HomeMy WebLinkAbout09-12-16 Planning Commission Packet
3800 Laverne Avenue North
Lake Elmo, MN 55042
(651) 747-3900
www.lakeelmo.org
NOTICE OF MEETING
The City of Lake Elmo
Planning Commission will conduct a meeting on
Monday September 12, 2016 at 7:00 p.m.
AGENDA
1. Pledge of Allegiance
2. Approve Agenda
3. Approve Minutes
a. August 22, 2016
4. Public Hearings
a. VARIANCE: a request by Suzanne Horning for a variance from the 12-month
time limit for the commencement of work associated with a lot size variance.
PID# 09.029.21.11.0015 (Lot 9, Krause’s Addition located at the intersection of
Jamaca Avenue North and Jane Road North).
b. ZONING TEXT AMENDMENT: an amendment to Chapter 154.205, Fencing
Regulations of Title XV: Land Usage, of the City of Lake Elmo’s Code of
Ordinances, amending the City’s regulations on solid wall fences on properties
less than half an acre in size.
5. Business Items
a. CONDITIONAL USE PERMIT: A request by Scott Wyckoff of Wasatch Storage
Partners for a conditional use permit for a self-service storage facility and exterior
storage for the property located at 9200 Hudson Boulevard N in the Commercial
Zoning District, PID No. 34.029.21.33.0005.
6. Updates
a. City Council Updates – September 6, 2016 Meeting
i. Royal Golf Course at Lake Elmo Concept PUD Plan
ii. OP Ordinance
iii. Boulder Ponds LLC Zoning Map Amendment/PUD Amendment –
Ordinance 08-149
b. Staff Updates
i. Upcoming Meetings:
September 26, 2016
October 10, 2016
c. Commission Concerns
7. Adjourn
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***Note: The Public is advised that there may be a quorum of City Council Members in
attendance as observers. No official action can or will be taken by the City Council at this
meeting.
***Note: Every effort will be made to accommodate person or persons that need special
considerations to attend this meeting due to a health condition or disability. Please contact the
Lake Elmo City Clerk if you are in need of special accommodations.
Lake Elmo Planning Commission Minutes; 8-22-16
City of Lake Elmo
Planning Commission Meeting
Minutes of August 22, 2016
Chairman Kreimer called to order the meeting of the Lake Elmo Planning Commission at
7:00 p.m.
COMMISSIONERS PRESENT: Fields, Dodson, Williams, Larson, Griffin, Kreimer, and
Lundquist
COMMISSIONERS ABSENT: Haggard & Dunn
STAFF PRESENT: Planning Director Wensman & Administrator Handt
Approve Agenda:
Agenda accepted as presented.
Approve Minutes: August 8, 2016
M/S/P: Dodson/Fields, move to approve the August 8, 2016 minutes as amended, Vote:
7-0, motion carried Unanimously.
Public Hearing – Concept PUD Plans
Wensman started his presentation for the Concept PUD Plan from HC Golf Course
Develepment LLC for the Tartan park site which is nearly 500 acres. The residential
development would surround the golf course. This would be roughly 300 residential
housing units. The biggest question is should the comprehensive plan be updated in
response to the unforeseen event of the sale of Tartan Park. Tartan Park was a fixture in
Lake Elmo for over 50 years and was thought to remain so. It was not on the City radar
as far as the Comprehensive Plan. This is not just a blanket yes or no, and it is not
approving anything at this time. It is just providing feedback for the applicant.
This site is currently guided as public facility and is 8 parcels that make up 477 gros s
acres. A PUD is required because much of the site is in the Shoreland area and is
environmentally sensitive. There are a number of considerations for reguiding this
property 1) environmental considerations 2) the land is between 2 sewered districts 3)
variable densities surrounding the site 4) OP & LDR are not realistic options 5) extension
of sewer to properties along Lake Elmo will likely happen over time.
A decision that needs to be made is should the site be reguided and rezoned. If
reguided and rezoned, there are three options to do that. 1) new land use designation
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and new zoning district 2) guide for urban low density 3) guide for village urban low
density.
Wensman stated that the density for Urban low density is 1.5-2.5 and LDR is 2.5-4.0
units per acre. Dodson asked if the golf course area would be split out as separate from
the residential. Wensman stated that it is not, but is being considered through the PUD
process. Dodson asked why OP was not an option if the golf course fails, it could be
used for open space. Wensman stated that this development would not be profitable as
an OP and to convert a golf course would be very expensive. Staff feels that the Village
low density is the best option for the Tartan Park site. For a PUD , one or more of the 10
potential objectives needs to be met. Staff feels that there is justification related to 5
objectives. 1) protecting the environmental features 2) the preservation and
enhancement of the golf course 3) Utilization of open space in golf course for storm
water management, cluster of homes to limit site disturbance and extending sewer to
preserve and enhance environmental features 4) facilitate the redevelopment of the
golf course 5) four sided architecture. Wensman went through the PUD standards that
were met by this proposal. They meet the required minimum area, the open space
requirements, street layout can be met with some changes, density depends on future
comp plan designation, lot design and structures. Connectivity is impor tant and there
are some options to provide connections.
