HomeMy WebLinkAboutResolution - 94-140 - Findings, Conclusions & Decision Re: Preliminary Plat of Purgatory Creek Estates - 09/06/1994 PURGATORY CRFXX ESTATES
CITY OF XDBN PRAIRIE
HENNEPIN COUNTY, KINNESOTA
RLSOLUTION No. 9 4 - z 4 0
FINDINGS, CONCLUSIONS, AND DECISION
RE: PRELIMINARY PLAT OF PURGATORY CREEK ESTATES
The Council of the City of Eden Prairie makes the following
findings, conclusions and reasons in.support of its decision in the
matter of the Preliminary Plat of Purgatory Creek Estates :
BACKGROUND
Post Construction ( "Post") is the owner of property located at
12381 Sunnybrook Road, Eden Prairie, Minnesota, legally described
as follows :
Tract G, RLS #751, on file and of record in
the office of the Registrar of Title, Hennepin
County, Minnesota,
hereafter referred to as (the "land" ) _
The land consists of 4 . 98 acres . Post applied to the City for
•a Comprehensive Guide Plan change from Open Space to Low Density
Residential of two (2) acres, rezoning from Rural to R-1-13 .5
of the land and approval of a preliminary plat of the land into
seven (7) lots for single-family dwellings and one (1) outlot (the
"Preliminary Plat" ) . The Planning Commission considered the matter
on March 14, 1994 and recommended to the City Council denial of the
request for zoning district change and for Preliminary Plat
approval . The project was reviewed by the Park, Recreation and
Natural Resources Commission on March 21, 1994, which also
recommended denial of the project because of the wetland impacts .
FINDINGS AND CONCLUSIONS
Flood Plain Alteration
1 . 2 . 9 acres of the land are situated within the Purgatory
Creek Flood Plain ( "Flood Plain" ) .
2 . The Preliminary Plat would require filling .36 acres of
the Flood Plain with 1560 cubic yards of soil, which
would result in raising the elevation of that part of the
land filled from two (2) to ten (10) feet above the Flood
Plain_
3 . Alteration of the land pursuant to the Preliminary Plat
would require a storm water facility designed and
constructed based upon National Urban Runoff Program
design criteria pursuant to City Code Section 11.55,
Subd, 7 . A. 10, which includes a permanent pond having a
surface area equal to two percent (2%) of the impervious
area draining to the pond or one percent (1%) of the
entire area draining to the pond, whichever amount is
greater, an average permanent pool depth of 4 to 10 feet,
a pool length to width ratio of 3 to 1 or greater, and a
minimum protective shelf extending 10 feet into the
permanent pool with a slope of 10 to 1 beyond which
slopes should not exceed 3 to 1 ( "NURP pond' ) .
4. The Preliminary Plat provides for construction of the
NURP pond within the Flood Plain which would require
excavation in the Flood Plain.
5 . City Code Section 11 .45, Subd. 4. B. and Subd_ 5. A_
provide that no land may be filled or excavated within a
flood plain without a permit from the City_ A permit
authorizing such activity by the City may be given only
pursuant to a valid permit issued by the managers of a
Watershed District or the Minnesota Department of Natural
Resources to fill or excavate a Flood Plain. No permit
to authorize the filling of any part of the Flood Plain
has been issued by the managers of a Watershed District
or the Minnesota Department of Natural Resources .
Wetland Alteration
6 . 2 .85 acres of the land are situated within a wetland
"Wetland" ) .
7.. The Wetland is located within the Flood Plain-
B . The Preliminary Plat provides for filling .31 acre of the
Wetland and encroaching into an additional .06 acre of
Wetland.
9 . While a permit was given to Post by the Department of the
Army Corps of Engineers for filling .17 acres of the
Wetland, Post requested the Corps of Engineers to review
a new plan (encompassed within the Preliminary Plat) that
involves an additional .14 acre fill, and .06 acre
encroachment of the Wetland. Post was advised that the
new plan requires the Corps to issue another public
notice and to conduct a second public interest review.
Further, that the new proposal requires the Corps to look
again at the question of alternatives to the Wetland
encroachment . Previous approval relating to the .17
acres was predicated upon, among other things, minimal
-2-
fill and no additional Wetland impacts. The Corps went on
to advise that the original proposal revealed concerns
about adverse impacts and it seems likely that the
greater wetland encroachment of the new proposal will
generate similar but greater concerns_ " (See letter,
Corps of Engineers, dated February 28, 1994 to John Brian
post) There is no evidence that the Corps of Engineers
has issued a permit for filling the additional Wetland.
