereof, the Regular Meeting of the Planning Commission was lie on Tuesday, February 25, 2003. Chairperson Jeff Weisensel called the meeting to o Cr at 6:30 m. with Commissioners David Anderson, Myron Napper, Jason Messner, and omas Schilt resent. Also in attendance was City Planner Rick Pearson. The meetinS� was opened with Pledge of Allegiance. Agenda: o additions or corrections. Audience Input: None. MOTION by Messner t approve the February 11, 2003 ular Planning Commission Meeting Minutes. Second by Schil . Ayes: Anderson, Napper, eisensel, Messner, Schiltz. Nays: 0. Motion carried. Chairperson Weisensel confirme with the 1 all Affidavits of Mailing and Postin V - concerning the public hearings on t ding secretary has placed on file with the City blic Hearing Notice and Affidavits of Publication Public Hearing: Stein Lot Split/ ombi \alicants This request was brought to th Tanning on February 11, 2003. Since that meeting, Staff has offered several alt atives that are considering. This application is to redistribute property ow d by Donald Stn Stein. There are no new lots being created but the redist ' tion does create t parcels of land that would not have the standard rural lot fr tage on a street. Chairperson W isensel opened the public hearing. There %Marcl, mments. MOTI by Schiltz to continue the public hearing until 2003. Second by A nderson. Ay : Napper, Weisensel, Messner, Schiltz, Anderson. Notion carried. Public Hearing: Mike Kulhanek Variance Petition Chairperson Weisensel recessed the Planning Commission Meeting and convened the Board of Appeals & Adjustments. Staff has not received any new information in this matter and, therefore, recommends continuing this public hearing until March 11, 2003. Staff was awaiting a report from Mr. Kulhanek's consultant that might help change the previous staff recommendation to deny this variance. Since this infom has not been received, Staff does not have the ability to respond to it. Planning Commission Regular Meeting Minutes February 25, 2003 Planning Commission Meeting Minutes February 25, 2003 Page 2 This variance request involves property located at the north end of Blanca Avenue. Approximately two years ago Mr. Kulhanek acquired a variance to lot area to construct the existing house in the middle of the property. This land is zoned Rural Residential and the minimum lot size is 2.5 acres. Mr. Kulhanek's lot is approximately 1 acre. The proposed garage encroaches into the setbacks. The proposed garage would require the wetland to be filled and a retaining wall to be installed. Some questions have been raised from our Water Resources Engineer, Chad Donnelly, about the impact of the wetland and its status and drainage patterns. Brian Alton, Attorney for Mike Kulhanek, stated that their consultant does not have any new information to add to the previous report prepared two years ago. There was question about the wetland and its ordinary high water mark as it affected the septic system and drain field. One thing to consider is the outlet from the wetland being several feet below the septic drain field. The presence of that outlet would alleviate any potential for inundation of the septic system that might result if fill is put into the wetland. Mr. Alton reserved the rest of his comments of the public hearing on March 11, 2003. Chairperson Weisensel opened the public hearing. There were no comments. MOTION by Napper to continue the public hearing until March 11, 2003. Second by Anderson. Ayes: Weisensel, Messner, Schiltz, Anderson, Napper. Nays: 0. Motion carried. Chairperson Weisensel adjourned the Board of Appeals & Adjustments and reconvened the Planning Commission Meeting. Pub 'c Hearing: Danner Mineral Extraction Permit Renewal 2003 T 7 n t ti p ermit x 2 t.a a P , g �,�� is rut:ne mineral , xtrac,l; n errYut - r e ne wal .h D. r�r 1ir11I7 Pit.':ocated -1?5 .. - miles eas f STH 52/56 and ' / mile south of CSAH 42. The appli ant reports approximately 115,000 ton f granular material was extracted in the last year. he pit seems to be a little behind the time in terms of its phasing as a result of the lev of work and contracts landed. There are no reque ed change to the permit so Staff reco ends approval subject to that attached conditions. Chairperson Weisensel opeled the public hearing. There were no comments. MOTION by Anderson to close e publi earing. Second by Napper. Ayes: Messner, Schiltz, Anderson, Napper, Weisen 1. ays: 0. Motion carried. MOTION by Anderson to reco end at the City Council renew the mineral extraction permit for Marlon Danner of Danner c. o subject the attached conditions for 2003. Second by Messner. Ayes: Schiltz, derson, Napper, % nsel, Messner. Nays: 0. Motion carried. Mr. Pearson stated s would most likely be City Council agenda on March 20, 2003. Pub /Rosemount's in-: Centex Homes/Minea Concept Reside tial Planned Unit Development This de ment concept mixes housing types and nsities the largest remaining parcel of land Metropolitan Urban Service Area SA). There are a number of c straints on the property including several pipelines, significant