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Page 1 of Kathy Glanzer From: Stephen Grittman [sgrittman @nacplanning.comj Sent: Wednesday, October 24, 2007 9:10 AM To: Joel Hanson Subject: Richie Place Joel — 1 read, with interest, the letter addressed to the City Council regarding the Planning Commission's consideration of the Richie Place cul -de -sac variance. Since my comments on this application were mentioned prominently, I thought I might respond to some of the items which, I believe, need some clarification. 1. The letter objects to the fact that that the application did not provide support for a showing of hardship, and states that staff (and specifically the City Planner) had acted as advocates for the application — evidenced by the fact that the Planner came up with the reasons for the variance, rather than the applicant. This issue was raised at the Planning Commission meeting. My response to this at the meeting was, and is, that it is not my job to weigh arguments for or against a proposal. Instead, it is my job to weigh the proposal against the Comprehensive Plan and the City's development regulations. My recommendation is not based on whether one party or another makes persuasive case for or against a project. It is based on what I read to be the Goals, Objectives, and Policies of the City's land use planning documents. 2. The letter claims that I instructed the Planning Commission not to read materials submitted by the community prior to the public hearing. I am not sure what this refers to, unless it is the attorney's material presented to the City Council previously. The Chair indicated that they did not have time to review that material, and thus could not respond to it. 3. The letter claims that the Planner incorrectly instructed the Planning Commission on the variance standards. This is not a correct statement of the facts. Our staff report quotes the sections of the Subdivision Ordinance related to variance consideration, which are (in summary): Undue hardship in complying with the terms of the ordinance; and three specific findings (a) special and highly unique circumstances affecting the property which would deprive the applicant of reasonable and minimum use of his land; (b) that the variance will not be detrimental to the public health welfare, or injurious to other property; and (c) the variance is to correct inequities resulting from extreme hardship limited to topography soils, or other physical factors of the land. The letter focuses on "minimum" use of the land, and an older case law standard that relies on whether the ordinance would allow "any" use. This is not the current legal test — minimum use would clearly be one single family home. A shorter cul -de -sac would also allow some use of the property, but the question is whether this is "reasonable ". There is case law (see Nolan v. City of Eden Prairie) that redefines the standard as being whether the use proposed by the applicant is a reasonable one, not whether it is the only, or minimum, use. This case is broadly cited now as the standard for variance review. 4. The letter claims that the standard for avoiding detrimental impacts to public health, welfare, or injurious to other property was not addressed. In fact, it was, just not with the results hoped for by the letter writers. The staff report identifies the fact that rather than being detrimental, the plat as proposed would reduce stormwater flow toward the flood -prone land to the west, that other lands would benefit be gaining potential access for future development, and that the plat, including the cul -de -sac, is an important piece in eventually resolving other access issues in the area as well as potentially helping to provide sanitary sewer and water service to a broad area that currently is not served — and thus is an environmental and public safety improvement. 5. The letter claims that the applicant has not shown that the variance "fails to correct inequities from extreme hardship limited to topography, soils, or other physical factors of the land." In fact, the physical factor of the land in question include shape, soils, and topography. The shape of the land does not permit any other way to access it. There is no other way to address this issue, and the shape is a "physical factor of the land ". Topography and soils are also relevant. It is not practical to place connecting streets farther to the north due to topography that would inhibit the development and grade of those streets, or the location of an existing wetland on the Himmelbach property. Although the letter- writers claim that other connections were discussed and approved, - 2 3 - 10/24/2007