HomeMy WebLinkAbout#20 - Variance Amendment Request - 8950 Lake Jane TrSTAFF REPORT
DATE: 10/6/2020
REGULAR
TO: City Council
FROM: Ben Prchal, City Planner
AGENDA ITEM: Variance Condition Amendment(s) Approval – 8950 Lake Jane Trail
REVIEWED BY: Ken Roberts, Planning Director
Planning Commission
BACKGROUND:
The City has received a request from Steve and Haley Meisterling, owners of the property located at 8950 Lake
Jane Trail to amend the variances that were received by the City for their property by removing certain conditions
of approval of those variances and also removal of a restrictive covenant that applies to their property. In 2002, the
previous owners of the property received City approval of variances to build a home on the property. This approval
consisted of a setback variance from the ordinary high-water level of Lake Jane and from the street right-of way.
During the time of review (2002), City staff initially recommend denial of the variance requests. The Planning
Commission opted to table the requests so the applicants could re-design/reconfigure their requests. After doing so,
the applicants proposed a new site plan as well as a plan to preserve the remainder of the property, which resulted
in a recommendation of approval of the variances by City Staff as well as the Planning Commission. The City
Council then approved the variances with a condition of approval being the preservation of the remainder of the
property that required the recording of a restrictive covenant on the property in order to ensure preservation (see
attached City Council Resolution No. 2002-106 and Restrictive Covenant). The applicants are now requesting to amend
the 2002 variances by removing the conditions of approval pertaining to preservation. This would include the
removal of the restrictive covenant that is recorded against the property. The Planning Commission reviewed the
request August 24th and has provided its comments, the City Council reviewed the request on September 15th, 2020
and at that meeting directed City Staff to prepare findings for approval.
ISSUE BEFORE CITY COUNCIL:
The City Council is being asked to review and make a determination on the drafted resolution (2020-082).
REVIEW/ANALYSIS:
PID 09.029.21.41.0002
Existing Land Use/Zoning: Single-family residential home - Rural Single Family (RS).
Surrounding Land Use/ Zoning: Surrounded by single family homes guided for Rural Single Family / Rural Single
Family
History: Variances approved in 2002 to build the house on the property.
Deadline for Action:
Application Complete – 7/17/2020
60 Day Deadline – 9/15/2020
Extension Letter Mailed – 9/4/2020
120 Day Deadline – N/A
Applicable Regulations: Article V - Zoning Administration and Enforcement
Article XVIII – Shoreland Management Overlay District
Article XI – Rural Districts
REQUEST AND DETAILS
The applicants were asked to provide justification as to why certain conditions of approval of the 2002
variances should be amended and considered for removal. The following statement was provided by the
applicants:
“We are respectfully requesting the removal of the restrictive covenant specific to 8950 Lake Jane Trail
North, Lake Elmo, MN 55042. The current covenant requires us to operate outside of every other homeowner
residing on Lake Jane. There is nothing inherently unique about our parcel which would justify special
covenants specific to this property. We should therefore be allowed to maintain, improve, and beautify our lot
restricted only by those rules applicable to all other lake residences. Moreover, there is an urgency in having
these covenants removed as we have received documented threats from community members that are aware of
said covenants. We understand there are ordinances which apply to all homeowners on Lake Jane and we
will continue to abide by these guidelines. We thank you in advance for your time and attention to this
matter.”
Although the applicants’ request states they would like the covenant restrictions removed, after talking with
the applicants, City staff believes aspects of the 2002 resolution of approval of the variance would also need to
be amended to meet their request because the resolution contains conditions of approval pertaining to the
recording of a restrictive covenant against the property and if the restrictive covenant is going to be released,
the conditions of the variance need to be changed. The following outlines City staff’s analysis of what will
need to be changed or removed from the original 2002 resolution granting the variances and the restrictive
covenant document(s).
2002 Variance Conditions to be Amended as Follows:
1. Compliance with the tree preservation proposal of the applicant, staff dated September 19, 2002.
2. A covenant shall be recorded on the deed of the site prior to the issuance of the building permit
that insures maintenance of the tree preservation plan. The covenant shall be prepared by the
applicants’ attorney and approved/recorded by the City Attorney.
3. The covenant shall also specify that the existing parcel shall not be reduced in size or subdivided in
the future.
4. The preserved area of the site shall remain undisturbed from its natural state, including ground
vegetation and tree cover.
