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Planning Commission - 12/12/2016 APPROVED MINUTES EDEN PRAIRIE PLANNING COMMISSION MONDAY, DECEMBER 12, 2016 7:00 P.M., CITY CENTER Council Chambers 8080 Mitchell Road COMMISSION MEMBERS: Jon Stoltz, John Kirk, Travis Wuttke, Ann Higgins, Charles Weber, Andrew Pieper, Ed Farr, Mark Freiberg, Tom Poul CITY STAFF: Julie Klima, City Planner Rod Rue, City Engineer Matt Bourne, Manager of Parks and Natural Resources Julie Krull, Recording Secretary I. PLEDGE OF ALLEGIANCE—ROLL CALL Acting Vice Chair Farr called the meeting to order at 7:00 p.m. Kirk, Pieper, Stoltz and Weber were absent. II. APPROVAL OF AGENDA MOTION: Higgins moved, seconded by Freiberg, to approve the agenda. Motion carried 5-0. III. MINUTES A. PLANNING COMMISSION MEETING HELD ON NOVEMBER 14, 2016 MOTION: Freiberg moved, seconded by Higgins, to approve the Planning Commission Minutes. Motion carried 5-0. IV. INFORMATIONAL MEETINGS V. PUBLIC MEETINGS VI. PUBLIC HEARINGS A. ERS ESTATES LAKE ACCESS & DOCK Location: 12551 Beach Circle Request for: PLANNING COMMISSION MINUTES December 12, 2016 Page 2 • Appeal of staff determination that the legal non-conforming status of a second dock located at 12530 Beach Circle has ceased Klima said this is an appeal of staff determination. In this instance, the dock operates as a non-conforming use status. Earlier this year, the property owner at 12551 Beach Circle sought confirmation from City Staff that the non-conforming use of a second dock serving property not abutting the lake remained as a protected non-conforming use. The history on this is in 1965, the property was sold by the original developer along with a non-exclusive easement over the southeasterly 20 feet of the property located at 12530 Beach Circle for the purpose of access to Bryant's Long Lake and for the purpose of maintaining a dock on the shore. The property remained under the same ownership until 2005 when it was sold to ERS Development LLC. As part of the 2005 transaction, the deed conveyed the 12551 Beach Circle property along with the non-exclusive easement noted above. The 1965 easement document allowed for the placement of a dock at the 12530 Beach Circle property. The owners of 12530 Beach Circle also have installed a dock to Bryant Lake from their property resulting in two docks on this parcel. The use of the second dock has been a non-conforming use since at least 1996, when the City Code regulations were adopted limiting docks only to lots abutting the lakeshore and limiting docks to one per lot. ERS Development states that the property at 12551 Beach Circle has been vacant since its purchase in 2005 and that there has been no use of the access easement or dock. Klima stated City Code Section 11.75 states the following with regard to non- conforming uses, "Non-conforming uses may be continued, including through repair, replacement, restoration, maintenance or improvement, but not including expansion, unless the following conditions apply: A. A non-conforming use is discontinued for a period of more than one year•, or B. The non-conforming use is destroyed by fire or other peril Klima said ERS Development states that the use has not been continued since purchase of the property in 2005, ERS Development alleges that there was no intent to abandon the non-conforming use. Klima stated the City has been in conversation with the City Attorney, Richard Rosow. Staff recommends that the staff determination that the non-conforming status of the dock located at 12530 Beach Circle serving the property at 12551 Beach Circle has ceased be upheld. Mr. Rosow said the MN State Statue involved in this determination is 462.357 and uses the same language as the City Code, which was amended in September of 2005 to use the language that is in the state statute. The property owner has a right to appeal and the Commission has to provide findings supporting its decision. The Commission should direct staff to prepare findings to either sustain the staff decision or overrule the staff decision. The next Planning Commission meeting staff would bring back findings and a written order. PLANNING COMMISSION MINUTES December 12, 2016 Page 3 Klima said in the packet there is a letter from a homeowner and a golden rod sheet that is in front of Commissioners from the homeowner at 12535 Beach Circle for the record. Acting Vice Chair Farr asked the appellant to come forward to discuss the determination of City Staff. Peter Beck, attorney speaking on behalf of Dr. Elmer Salovich, came forward to discuss the determination. He stated there was a letter from him in the Commissioner's packet. Mr. Beck said they disagree with the City's decision and pointed out it would take hundreds of thousands of dollars away from the sale of this property. He also stated he has an issue with the 