In regards to the development moratorium, Royal Golf is outside the limits of the
moratorium. Over 200 acres of the site is within the shoreland district. Shoreland
regulations require developments to be connected to municipal sewer & water. There
is an unnamed wetland on the site that is included in the cities shoreland ordinance,
that is not recognized by the DNR. It should be removed from the ordinance. This
development appears to comply with shoreland ordinance tiering, but the development
is subject to DNR approval. At this point, not enough information has been submitted to
determine if the plans conform to the Shoreland PUD rules. There are no buffer
requirements for PUD’s. There are buffers in the comprehensive plan for sewered
areas, but this was never planned as a sewered area.
Fields asked if we had the authority to require buffers. Wensman stated that since it is a
PUD, that could be negotiated.
Wensman stated that of the 205 acres for residential, roughly 33% is open space with
wetlands, bluffs, open water and private open space. The concept plans have not
addressed screening, entrance monuments, boulevard plantings or private open space
plantings. The preliminary PUD plans will need to comply with the City’s landscaping
standards.
Wensman talked about parkland dedication and trails. This will need to be looked at
closely to see what is feasible. Interconnectivity of streets needs to be addressed.
There are issues regarding access management and proposed private streets that need
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to be worked out along with a few other things. The concept plan does not address the
water supply. Tartan Park is exluded from the 2030 Comp water supply plan, although
water is nearby. A water service capacity and hydraulic study is needed to evaluat the
ability to service Royal Golf. This new service could move up the timeframe to construct
a new water tower. All improvements are at the developers expense.
The sanitary system is not addressed in the concept PUD plans. They do intend to
connect the golf course and development to sanitary sewer. This development area is
outside of the MUSA area and a comprehensive plan amendment would be needed.
There are some issues with lift stations and concerns of the City Engineer that will need
to be addressed.
Stormwater and grading are all subject to state, VBWD and City regulations. Some of
the plans do not meet those regulations. Wensman went through some of those items.
Wensman went through the developments phasing plan. It is anticipated to be a 3 -5
year phasing or 60 units per year. The phasing plan will need to be addressed ahead of
time at the time of the preconstruction meeting.
The developer is working on an EAW that will be submitted to City and adjacent
jurisdictional review prior to City Council approval of the preliminary plat.
The site contains 15.99 acres of wetland and 9.74 acres of wetland buffer. These need
to located outside of lot areas. The VBWD is responsible for administering the wetland
concervation act requirement and a VBWD permit is required.
The golf course is required to have 2 entrances for emergency access, but only has 1
now. They will also need to comply with off-street parking requirements. There are a
number of amenities being proposed for the golf course area which include a pool,
fitness center, trails and a childrens golf course.
Other considerations for this PUD application are that sign age plans should be
submitted with preliminary plat, fire hydrant and streetlight locations will be required
on the plans, erosion control and floodplain issues will need to be addressed.
Dodson asked if the golf course should be zoned commercial. Wensman stated that is is
a private golf course open to the public. He said that the public facility zoning is
appropriate. Dodson asked if this could be construed as spot zoning. Wensman stated
that according to the City attorney, it is not spot zoning as it is a large enough area with
lots of lots, etc.
Kreimer asked about the stormwater ponds being dedicated to the City. He said the
developer indicated that they wanted to use the ponds for irrigation and such. How
would that affect the dedication. Wensman stated that Inwood is doing the same thing
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and there would be a whole host of approvals that would need to happen for it to move
forward.
Clark Schroeder, works for Hollis Cavner, and gave a history of what got them to this
place. When 3M wanted to sell, options were looked at to see if there were options to
keep it a park. That did not transpire, so 3M actively marketed the property. Since
purchasing the property, they have started grading to restore the golf course. They
want to create a sustainable development that will help keep the golf course open.
Rick Packer, HC Golf, went through the Concept PUD Plans for the development. They
are dedicated to creating a high quality and high amenity neighborhood with
recreational facilities, forming a strong sense of identity. Packer stated that they have
changed all of the private roads to public streets. For density, they are not including the
golf course, but only the residential component. They are working on a transportation
study along with the EAW. The EAW is expected to be completed Mid-August.
Build out is expected to occur within 5 years based on market demand. The golf course
is expected to open in 2017. They are working on a proposed connection to 10 th street
with Mr. Emerson. There are no buffers required, however, they plan to be good
neighbors and work with the residents. There are also mature trees that provide a
screened buffer. Packer talked about city fees and trails throughout the development.
Hollis Cavner, owner, his intent was to sell off the residential portion of land to a
developer. After talking to developers, he decided to do it himself, because he wants
this to be a spectacular place. He is not going to give this to a national builder because
he wants to have control over the finished product.
Williams asked about their response to the need for 2 entrances to the golf course.
Schroeder stated that they met with the Fire Chief and Building Official and they have a
couple of plans that would work. They will be working out the details for preliminary
plat.
Lundquist asked if they have any intentions of improving 20th street. Schroeder stated
that they have been studying that.
Larson was wondering if there were opportunites for other non-golf related activities.
Schroeder stated that they would like to put in a pocket park or community park for the
HOA. Packer stated that they are looking at the ballfield as a possible location.