5. All lake frontage except the fifty foot wide beach shall remain undisturbed in its natural state.
6. Minimized disturbance of any vegetation within the fifty foot wide corridor, including at the
shoreline
7. All trees of twelve-inch diameter and greater at breast height within the fifty foot corridor to the
lake shall be retained.
8. No grading or filling shall be permitted below the Ordinary High Water level.
9. The covenant must be recorded before issuance of any building or development permit, or sale of
the property by Bob Mogren.
Restrictive Covenant
The applicants are requesting that the restrictive covenant that was recorded against their property as a
condition of the 2002 variance be removed in its entirety. The restrictive covenant has the following
restrictions (which would all no longer apply if it is removed):
1. No trees or ground vegetation may be out outside of the Construction Area [as defined in the
restrictive covenant], except for a 50 foot wide corridor, the centerline of which begins at a point
on the north line of the Construction Area, 100 feet East of the Northwest corner of thereof; thence
extending northerly at a 90 degree angle from said north line to the intersection with the natural
high water mark of Lake Jane and there terminating. Inside the 50 foot corridor all trees over 12
inches in diameter at breast height must not be cut.
2. Trees and vegetation may be cut as needed to install and maintain a septic system.
3. No trees may be cut in the road right of way except for a 65 foot driveway opening.
4. The preserved area of the site shall remain undisturbed from the natural state, including ground
vegetation and tree cover.
5. No grading or filling shall be permitted North of the ordinary high water level.
6. The existing parcel shall not be reduced in size or subdivided at any time.
FINDINGS AND DISCUSSION
FINDINGS:
1. With respect to the amendment of the conditions of approval set forth in Resolution No. 2002-106, the
City Council finds that in 2002, that the conditions were arbitrarily applied to the Property and not to
other similarly situated properties in the City that received variances around that time. This finding
is supported by the fact that the City’s records show that properties that were reviewed under similar
circumstances around that time period did not have the same or similar conditions required with
respect to their variance approvals.
2. Article 8, Environmental Section of the City Zoning Code considers some of the trees on the Property
as being nuisance trees (cottonwood and buckthorn) that should be removed. Under the current
conditions of the variance, the Applicants are prohibited from the removal of these trees on the
Property. This is degrading the overall condition of the Property. The Applicants have expressed
interest in removing the nuisance trees and expending funds to establish new landscaping on the
Property. By removing this condition of the variance, the Applicants will be able to remove these
nuisance trees and improve the overall condition of the Property.
3. The restrictions that are imposed by the conditions of the variance and the restrictive covenant deny
the Applicants reasonable use of the Property that others with similar types of property in the City
enjoy.
4. When the variance was approved in 2002, the City Council may have imposed the conditions on the
variance in order to preserve the aesthetic value of the Property and protect the lake and other natural
resources. However, the existing City Code provides a level of protection to the lake and natural
resources that may not have been present in 2002. With the existing City Code establishing standards
of vegetative clearing and the amount of fill that can be used on lakeshore lots, the City Council
believes the conditions in the variance and the prohibitions in the restrictive covenant have become
redundant and burdensome.
5. The variance amendment request was submitted to the Minnesota Department of Natural Resources and
the Valley Branch Watershed District who have jurisdiction over the Property because it is within the
Shoreland District. Neither provided any comment or objection to the requested variance amendment.
CONDITIONS OF APPROVAL:
1. Resolution 2002-106 is hereby amended so that conditions 2 through 7 and condition 9 are removed
and no longer apply to the Property.
2. Because the variance as amended no longer requires a restrictive covenant, the Restrictive Covenant
may be released from the Property. The City Council authorizes the Mayor and City Clerk to sign
the release of the Restrictive Covenant that is attached to this Resolution as Exhibit A.
3. The beach area on the Property is substantially larger than what is allowed by current City Code
standards. The Applicants must reduce the size of the beach to a width of 50 feet and all vegetation
that has been removed must be replanted. The City Code does not define the size that a beach can
be, but it does limit the amount of grading and fill that can be brought into the impact zone (50 ft.
from the OHWL), which is 10 cubic yards. A grading permit will be required (see Section 154.800
C. 7. e. of the City Code).
4. The recently installed landscaping along the road right-of-way (ROW) is not identified as an issue
at this time but will over time become an issue as the trees and vegetation grow. With the plantings
being located within the ROW, the Applicants are hereby put on notice that the City reserves the
right to remove any of the vegetation that is within the ROW at any time as it is determined by the
City to be a public safety hazard, which is determined at the sole discretion of the City.
5. The Applicants must remove the temporary driveway on the Property and remediate with vegetation
or lawn grass.