storm water ponding Planning Commission Meeting Minutes February 11, 2003 Page 4 "eve Ach, Centex Homes, stated that they are proposing a three -unit building that is single aded with the two end units being single level and the middle unit beinX , ley are t ng to provide a mix of product to their buyers. This is a new product inding a goo reception and demand for. Mr. Ach gave several examples of how type would work est for the proposed location of Bloomfield 7 th Addition. The f000r the single- ily is greater than that of the three -unit townhomes, thereby reount of impervio surface. Mr. Pearson - iphasized that this is only a concept review and tha 'f the concept is approved they will have Xeaildesign ed of the actual building footprints oposed lot lines, grading plans, landscaping anlity designs. Mr. Ach added that this wo d have more open space maintained by ssociation and they would have a full ndscape package. They are pulling the development aw from the negative impacts such s the railroad and the future Connemara Trail Chairperson Weisensel opc\ed the public MOTION by Messner to close e pub Weisensel, Messner, Anderson. sy There was no public continent. Zeanng. Second by Anderson. Ayes: Napper, Motion carried. Chairperson Weisensel stated th' is a g d solution to a difficult area. He likes the buffer area off the railroad tracks and thi s the peop iving there will too. He also likes the reduced impact on the wetlands. also likes the hou 'ng articulation. He is not concerned with the increased unit counts. MOTION by Me er to recommend that the City Co cil approve the concept Planned Unit Development endment subject to: 1. Conf ance with the requirements for preliminary/ 1 1 planned unit development. 2. Re Wing to R -2, Moderate Density Residential. Second y Napper. Ayes: Weisensel, Messner, Anderson, Napper. ays: 0. Motion carried. /Pearson stated this will go to the City Council probably on February 2Q, 2003 and at that e will take action on the concept application. Public Hearing: Mike Kulhanek Variance Chairperson Weisensel recessed the Planning Commission Meeting and convened the Board of Appeals and Adjustments Meeting. Mr. Pearson informed the Commission that the applicant, through his attorney, has requested this hearing be continued until February 25, 2003, to allow them more time to revise their plan and address some key issues with regards to the wetlands on the property. Chairperson Weisensel opened the public hearing. Chairperson Weisensel noted an email received from Phil and Karen Casselman in opposition of this variance request. Planning Commission Meeting Minutes February 11, 2003 Page 5 Tracy Dougherty, 12370 Blanca Avenue, is a neighbor of Mr. Kulhanek's. She requested Mr. Pearson give a brief presentation on what Mr. Kulhanek is asking for. Mr. Pearson stated that the applicant's property is located at the northern end of Blanca Avenue. A couple of years ago he obtained a variance to build his house that sits between two pre- existing lots that were combined to create a building pad between two wetlands. It is zoned rural residential and the required lot size is 2.5 acres. These two lots combined equal about one acre so Mr. Kulhanek was granted a variance to lot area size for the house. Mr. Kulhanek's overall package placed the house between two existing wetlands. On the eastern side is a significant wetland of fairly high quality and on the western side is a smaller wetland of slightly lower classification and smaller buffer zone. A portion of that buffer zone was impacted with the construction of the house. At that same time the applicant also requested a detached structure on the south side of the wetland and a paved surface area connecting it to the driveway to the garage attached to the house. Acting as the Board of Appeals, the Planning Commission granted the variance for setbacks and lot area for both the house and detached building. A few neighbors appealed the variance to the City Council who overturned the variance granted. They granted a modified variance that only included the house and deluded the detached structure because there was impact to the wetland, that capacity of the wetland was being reduced and the appellants had a stormwater study prepared by a consultant that indicated potential problems with impacting these wetlands and reducing the stormwater capacity. Mr. Kulhanek is asking again for a variance, which is his right, for a three -car garage. The request also includes a retaining wall and a portion of the wetland to be filled. Staff was very concerned about the variances and the impact of the wetlands. The applicant has not dealt with the stormwater issue which was a condition placed on the modified variance. Staff feels that because there has been no shown attempt to maintain the storage capacity of this wetland Staff feels since the first finding of the variance deals with health, safety, welfary, they cannot support this variance. Staff is hoping that Mr. Kulhanek will use the next two weeks to revise his plans and address the stormwater issues. Betty