Public Hearing opened at 8:45 pm
Ann Bucheck, 2301 Legion Ave, she is happy that they are going to keep the homes and
thinks that they should be able to build homes, however, they need to follow the
comprehensive plan and meet the future land use plan. She says that the
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comprehensive plan states that the City is committed to preserving rural character and
that areas north of 10th street and outside the village area would be in the form of Open
Space Development Cluster neighborhoods. Ms. Bucheck touched on other aspects of
the Comprehensive Plan that she feels this development does not meet. She urges the
Planning commission to require the development to choose density that is consistent
with the surrounding properties.
Dan Rice, 11364 14th Street, President of the Homestead Development HOA. This
development went in with 18 homes and was developed in 1997 as an open space
development. He feels this development represents a substantial and dramatic
departure from the current Comprehensive Plan. Businesses and Homeowners rely on
the comp plan and zoning when purchasing their property. They are prepared to
support residential development as long as it is designed in a way this is not detrimental
to their neighborhood.
Jim Voeller, 11314 12th Street, he is very disappointed in the progress of this
development. He feels there has been very little consideration for the existing
neighborhoods that have been there for years. The design that was shown back in
march showed a significant buffer of 125 foot buffer and a lot less houses.
Louis Speltz, 11326 14th Street, he shares the concerns raised by the previous speakers.
He feels if an exception is made to the Comprehensive Plan, there never was a plan to
begin with. The developer purchased the property knowing full well that all of th e land
was targeted for recreation, not residential property. Is rural character something we
just give lip service to with no buffers to existing neighbors.
Ellen Johnson, 11050 14th Street, concerned that the they do not have the EAW and
traffic study that should have been done for today. She wants this to move slow enough
that they are very careful with this sensitive site.
Tim Mandel, 2479 Lisbon, this area was never mandated for high density development
and sewer was never intended for this area. This development looks like solid
impervious. He would like to see this developed as RE or R1. He is concerned that if
sewer is brought to this property, it won’t stop there.
Michael Zueffel, 2055 Manning Trail, would like to reinforce that Comprehen sive Plan
designates this area as rural. There are 21 residents that live off of Manning Trail and
there is no buffering. There is no obligation to approve this.
Michael Biebl, 12020 18th Street, agrees with prior statements. He is concerned about
the buffers and statements are misleading. The access points on Manning Trail are on
West Lakeland township and he doesn’t believe they have been contacted yet. It will
probably come out in the traffic study, but Washington County is concerned about the
traffic impact with this development. He is concerned with the density. He is concerned
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with how close the homes are being built. He is also concerned with how the water will
flow. He is also concerned with the intersections on 20th Street. He doesn’t feel that
the West Lakeland residents have been kept informed regarding this project.
Shelli Wilk, 11253 14th Street, ould like to echo the concerns regarding density, rural
character and zoning.
Jeffrey Kluge, 11234 14th Street, concerned with the added traffic along Lake Elmo Ave.
Bob Schwartz, 12040 18th Street, West Lakeland resident, he is wondering why would
would they do this when it goes against zoning and comprehensive plan. This density is
so out of whack with surrounding properties and the Comprehensive plan.
Tom & Pam Barnes, 1734 Manning Trail, concerned because a number of years after
purchasing their home, they discovered that the property line was not where they
thought it was. They came up with an easement agreement with 3M. The new plan
looks like there is very little buffer other than the narrow easement that they
negotiated. Their garage and home is only about 10 feet from the new homes. They
want to have a decent buffer in there. They would also like to see some open space left
for the wildlife on the property.
Audrey Kopp, 2040 Manning Trail N, she is concerned with the intersection. She feels it
is not a safe intersection now, and with more traffic, will be much more dangerous. She
is also concerned about the wildlife in the area.
There were some written statements that were submitted as well and were in the
packet.
There were also additional that were submitted after the packet went out. Kreimer
summarized those statements Bonnie & Glen Welch, Karen Cook, Mike Tate & Jim
Burns would like to see a trail on south side of 20th street for safety. Vicky Johnston
would like to see public walking paths. Judy Toft is concerned about 1 entrance and
small lot sizes.
Public hearing closed at 9:41 pm.
Williams stated that the number one question to answer is if this number of houses that
will require public sewer and water is an appropriate change. He feels that it is not
appropriate. There is nothing distinguishing this property form others in the area. He
does not feel that they should expand the sewer area north of 10 th street. He supports
redevelopment and housing on this property, but not at this density.
Dodson wants to understand why Williams feels that way and how would it be different.
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Lundquist is thinking if developed as an open space it would be developed at about 230-
240 homes. Wensman stated that this was the case. Fields has concerns about the lack
of interconnectivity and access points, regardless of concerns with density. He feels
that when there is no obligation to rezone the property at all, the developer should have
come to the city with something in between park land and Open Space to be respectful
of existing neighbors and the Comprehensive Plan.
Lundquist is concerned that on every boundry of this proposal there are significant
concerns with buffers and streets not being adequate. Williams stated that if you drove
into Tartan Meadows and Homestead and looked at the layout and the lots and then
drove to Savona, you would see a significant difference. This proposal is similar to
Savona in density and he does not feel that it is appropriate for this area. The City does
not have a need to add any additional sewered development. He feels that 10 th street is
somewhat of the sacred border, with the exception of the Village area, for sewered
development. Williams does not buy the argument that an OP development is not
economically viable. Wensman stated that the DNR requires sewer in the shoreland
area. There are roughly 200 acres are within the Shoreland district in this development.