10_ The Preliminary Plat is in conflict with City Code in the
following respects !
A. The Preliminary Plat is in conflict with the City`s
zoning regulations (City Code Section 12 .04, Subd.
5. C. 1 . ) - These include:
(i) The proposed filling and excavation of the
Flood Plain would be contrary to City Code
Section 11.45, Subd. 4. No permit to fill or
excavate the Flood Plain has been issued by
managers of the appropriate Watershed District
or the Minnesota Department of Natural
Resources .
(ii) The proposed filling and excavation in the
Flood Plain would be incompatible with
preservation of vegetation, marshes and wet
areas of the Flood Plain contiguous to
Purgatory Creek which are principal factors in
the maintenance of constant rates of water
flow and is prohibited by City Code Section
11 .45, Subd. 6. F. 3 .
(iii) Filling and excavating the Flood Plain and
Wetland (land alteration) is contrary to City
Code Section 11.55, Subd. 5. C. because
(a) The physical characteristics of the Flood
Plain and Wetland with respect to
flooding, water storage and retention are
such that they are not suitable for
alteration or the use contemplated.
(b) The land alteration is likely to cause
substantial environmental damage.
(c) The land alteration will be detrimental
to the health and general welfare of the
public.
B. The Preliminary Plat is in conflict with other
provisions of City Code Section 12 .04, Subd. 5. C.
-3-
in the following respects:
(i) The Flood Plain and the Wetland are
susceptible to flooding, and the needs for
water storage and retention are such that it
is not suitable for the type of development or
use contemplated, i .e. , filling and
excavating.
(ii) The Flood Plain and the Wetland are not
physically suitable for the proposed density
of development_
(iii) insofar as it includes the need to alter
portions of the Flood Plain and Wetland it is
likely to cause substantial environmental
damage ,
(iv) The filling of portions of the Flood Plain and
the Wetland would be detrimental to the health
and general welfare of the public.
11 , Minnesota Statutes, §103G.222 expresses the policy of the
State of Minnesota with respect to the filling of
wetlands . That statute states that the first order of
priority is avoiding the direct or indirect impact of an
activity that may destroy or diminish a wetland, i.e. , a
no-fill alternative. The proposed filling of the wetland
would violate that public policy. The fifth order of
priority is that of replacing wetlands. Replacement must
be in the same watershed district and must be at the rate
of two (2) units of replacement for each unit of wetlands
lost . Post has not obtained a permit for, own, acquired,
or specifically identified replacement wetlands.
12 . A subdivision providing for five (5) lots on which
dwellings could be built would not require excavation in
the Flood Plain for the construction of a NURP pond.
13 . A subdivision which provides for five (5) lots on which
dwellings could be built, rather then the seven (7)
proposed, would avoid the need to fill the Wetland or the
Flood Plain and would be in accordance, and not conflict,
with City Code. A revised preliminary plat in the form
of Exhibit A, attached hereto and made a part hereof,
providing for five (5) lots on which dwellings could be
built, and one (1.) outlot would avoid the need to fill
the Wetland or the Flood Plain and would be in
accordance, and not conflict, with City Code.
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DECISION
BE IT RESOLVED, by the Eden Prairie City Council as follows:
Based upon the foregoing findings and reasons the City
Council hereby denies approval of the Preliminary Plat, but
approves a preliminary plat as revised in accordance with
Exhibit A attached hereto and made a part hereof ( "Revised
Preliminary Plat" ) , subject to receipt of, and approval by,
the City Engineer of grading and utility plans, provided
however, the configuration of the Revised Preliminary Plat and
lot lines may be modified as necessary or appropriate so long
as such modification (a) does not result in a plat containing
more than five (5) lots on which dwellings could be
constructed, together with one (1) outlot, (b) would not
require any filling or excavation of the Flood Plain or the
Wetland, and (c) would not otherwise cause the Revised
Preliminary Plat to be in violation of any provision of the
City Code.
ADOPTED by the City Counc' the G h day of e
1994.
R fiA
1� 4 B� W*
Douglas npas, Mayor
(Seal)
ATTEST:
Joh Frane, Clerk
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EXHIBIT A
PUR64 TORY CREEK ESU MS
REVISED PREZIM/NOY PLAT