6. The City will not release the property of the restrictive covenant(s) until the above mentioned
conditions have been addressed and completed to the satisfaction of the City.
FISCAL IMPACT:
None
MOTIONS:
Prior to approval City Staff recommends that the Council review the conditions of approval.
“Move to adopt Resolution No. 2020-082 approving the variance amendment request and release the
restrictive covenants from the property located at 8950 Lake Jane Trail.”
ATTACHMENTS:
- Resolution 2020-082
- Resolution 2002-106
- Restrictive Covenant
CITY OF LAKE ELMO
WASHINGTON COUNTY
STATE OF MINNESOTA
RESOLUTION NO 2020 - 082
A RESOLUTION APPROVING THE VARIANCE AMENDMENT REQUEST FOR THE PROPERTY
LOCATED AT 8950 LAKE JANE TRAIL AND AUTHORIZING THE RELEASE OF THE RESTRICTIVE
COVENANT THAT IS RECORDED AGAINST THE PROPERTY
WHEREAS, Steve and Haley Meisterling (the “Applicants”) are the owners of the property
located at: 8950 Lake Jane Trail North, Lake Elmo MN 55042 (the “Property”); and
WHEREAS, on October 1, 2002, the previous owner of the Property received City approval of
variances that would allow it to construct a home on the Property, said variances are set forth in City
Council Resolution 2002-106 (“Resolution 2002-106”); and
WHEREAS, said Resolution 2002-106 granted the former owner of the Property a setback
variance from the ordinary high-water mark of Lake Jane and from the street right-of-way and contained
the following conditions:
1. Compliance with the tree preservation proposal of the applicant, staff dated September 19, 2002.
2. A covenant shall be recorded on the deed of the site prior to the issuance of the building permit that
insures maintenance of the tree preservation plan. The covenant shall be prepared by the applicants’
attorney and approved/recorded by the City Attorney.
3. The covenant shall also specify that the existing parcel shall not be reduced in size or subdivided in
the future.
4. The preserved area of the site shall remain undisturbed from its natural state, including ground
vegetation and tree cover.
5. All lake frontage except the fifty foot wide beach shall remain undisturbed in its natural state.
6. Minimized disturbance of any vegetation within the fifty foot wide corridor, including at the shoreline
7. All trees of twelve-inch diameter and greater at breast height within the fifty foot corridor to the lake
shall be retained.
8. No grading or filling shall be permitted below the Ordinary High Water level.
9. The covenant must be recorded before issuance of any building or development permit, or sale of the
property by Bob Mogren;
WHEREAS, in satisfaction of the conditions of the variance granted in Resolution 2002-106, a restrictive
covenant was recorded against the Property; and
WHEREAS, said restrictive covenant is entitled “Declaration of Covenants,” is dated February 19, 2002,
and was recorded with the Washington County Registrar of Titles on March 3, 2003 as Document No. T-016034
(the “Restrictive Covenant”); and
WHEREAS, the Applicants have submitted a request to the City to amend conditions of the
variance that are set forth in Resolution 2002-106 by removing conditions numbers 2-7 and 9; and
WHEREAS, the Applicants have requested that in conjunction with their request to amend the variance
that the City release the restrictive covenant from the Property as it will no longer be a condition of the variance
once the variance is amended; and
WHEREAS, notice of the amendment to the variance has been published , mailed, and posted
pursuant to the Lake Elmo Zoning Code, Section 154.109; and
WHEREAS, the Planning Commission held a public hearing on the amendment to the variance
on August 24th, 2020; and
WHEREAS, the Planning Commission submitted its report and recommendation of approval of the
amendment to the variance to the City Council as part of the City Staff Memorandum dated September 15th,
2020; and
WHEREAS, the City Council considered the report and City staff’s recommendations at its September
15, 2020 meeting and directed City staff to prepare a resolution approving the request; and
NOW, THEREFORE, based on the testimony elicited and information received, the City
Council makes the following findings with respect to its approval of the request:
FINDINGS
1. With respect to the amendment of the conditions of approval set forth in Resolution No. 2002-106,
the City Council finds that in 2002, that the conditions were arbitrarily applied to the Property and
not to other similarly situated properties in the City that received variances around that time. This
finding is supported by the fact that the City’s records show that properties that were reviewed
under similar circumstances around that time period did not have the same or similar conditions
required with respect to their variance approvals.