2006 staff report. There is nothing in the staff report stating"continually". When Dr. Salovich bought the property he was under the assumption he could have a dock on his property and now it is not reasonable that this dock be taken away. This is a property owner that has invested a lot of money in his property and because he was not living there it is wrong that he should not be able to have a dock there. This constitutes property value loss as there was a prospective buyer for the property that has recently pulled his offer because of this. Dr. Elmer Robert Salovich introduced himself and said he is the sole owner or ERS Development, which is the sole owner of 1255113each Circle, which is legally described as Lot 2, Block 1, ERS Estates. He read to the Commissioners his letter that was in the packet. He stated he purchased Lot 10, Block 1, The Cove, which includes the home at 12551 Beach Circle in 2005 for$952,937. The deed to this lot included a nonexclusive easement over the southeasterly 20 feet of Lot 8, Block 1. He pointed out he did have a discussion with the City after the purchasing of Lot 10, Block 1. He asked them what size docks could fit in that area. He was told it would be the same requirements as the other homeowners that live around the lakes. Mr. Salovich explained to the City that his main concern was to rehabilitate the house, and once the house was done he would put in a dock. Mr. Salovich said the final cost of renovation was $1,198,662. To recover some of the costs in 2006 he subdivided Lot 10, Block 1 into two parcels. Mr. Salovich pointed out that at that time, or since, did anyone from the City tell him that in order to maintain the dock rights recognized in the 2006 staff report that it would be necessary to put a dock in the lake each year, even though the property was vacant. Mr. Salovich said to date; he has not been able to sell Lot 1, Block 1, ERS Estates, which does not have any access or dock rights to the lake. Lot 2, Block 1, ERS Estates, with the renovated home,had a potential buyer but he has since pulled out because of the uncertainty of the right to install a dock and hearing that City Staff took the position that the lot does not have the right to a dock. Mr. Salovich reiterated again that no one from the City told him he had to put in a dock in a certain amount of time. City Staff stated when he is ready to install the dock, come in and they will help with the size. If the City takes the deeded right to install a dock on the lake, he said he will incur an additional loss of$400,000 or more. PLANNING COMMISSION MINUTES December 12, 2016 Page 4 Heather Hanson, of 5090 Kelsey Drive, Edina, is Mr. Salovich's realtor. She said when they put the property up for sale; they had a lot of interest in the property and had one potential buyer, being contingent that the dock be allowed to be put in. Freiberg asked if the offer is currently on the table. Ms. Hanson said they did withdraw the offer. Mr. Beck stated the home has not been marketed without the dock rights. Wuttke asked how much the house is marketed for. Mr. Beck said approximately $950,000 with dock rights, but the buyer who is here tonight can verify the amount. Wuttke asked if a market study was done for the value without the dock rights. Mr. Beck said they have not asked Ms. Hanson to come up with a listing price without the dock rights because they thought they had them. Wuttke asked if there have been any offers for the lot that does not have dock rights. Mr. Beck said it is listed at$325,000 and they have had no offers on it; $308,000 is what Hennepin County assessed it at. Wuttke asked what the County assessed the other property at. Mr. Beck said they had not re-assessed it since the improvements were made so pre-completion they assessed it at$550,600. Mr. Beck said they would not be here if they did not feel it was a several hundred thousand dollar issue. They are not disagreeing that there was a period of over a year without a dock there; they just do not believe the City has a right to take it away because there was not intent to abandon the use as the owner was just renovating it. Wuttke asked why it had taken the City Attorney's office so long to send Mr. Beck the letter dated June 29, 2016, that was included in the packet. Mr. Beck said he had just received the letter last week and has not had an opportunity to respond. Mr. Rosow said this letter initially went to City Staff as an attorney client confidential letter. Klima asked if the attorney client privileges could be waived and have this letter included in the Commission packet. Mr. Rosow said they took the confidentiality notation out of the letter and sent it out but did not change the date the letter was prepared. Mr. Beck said the issue is not the date of the letter but the loss of the dock rights to