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
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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
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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
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December 12, 2016
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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
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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
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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.
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December 12, 2016
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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.