Larson is wondering what it would take to increase the buffers. Some of the issues
seem to relate to privacy and space. He feels there are a lot of creative tools that could
be used to help with buffers.
Hollis Cavner stated that there is a huge misconcept ion about the buffers around the
surrounding property. They are transplanting trees to create a buffer and they are not
taking out any trees. They are willing to build berms for the Homestead and put trees
in. Unfortunately, with the shoreland buffer setbacks, they are forced to go to the
perimiters of the land. The infrastructure alone on this project will be upwards of 32
million dollars and unfortunately, that does dictate how much density they need to
make this work.
Larson hopes that some middle ground can be found. This development has good
things and is trying to keep some of the history there. He hopes with some creativity,
some middle ground can be found.
Kreimer thinks it is appropriate that this area be sewered because of the shoreland and
the area that needs to be protected. He does not feel that the buffering is acceptable.
He would like to see at least 100 feet of buffering. The plans do not show distances. He
feels in order to preserve this golf course, sewer is necessary. Fields stated that on
Olson Lake Trail, there are properties slated to be sewered. Those properties are all
approximately 150 feet wide and are of a value that can afford a higher assessment. He
feels that with this property there can be lower density with sewer, with homes that
could afford the higher assessment.
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Dodson would like to see a study of what the lowest density is that can have sewer. He
is also concerned about the buffers. He doesn’t like the design in the Homestead area.
He is concerned about that density of homes in this area. He also doesn’t like the buffer
area against West Lakeland.
Griffin agrees that sewer is something that is necessary because of the lakes on this
property. She is also concerned about the traffic. She would like to see the density
lowered and the buffers expanded. She wants to make sure that the City is doing the
right thing. She does not believe that individual septic will perk on the soils that are on
this property. She wants us to work with West Lakeland on what buts up against that
property.
Williams wants to give some findings. He feels the staff report is biased. It assumes that
the desired outcome is sewering this area and he feels that is false. He does not feel
that there is adequate findings in the staff report.
M/S/: Williams/Dodson, move to propose the following findings of fact:
1) The housing density proposed, approximately 2.2 units per acre, would require
service by a municipal sewer and water.
2) Any form of residential development will require a comprehensive plan
amendment.
3) The property could be developed under the citys OP or RE development
standards.
4) The City has no need to guide for more sewered residential development based
on the Comprehensive Plan and the Metropolitan Councils population forecast
for 2040
M/S/P: Williams/Lundquist, move to amend the findings to include a 5th finding of fact
to include that there are unresolved issues of buffer, access points, cul-de-sac lengths
and connectivity, Vote: 7-0, motion carried unanimously.
/P: Orginal motion with 5 findings of fact, Vote: 7-0, motion carried unanimously.
Larson asked why the golf course and housing development were not treated a s
separate entities.
M/S/P: Fields/Lundquist, propose a finding that changing the zoning from a park to
housing consistent with this proposal will increase the citys tax base and lessen the tax
burden on the rest of Lake Elmo. Vote: 6-1, motion carried.
Dodson does not think this is a finding as it isn’t the current situation. Williams also
doesn’t agree with the finding because they don’t have knowledge of where that break
point is for net gain. The information he has seen is that residential does not pay for
itself.
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M/S/P: Williams/Dodson, proposed an additional finding that any area between 10th
Street and 30th Street, East of Lake elmo Ave, with existing residences is not expected to
require sewer before 2040, Vote: 7-0, motion carried unanimously.
M/S/P: Lundquist/Williams, proposed an additional finding that the total number of
houses proposed for the residential portion, exceeds by 30% the total number of houses
that would be allowed if the entire property, including the golf course, was developed
in OP, Vote: 7-0, motion carried unanimously.
M/S/P: Kreimer/Williams, proposed an additional finding that the golf course is an
amenity to the City of Lake Elmo, Vote: 7-0, motion carried unanimously.
The Commission decided that the first question that they needed to answer is if taking
action on a comprehensive plan amendment and rezoning is warranted at this time
given changes that have occurred since the current plan and zoning map were last
adopted.
Dodson believes that it is warranted because he feels that wh en the Comprehensive
Plan is reviewed, this area will need to be dealt with anyway. Fields does not agree. He
feels they do not need to do that at this time based on the findings and this proposal. If
the proposal changes, or the findings are no longer relevant, they can do so at a later
date.
Larson thinks that the golf course and residential should be separated and dealt with as
separate entities. Fields does not understand why a comp plan amendment is necessary
when it was privately owned before and is privately owned now. Wensman stated that
it could remain as parkland. He stated that the residential and golf course are together
because the 2 are inter-related as trails and some amenities for housing development
are on the golf course property. They also share some shoreland and ponding and it
gets really hard to separate them. Usually when there are different uses on a property
owned by the same entity, a PUD is the way to address it such as Inwood with
residential and Commercial.
Fields stated that he feels the key elements of this question is “at this time” and
“changes that have occurred”, meaning the sale of the property and also the proposal
that is before them. He would prefer to wait to recommend a comp plan amendment
until there is a proposal that serves a broad public purpose. He does not feel that this
proposal does that. Dodson agrees that at this time the comp plan amendment is
premature until it goes to preliminary plat.