Mr. Salovich. Acting Vice Chair Farr opened the meeting up for public input. Mark Eckstein, of 7213 Monardo Lane, Eden Prairie, said he is the prospective buyer and made an offer back in April under the assumption he would have dock rights. He stated they have recently withdrawn their offer because of the issue with the boat dock. He also pointed out he is the one that asked that the dock rights be verified. Wuttke asked if he would have made an offer without dock rights. Mr. Eckstein said he would not of because of the cost of the property. Bruce Paradis, of 12530 Beach Circle, came forward and said he submitted an email in the packet. He stated the easement runs along 20 feet of his property. He said in 2006, when the property was subdivided, he assumed a third property was going to be created. The reason there was not a third easement was because he and the neighbors had to pay Dr. Salovich not to create an easement on the third parcel of PLANNING COMMISSION MINUTES December 12, 2016 Page 5 property. He stated this property has been a mess for the past 10 years. He has offered to purchase the property but Dr. Salovich said he had too much money invested in it. Prior to 10 years ago, the dock was actually abandoned and he and his neighbor had to pay to get rid of it When the property became listed,he wanted to sit down with Dr. Salovich and the realtor and talk about the easement,but they did not seem too enthused. Mr. Paradis said he supports Staff decision even though he owns a portion of this land with the easement. Wuttke asked Mr. Paradis what he means by abandoned easement. Mr. Paradis said the parcel created in 2006 is not covered by the easement. Mr. Paradis recently purchased the property at 12550 Beach Circle and intends to have the easement rights for that lot eliminated. Wuttke asked what abandon means. Mr. Rosow said abandon means an intention under law to release your rights. In the case of the easement, if it was unused for a long time, it could mean abandon. Mr. Rosow pointed out in this situation we are not talking about the issue of the easement itself or the access rights but rather discussing the use of the dock. David Stein, of 6741 Beach Road, said he have lived there since 1991. He is not in favor or opposing what Dr. Salovich is stating,but may add clarification for the decision tonight. Mr. Stein said he has a dock that is conforming and he uses rail systems to take out his pontoon and boat. He stated if one were to look in the area at 12530 Beach Road and the lot next to it, there is not much room for docks in that area and a rail system may help. Laura Helmer, of 6941 Beach Road, said she would like the Commission to sustain the City Staff decision. Mr. Beck said he would like to respond to a few things. In 2006, Dr. Paradis did not challenge the Staff report decision that there was the right for another dock, What is new to all, is the dock that was there was not taken out by the previous owner or Dr. Salovich,but rather Dr. Paradis and the question to ask is if it will still have the same affect or depriving the owner of dock rights. In regards to Dr. Paradis, Dr. Salovich and Ms. Hanson meeting, he was not there and it was an unsuccessful meeting. Freiberg said he is looking at the letter that is in the packet and wants to know if the homeowner was ever notified of the time frame. Mr. Rosow said they do not notify homeowners. He stated at the time of the subdivision there was not a year that had been lapsed, so the use was non-conforming at that time. Freiberg asked how the homeowner would know the clock is ticking on a discontinued decision. Mr. Rosow said the rules were changed and the homeowner is responsible to know of the changes. PLANNING COMMISSION MINUTES December 12, 2016 Page 6 Acting Vice Chair Farr said From the standpoint of the City duty,he asked Mr. Rosow to clarify. Mr. Rosow said the City must make published notices in the newspaper for amendments to City Code and that satisfies laws for due process. Freiberg said he understands the legality of what Mr. Rosow is saying but he does not agree with it. Higgins asked that the properties that could have used docks prior to these changes, did everyone use them? She specifically was interested if the Turner property had a dock. Mr. Paradis said he has lived at his property for 25 years and the Turners lived there while he has been there and he said there was a dock there and a pontoon boat tied to it but he believes it was the neighbor's pontoon as the Turners were elderly. Mr. Paradis said as point of clarification,he stated they did not remove the dock from the lake but rather removed it from the lake as it floated down into their property. Acting Vice Chair Farr asked if there could be a lack of maintenance with this situation. Mr. Rosow said he did not believe the act of maintaining