2. Article 8, Environmental Section of the City Zoning Code considers some of the trees on the
Property as being nuisance trees (cottonwood and buckthorn) that should be removed. Under the
current conditions of the variance, the Applicants are prohibited from the removal of these trees on
the Property. This is degrading the overall condition of the Property. The Applicants have
expressed interest in removing the nuisance trees and expending funds to establish new landscaping
on the Property. By removing this condition of the variance, the Applicants will be able to remove
these nuisance trees and improve the overall condition of the Property.
3. The restrictions that are imposed by the conditions of the variance and the restrictive covenant deny
the Applicants reasonable use of the Property that others with similar types of property in the City
enjoy.
4. When the variance was approved in 2002, the City Council may have imposed the conditions on the
variance in order to preserve the aesthetic value of the Property and protect the lake and other
natural resources. However, the existing City Code provides a level of protection to the lake and
natural resources that may not have been present in 2002. With the existing City Code establishing
standards of vegetative clearing and the amount of fill that can be used on lakeshore lots, the City
Council believes the conditions in the variance and the prohibitions in the restrictive covenant have
become redundant and burdensome.
5. The variance amendment request was submitted to the Minnesota Department of Natural Resources
and the Valley Branch Watershed District who have jurisdiction over the Property because it is
within the Shoreland District. Neither provided any comment or objection to the requested variance
amendment.
CONCLUSIONS AND DECISION
NOW, THEREFORE, BE IT FURTHER RESOLVED that based on the above findings, the City Council
hereby approves the variance amendment request for the property located at 8950 Lake Jane Trail North.
This approval is hereby based on the following conditions of approval outlined below:
1. Resolution 2002-106 is hereby amended so that conditions 2 through 7 and condition 9 are
removed and no longer apply to the Property.
2. Because the variance as amended no longer requires a restrictive covenant, the Restrictive
Covenant may be released from the Property. The City Council authorizes the Mayor and City
Clerk to sign the release of the Restrictive Covenant that is attached to this Resolution as Exhibit
A.
3. The beach area on the Property is substantially larger than what is allowed by current City Code
standards. The Applicants must reduce the size of the beach to a width of 50 feet and all
vegetation that has been removed must be replanted. The City Code does not define the size that
a beach can be, but it does limit the amount of grading and fill that can be brought into the impact
zone (50 ft. from the OHWL), which is 10 cubic yards. A grading permit will be required (see
Section 154.800 C. 7. e. of the City Code).
4. The recently installed landscaping along the road right-of-way (ROW) is not identified as an issue
at this time but will over time become an issue as the trees and vegetation grow. With the
plantings being located within the ROW, the Applicants are hereby put on notice that the City
reserves the right to remove any of the vegetation that is within the ROW at any time as it is
determined by the City to be a public safety hazard, which is determined at the sole discretion of
the City.
5. The Applicants must remove the temporary driveway on the Property and remediate with
vegetation or lawn grass.
6. The City will not release the property of the restrictive covenant(s) until the above mentioned
conditions have been addressed and completed to the satisfaction of the City.
Passed and duly adopted this 6th day of October, 2020 by the City Council of the City of Lake Elmo,
Minnesota.
__________________________________
Mayor Mike Pearson
ATTEST:
__________________________________
Julie Johnson, City Clerk
EXHIBIT A
Release of Restrictive Covenant
[to be attached]
408385v1 SJS BR270-207
RELEASE OF
DECLARATION OF COVENANTS
IN CONSIDERATION OF THE DECLARATION OF COVENANTS AND OTHER
VALUABLE CONSIDERATION, the City of Lake Elmo, a Minnesota municipal corporation,
hereby states that the property has satisfied the conditions cited in resolution 2020-082 and releases,
discharges, and terminates the Declaration of Covenants, made by Landmark, Inc., a Minnesota
corporation, dated February 19, 2003, recorded with the Office of the Registrar of Titles as
Document No. 3316460 on March 10, 2003, Washington County, Minnesota.
This instrument has been executed this ___ day of _______________, 2020.
By: _____________________________________
Mike Pearson
Its: Mayor
By: _____________________________________
Julie Johnson
Its: City Clerk
408385v1 SJS BR270-207
STATE OF MINNESOTA )
) SS
COUNTY OF WASHINGTON )
The foregoing instrument was acknowledged before me this ____ day of ____________,
2020, by Mike Pearson and Julie Johnson, the Mayor and City Clerk, respectively, of the City of
Lake Elmo, a Minnesota municipal corporation on behalf of the City.
___________________________
Notary Public
This document drafted by:
Kennedy & Graven, Chartered (SJS)
150 South 5th Street, Suite 700
Minneapolis, MN 55402
(612) 337-9300