M/S/P: Williams/Lundquist, motion to not recommend approval for a comprehensive
plan amendment to accommodate the current development proposal at this time, Vote:
7-0, motion carried unanimously.
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M/S/P: Fields/Kriemer, the applicant has demonstated that the application meets at
least one of the objectives to be considered for a PUD, Vote: 7-0, motion carried
unanimously.
The Planning Commission gave these issues as areas of concern: The buffer areas, lower
density, cul-de-sac lengths, trails, especially on 20th Street, significant improvements on
20th street, improvements at the intersections of both Manning Trail and 20 th Street and
Lake Elmo Ave and 20th Street , access areas (discussion with West Lakeland),
demonstration from a regulatory vs. economic standpoint that non-sewered
development is not viable, alignment of intersections especially on 20 th street,
engineering report to be followed, minimum of 100 or 150 foot buffer from property
line to property line, and 2 access points for the golf course.
Public Hearing – Easement Vacation – GWSA Land Development
Wensman stated that there was a drainage and utility easement on outlots. Now those
outlots are being developed into residential lots, and the easements need to be vacated
in order to record the plats. New easements will go into place where appropriate on the
new plat. This is really just a housekeeping matter.
Public Hearing opened at 11:22 pm
There were no written or electronic comments received
Public Hearing closed at 11:23 pm
M/S/P: Dodson/Griffin, move to recommend approval of a request to vacate drainage
and utility easements of Outlots C, G, & H as recorded on the Final Plat of Village
Preserve, Vote: 7-0, motion carried unanimously.
Business Item – Zoning Text Amendment Open Space Development
Wensman stated that this is the same information that was presented at the last
meeting. He would like to point out something that he did not highlight at the last
meeting. On page 8 of 27 in the green notes it was speaking in favor of more vague
language and the reason it was changed. That was because being a PUD, everyone will
probably ask for changes.
Williams likes the more specific language because these are all areas we want to
monitor very carefully and calling them out specifically developers know they have to
pay attention. If they ask for modifications, at least they are highlighted.
Lundquist asked if the intent of going through this code was just to clean it up.
Wensman stated that the Council asked the Commission to address some issues in the
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ordinance. The Commission responded and the Council wasn’t quite satisfied and the
whole structure was questioned. It was thought that a PUD was more appropriate tool
than a CUP for this ordinance.
M/S/P: Fields/Dodson, move to recommend approval of ordinance 08 -__, repealing the
existing open space development regulations within chapter 150, adopting new open
space planned unit development regulations in chapter 154, and reorganizing and
renumbering Chapter 154 to fit the new open space regulations, Vote: 7-0, motion
carried unanimously.
Business Item – Fence Ordinance Discussion
Wensman stated that the City Council would like the Commission to consider if a
portion of the fence code that is highlighted on the copy that was handed out, should be
repealed.
Dodson asked why this item came up. Wensman stated that there is an issue with a
residence where this is being questioned.
Fields said that he was at the City Council meeting, but he couldn’t figure out what it
was they were looking for. Wensman stated that there is a specific property owner that
feels that the ½ acre provision is not fair. The Council wanted the Commission to give
their feedback. Dodson stated that he feels it is appropriate for the
M/S/P: Dodson/Lundquist, move to recommend staff to draft an ordinance and conduct
a public hearing, Vote: 7-0, motion carried unanimously.
Ann Buchek, 2301 Legion Ave, spoke regarding the 1% rule. She wanted to point out
that the state guidelines are adequate for average situations across the state, however,
Lake elmo has many un-outleted low areas and ponds which are not average. She
would like the City Council to reinstate the more stringent stormwater rules that were
rescinded on October 13, 2013 and calling for NO increase in runoff compared to pre -
construction.
City Council Updates – August 16, 2016 Meeting
i) Boulder Ponds rezoning – Tabled
ii) Temporary Health Care Facilities – Passed
iii) Pigeon Ordinance – Denied
iv) Developer Agreements for Village Preserve 2nd and Hammes Estates – Passed
with changes
Staff Updates
1. Upcoming Meetings
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a. September 12, 2016
b. September 26, 2016
Commission Concerns
Meeting adjourned at 11:40 pm
Respectfully submitted,
Joan Ziertman
Planning Program Assistant
PUBLIC HEARING ITEM 4A – PUBLIC HEARING
PLANNING COMMISSION
DATE: 9/12/16
AGENDA ITEM: 4A– PUBLIC HEARING
CASE # 2016-34
ITEM: Horning Lot Size Variance – Krause’s Addition, Lot 9
SUBMITTED BY: Emily Becker, City Planner
REVIEWED BY: Stephen Wensman, Planning Director
SUMMARY AND ACTION REQUESTED:
The Planning Commission is being asked to hold a public hearing and consider a request from
Suzanne Horning (as Trustee of the Suzanne R.W. Horning Trust) for a variance from Section
154.017 of the Zoning Ordinance, which states that any variance granted by the City “shall expire if
work does not commence within 12 months of the date of the granting of the variance.” The property
has already been granted a variance from the minimum lot size requirements for the RS – Rural
Single Family Zoning District in April of 2014 by Resolution 2014-22.