would affect the decision tonight. Acting Vice Chair Farr asked the Commissioners to address the topic of duty to discover, and pointed out due diligence is usually taken on by the buyer. Wuttke said the duty to discover should rely on the buyer, but the seller's agent should let them know if anything has changed. It should be put on both the buyer and seller to get that information. Klima commented that non-conforming issues that were revised in 2005 were for all uses and not just docks, and Staff routinely provides education when the public calls in. Acting Vice Chair Farr said the appellant felt like no one notified him in 2006, so what could he have done differently. Klima said at the time the property was subdivided, a year had not passed, so the use was protected under non-conforming status at that time. Wuttke commented in regard to burden of proof to the land owner, what constitutes use. Mr. Rosow stated if the dock was out in the water it constitutes use,regardless if anyone is using it. Acting Vice Chair Farr asked the Commissioners stand on this topic. Wuttke asked if the Commission is charged with coming up with findings this evening. Acting Vice Chair Farr stated they are to come up with findings this evening. Mr. Rosow stated it is helpful to have findings articulated tonight, so staff can use that information to draft findings for the commission to consider at its next meeting. Acting Vice Chair Farr said he will summarize his opinion. Based on the discussion tonight he feels the duty lies in the purchaser and he is in favor to sustain the City's decision. Poul said he supports Staff s decision. Higgins said she agrees with Acting Vice Chair Farr and Poul. She stated in this instance, where property owners have access to the body of water, it seems that they buyer should be looking PLANNING COMMISSION MINUTES December 12, 2016 Page 7 into the findings of the property and it should also be reasonable to fall on the person renovating this property. Freiberg said he has a hard time with the fact that over the 10 year time frame, there was no communication between the City and the homeowner. Just publicizing it in the paper is not enough and based on that Freiberg stated his vote is to overturn the decision of City Staff. Wuttke said he is leaning to overturning this decision also. The easement has been memorialized since 1964 to present with this property and others in this area. The reason for this easement is to hold a boat dock on the shore. Wuttke said he understands the City Code's reasoning to limit the number of docks on a parcel of property, but when thinking about easement rights the future valuation of the property should be taken into account. The removal of the easement would depreciate the valuation of the property. Acting Vice Chair Farr said the Commission is to make a motion to uphold or overturn Staff s determination and to direct Staff to report findings accordingly. Mr. Rosow said the Commission could make a motion to direct preparation of findings in support of Staff decision or preparation of findings in overruling Staff s decision. Wuttke stated his concern is the other Commission members missing from tonight's meeting and the next meeting they will not have heard what was discussed this evening and may not make a decision based on the information discussed. Acting Vice Chair Farr said he would like to make a decision this evening. The other Commission members concurred. MOTION: Poul moved, seconded by Freiberg, to direct Staff to prepare findings to uphold the determination of Staff that the non-conforming status of a dock located at 12530 Beach Circle serving property at 12551 Beach Circle has ceased. Motion carried 3-2. Freiberg and Wuttke objected. VII. PLANNERS' REPORT A. 2017 PLANNING COMMISSION WORK PLAN Klima said the next Planning Commission meeting will be January 9t', 2017. Klima said in regards to the 2017 Work Plan, Staff is proposing a work plan to include educational or policy discussions which may occur if there are not development applications to review at a particular meeting. She stated she is looking for the approval from the Commission to approve this plan. Higgins asked, in regards to item C, is this different than what has been done in the past? Klima said that is part of the City's By-laws and has not changed. MOTION: Wuttke moved, seconded by Freiberg, to approve the 2017 work plan. Motion carried 5-0. PLANNING COMMISSION MINUTES December 12, 2016 Page 8 VIII. MEMBERS' REPORT IX. CONTINUING BUSINESS X. NEW BUSINESS Wuttke commented he would like to see internal conversations in regards to the issues that transpired this evening. XI. ADJOURNMENT MOTION: Wuttke moved, seconded by Higgins, to adjourn the Planning Commission meeting. Motion carried 5-0. Acting Vice Chair Farr adjourned the meeting at 9:05 p.m.