Scl meider, 12365 Blanca Avenue, is the neighbor to the southwest of Mr. Kulhanek's. She is opposed to the variance for the same reasons as stated a few years ago and as Mr. Pearson mentioned. She is concerned with the valuation of her property and the probable change in water tables that will affect her property. She also has enjoyed the wildlife and would hate to see that destroyed. Commissioner Napper inquired about a swale on the property and if it was considered a wetland. Ms. Schneider stated that at one time the area where Mr. Kulhanek's house is was one big wetland. When Don Christiansen developed the south end of Blanca Avenue he didn't know what to do with all the dirt so he took it and divided the wetland. Jeff Nelson, 12334 South Robert Trail, lives just west of Mr. Kulhanek. He is also opposed to the variance for the same reasons already stated. He is concerned with the impact of filling the wetlands. The wetland on the west side does not always have water accumulated. It depends on the amount of snow and rain in a given year. Planning Commission Meeting Minutes February 11, 2003 Page 6 Tracy Dougherty, asked is she would be able to speak at the meeting on February 25, 2003. Chairperson Weisensel stated she could speak tonight or at the next meeting. Mr. Pearson stated the applicant had hoped that all public comment would be deferred for two weeks so they could have an opportunity to respond. Ms. Dougherty asked how much he wanted to fill and if the study they had prepared a few years ago would apply to what Mr. Kulhanek is asking for now.. Mr. Pearson stated he believed Mr. Kulhanek was asking to fill about 1500 square feet and that the study does have merit and gives the Planning Commission and City Council more information on the property. That study was very instrumental in the City Council modifying the variance granted. The Planning Commission, acting as the Board of Appeals and Adjustments, has not yet made a decision and are hoping to receive additional information from the applicant. MOTION by Anderson to continue the public hearing until February 25, 2003. Second by Messner. Ayes: Messner, Anderson, Napper, Weisensel. Nays: 0. Motion carried. Chairperson Weisensel asked that the next packet include a copy of the study prepared, a copy of the meeting minutes when the variance was granted and any information the City took into consideration to overturn that variance. Mr. Pearson stated that most of this information is being reviewed by Chad Donnelly, our Wetland Resources Engineer. Mr. Pearson also stated he is expecting Mr. Donnelly to put together a package. Chairperson adjourned the Board of Appeals and Adjustments meeting and Reconvened the Plarming Commission Meeting. Business: None. New Bu ' ess: Bloomfield 5th Final Plat Update Mr. Pearson ormed the Commission that the final plat for oomfield.5 Addition extended the lot lines on t east side all the way across the prope over a significant ponding basin. Refined design work r the ponding basin has been c zpleted and includes a planting plan. The final plat is being m ified on the recommen ion of the City Engineer so that the opposite sides of the ponds from the kyards of these is would not have to be maintained by the owners of those lots. The modi ation wil reate an outlot for the perimeter of that pond. Mr. Pearson wanted to inform the Com ' s' n for when the mylars come in and look different than the approved final plat. NXAddition ness: Biscayne Po' to 5 th Final Pla Tplat is the last s p in the planning proces o create single family lots for sale. The plonformance the R -1, Low Density Residen ' 1 standards and preliminary plat. This dent is eas of Biscayne Avenue and north of the emara Trail alignment. There are 3appr rmately 12 acres. Steve Bona of Heritage Dev meat is present to answer anon . Staff is recommending approval subject to the four c ditions. M by Anderson to recommend that the City Council approve the fin lat for Biscayne PAdAddition subject to 1. Execution of a subdivision development agreement to secure public infrastructure and private improvements. FINDINGS The Board of Appeals and Adjustments and the City Council, upon appeal, must find as follows in the granting of a variance from this ordinance: Granting a variance will not adversely affect the public health, welfare and safety and will not be detrimental or injurious to property or improvements. in the neighborhood. 2. Strict interpretation or enforcement would result in a practical difficulty or unnecessary hardship inconsistent with the intent of this Ordinance and the Comprehensive Guide Plan. 3. There are exceptional or extraordinary circumstances or conditions applicable to the property, use or facilities that do not apply generally to other properties in the same district. 4. Strict or literal interpretation would deprive the applicant of the use and enjoyment of his property in a manner similar to other owners in the same district. 5. Granting of the variance will not allow a use which is otherwise not a permitted use in the zoning district in question.