The conditions of the aforementioned granted variance detailed that the variance was valid for five
years, but may be renewed upon review and approval by the Board of Adjustment. The applicant
would like it to be valid in perpetuity, as the lot is meant to be conveyed to her children, and it is not
known when construction will commence.
Applicant: Suzanne Horning, 8991 Jane Road North
Property Owners: Suzanne and Robert Horning Trust, 8991 Jane Road North
Location: Lot 9 of Krause’s Addition to Lake Elmo. PID Number
09.029.21.11.0015
Request: Variance from Sections 154.109, 154.402 and 154.080 of the Zoning
Code
Existing Land Use: Vacant parcel, recreation use (tennis courts) accessory to 8991 Jane
Road North
Existing Zoning: RS – Rural Single Family
Surrounding Land Use: Single family residential
Surrounding Zoning: RS – Rural Single Family
Comprehensive Plan: Rural Single Family
Proposed Zoning: No Change
History: Krause’s Addition was platted in 1963. The home at 8991 Jane Road
North (across the street and also owned by the applicant) was
constructed in 1979. The City granted a lot size variance for the subject
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PUBLIC HEARING ITEM 4A– PUBLIC HEARING
property in 1985, but no home was ever built on the site. A permit to
install a tennis court on the subject property was approved later in 1985.
The City then granted another minimum lot size variance for the subject
property in 2014.
Deadline for Action: Application Complete – 8/12/2016
60 Day Deadline – 10/11/2016
Extension Letter Mailed – No
120 Day Deadline – 12/10/2016
Applicable Regulations: 154.400-408 – Rural Districts
154.109 – Variances (Administration and Enforcement)
154.800 – Shoreland Overlay District
REQUEST DETAILS
Lot 9 of Krause’s Addition to Lake Elmo was granted a variance from minimum lot size
requirements for the RS – Rural Single Family zoning district by Resolution 2014-22 in April of
2014. Because the applicant desires to convey the property to her children through her estate for
buildable-lot purposes, a variance was also requested from the standard that work must commence
within 12 months of the granting of the variance. This request was granted, but it was determined by
Resolution that the variance would be valid for a period of five years but may be renewed upon
review and approval by the Board of Adjustment. The reasoning was that five years was a
“reasonable expectation” of a time period within which construction could commence.
The applicant does not, however, wish to sell the lot or construct a home on it in the near future. It is
unknown when specifically she will convey this property to her children, and she wants to protect the
property’s value for when she leaves it to her children without having to renew the variance every
five years, nor does she want to have her children have to go through the process when they inherit it.
The applicant has stated that because the current variance is only valid for a five year period (until
April of 2019), it would be in her best interest to sell the property now so it can be built on before the
variance expires, ensuring her children will have an inheritance. She does not want to do this; she
would like to keep the lot for sentimental reasons. Thus, she is requesting now that the variance be
granted in perpetuity so she may at this time enjoy the lot as open space and then leave it to her
children as an inheritance without having to go through the variance process yet again.
From the attached Planning Commission Staff Report dated 3/24/14:
The lot under consideration is 0.785 acres (34,195 square feet) in size and the minimum lot size
within the RS – Rural Single Family Residential zoning district is 1.5 acres. As an existing lot of
record, otherwise known as a lot that was platted prior to the City’s zoning regulations becoming
effective, this property would be considered buildable if it met 60% of the district’s minimum lot
size. The applicant would therefore need at least 0.9 acres (39,204 square feet) for this lot to be
considered buildable under the current zoning regulations.
The site is currently occupied by a tennis court that was built in the mid-1980’s, and has served as an
accessory use to the home located at 8991 Jane Road North. Should the variance be approved, the
applicant intends to convey the lot to her children as a buildable lot, although she has not provided
any specific time frame for a home to be constructed. The application materials include a septic
system analysis documenting that a system compliant with Washington County septic regulations
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PUBLIC HEARING ITEM 4A– PUBLIC HEARING
may be constructed on the property. For the purposes of this report, the septic designer assumed that
a new home would be built on the same area presently occupied by the tennis court.
In addition to the above-referenced septic report, the applicant has provided a detailed project
narrative with an analysis of the required variance findings. The applicant has also provided a
detailed survey of the lot showing the existing topography, drainage patterns, tree cover, and
improvements that are currently situated on the property. There are no specific site development
plans, and any future construction on this property will need to comply with the City’s zoning and
subdivision requirements (with the exception of minimum lot size should the variance be granted).
BACKGROUND
From the attached Planning Commission Staff Report dated 3/24/14 (with updates):
The lot that is the subject of the variance request is part of Krause’s Addition to the City of Lake
Elmo, which was platted in 1963 when this area was still part of East Oakdale Township. The
attached copy of the plat shows that the lot is the same size as it was when originally subdivided. It
likely would have been considered buildable up to the incorporation of the area into the City of Lake
Elmo and the adoption of City zoning regulations in the late 1970’s. The home at 8991 Jane Road
North was constructed in 1979, and it appears that this property (Lot 7) and the subject property (Lot
9) have been under common ownership since at least this time. In June of 1985, a previous owner
applied for and was granted a variance by the City to grant Lot 9 status as a buildable lot. It appears
that this action was taken in response to the City’s adoption of the 1.5-acre minimum lot size for
single-family residential lots in this neighborhood. No home was ever constructed after the granting
of the variance, and a tennis court was installed on the property later in 1985.
As noted in the application materials, the present owner acquired the property sometime in 1985. It
appears that the property transfer occurred after the construction of the tennis court. Additionally,
the applicant has described that City assessed the subject property as a buildable lot in 1985 for a
City project. Based on this information, it does appear that the City would have considered the lot to
be a buildable lot at the time the property was purchased by the applicant. The applicant has also
pointed out that the property has been assessed as a buildable lot the entire time that they have owned
it. This has been verified by the City Assessor, Dan Raboin. He states that a buildable lot is
determined by reviewing surrounding parcels on which homes are built and comparing them to the
lot being assessed.
When the City was planning for the reconstruction of Jane Road North in 2012, the Planning
Department was asked to review the assessment rolls for the project and to identify vacant, buildable
parcels that would need to pay an assessment. Lot 9 of Krause’s Addition was not deemed buildable
because it does not meet the 60% size requirement referenced above. Because the current Zoning
Regulations include a one-year time limitation concerning the time frame for construction of projects
subject to a variance, it is Staff’s opinion that the 60% requirement does apply in this situation. The
applicant had therefore submitted a variance request in order to re-classify this property as a
buildable lot.
The applicant’s parcel is situated at the intersection of Jamaca Avenue North and Jane Road North,
and is approximately 230 feet north of Lake Jane. Other than a tennis court, there have been no other
improvements constructed on the site. There is a fairly heavy amount of tree cover surrounding the
tennis court around the periphery of the lot. All of the surrounding lots are occupied by single family
residential homes. In general, the properties to the north and west are larger lots (1.5 acres), while
the properties to the south and east are smaller lots (generally under 1 acre). In particular, there is a
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PUBLIC HEARING ITEM 4A– PUBLIC HEARING
cluster of homes along the northern edge of Lake Jane than are very similar in size, and sometimes
smaller, than the applicant’s parcel. The attached map showing acreage of surrounding properties
demonstrates this.
PLANNING AND ZONING ISSUES
In reviewing the applicable codes and planning considerations that apply to the subject property,
Staff would like the Planning Commission to consider the following as it reviews this request:
Variance Expiration. The City Code specifies that variances are valid one year from the
date a variance is issued. If construction has not taken place within one year, the variance
becomes void. The applicant is requesting a variance from this standard. In order to
determine if this was allowable, Staff consulted the City Attorney (see attached email with
the “Buildable Lot Variance” as the Subject line). The City Attorney has stated that a
variance can be granted from the one year “expiration date” requirement from when a
variance is granted, as variances by their nature run with the land. The applicant would like to
preserve the right to build on this property so she can pass it on to her children. Because there
are no immediate plans or even a specific timeline as to when the property will be built on, it
may make sense that the City waive the requirement of continual re-application for a variance
unless a change is made that would rezone, re-guide, or put forth more restrictive regulations
in the zoning district in which this property is located.
Conditions of Previously Granted Variance.
1) The driveway for the future home of the lot shall access Jane Road North. Driveway
access to Jamaca Avenue North shall be prohibited. No plans have yet been
proposed. This should remain a condition of a building permit being issued for the
property.
2) The applicant shall provide a drainage easement for the portion of the lot that collects
storm water runoff from the subject property and adjacent parcels prior to the
issuance of a building permit for the site. The specific location of the drainage
easement shall be approved by the City Engineer. This should be a condition of
approval with a time limit placed on recording this.
3) The variance shall be valid for a period of five years, but may be renewed upon
review and approval by the Board of Adjustment. The applicant is proposing this be
changed so that the variance is valid in perpetuity. Staff does not see an issue with
the variance being granted until any one of the following events occurs, whichever
occurs first: the property’s Planned Land Use changes in the City’s Comprehensive
Plan; the property is rezoned; any changes are made to the City’s zoning
regulations for the RS – Rural Single Family zoning district that would make the
lot more non-conforming including but not limited to an increase in minimum lot
size requirements; or an increase in minimum lot width requirements. It should be
kept in mind that the variance being granted is for the minimum required lot size
only. All other standards must be met before this lot can be built on.
4) A grading, erosion control, and storm water management plan shall be submitted in
conjunction with a building permit for the property. This plan shall not exacerbate
any existing drainage issues and must be designed to mitigate any additional runoff
from any future construction on the site. This should remain a condition of a
building permit being issued for the property.
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PUBLIC HEARING ITEM 4A– PUBLIC HEARING
5) The applicant shall secure any required permits from the Valley Branch Watershed
District prior to commencing any grading or construction activity on the site. This
should remain a condition of a building permit being issued for the property.
6) The applicant shall submit a letter from Washington County that an approved septic
system can be located on the site prior to the issuance of a building permit for the
site. The applicant has been asked to provide this letter, which has not yet been
received. This should remain a condition of a building permit being issued for the
property.
7) The owner shall pay a fee comparable to the assessments levied against other homes
in the neighborhood for the 2012 Jane Road North road project. The City will
investigate options for reimbursing other property owners that were assessed for the
2012 project to account for the additional buildable lot. It has been verified with the
Finance Director that this property paid this assessment. The Finance Director is
looking in to whether or not neighboring properties received a reimbursement from
this assessment, as it is believed that the amount was deemed too small and
cumbersome to refund.
From the attached Staff Report dated 3/24/2014 (with updates):
RS District Setbacks. Any new construction on the lot will need to comply with all required
setbacks for the RS District. The portion of the lot that abuts Jamaca Avenue North is
considered the front property line, and is therefore subject to a slightly larger setback.
Driveway Access. Although the City Code does not include any restrictions on the location
of a driveway on the property, Staff is recommending that any future driveway access Jane
Road North instead of Jamaca Avenue North, since the latter is the less traveled roadway in
adjacent to the lot.
Impervious Coverage. The RS District allows a maximum impervious coverage of 25%
while the Shoreland Ordinance limits lot coverage to 15% or 6,000 square feet, whichever is
greater. The tennis court currently occupies 7,395 square feet, which is 21.6% of the lot. At
the time a new house is constructed on the property, the applicant will need to comply with
the maximum impervious coverage allowed under the Shoreland Ordinance.
Shoreland District Requirements
Setbacks. The lot is far enough away from Lake Jane that any new structure will be
able to comply with structure and septic system setbacks. [8/26/2016 Update: A
public hearing notice has been sent to the Minnesota Department of Natural
Resources as is required by State Statute for this variance request].
Minimum Lot Size Requirements. The subject property is a non-riparian,
unsewered lot located within a shoreland district of a General Development lake.
Both the City and the Minnesota Department of Natural Resources (DNR) set forth a
minimum lot size requirement of 40,000 square feet for such a property.
The subject lot, at 34,195 square feet, does not meet this requirement. However, M.S.
462.357 (e) provides that a nonconforming single lot of record located within a
6
PUBLIC HEARING ITEM 4A– PUBLIC HEARING
shoreland area may be allowed as a building site without variances from lot size
requirements, provided that:
(1) all structure and septic system setback distance requirements can be met;
(2) a Type 1 sewage treatment system consistent with Minnesota Rules, chapter 7080,
can be installed or the lot is connected to a public sewer; and
(3) the impervious surface coverage does not exceed 25 percent of the lot.
Granting the variance in perpetuity, with conditions, would not deviate from
Minnesota State Statute requirements.
Drainage Area. There is an existing drainage area immediately to the west and to the
northwest of the applicant’s lot, and it appears that a portion of the drainage area is also
located on this lot. While the adjacent Sprinborn’s Green Acres plat includes a drainage
easement over the adjacent lots, there is currently no such easement in place on the
applicant’s property. Staff is recommending that the applicant be required to provide a
drainage easement over the portion of the lot that collects storm water runoff as a condition
of approval and prior to the issuance of any building permits
for the property.
Planning and Engineering Staff have recently met with the applicant regarding buildability of
the lot and the requirements that would be needed for a home to be constructed on this lot due
to its areas of low elevation. The home will need to be built at the approximate elevation of
the tennis court, at two feet above the Ordinary High Water Level. The applicant understands
the work required to be done in regards to grading and drainage and understands that granting
a variance from minimum lot size requirements does not necessarily mean that a building
permit will be granted unless the plans comply with all other requirements. Additionally,
there is currently a drainage pipe located in the rear yard that became clogged during the Jane
Road street construction project. In order to provide future access to this pipe should this
situation occur in the future, Staff recommends that the applicant provide a Right of Entry
Agreement to the City.
Septic and Drainfield Areas. The subject parcel is large enough to meet the City’s
minimum requirement of 20,000 square feet for a primary and secondary septic system site,
depending on home design and location. The attached septic design is based on the home
being located within the footprint of the tennis court.
Surrounding Lots. The neighboring lots within the public hearing notification area range in
size from 11,424 square feet (0.26 acres) to 83,025 square feet (1.9 acres), and of these 13
lots, the average size is 41,592 square feet (0.95 acres).
REVIEW AND ANALYSIS
An applicant must establish and demonstrate compliance with the variance criteria set forth in Lake
Elmo City Code Section 154.017 before an exception or modification to city code requirements can
be granted. These criteria are listed below, along with comments from Staff regarding applicability
of these criteria to the applicant’s request.
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PUBLIC HEARING ITEM 4A– PUBLIC HEARING
1) Practical Difficulties. A variance to the provision of this chapter may be granted by the Board
of Adjustment upon the application by the owner of the affected property where the strict
enforcement of this chapter would cause practical difficulties because of circumstances unique to
the individual property under consideration and then only when it is demonstrated that such
actions will be in keeping with the spirit and intent of this chapter. Definition of practical
difficulties - “Practical difficulties” as used in connection with the granting of a variance, means
that the property owner proposes to use the property in a reasonable manner not permitted by an
official control.
FINDINGS: Strict enforcement of this chapter would cause practical difficulties because this lot was
originally platted as, and was bought at a time during which it was, of a buildable lot size. To deem
that it is now of an unbuildable lot size, and requiring that a variance be renewed every certain
number of years unless construction begins, decreases the value of the property. The owner would
like to leave it to her children as inheritance. She does not want to construct a home in the near
future but may need to if it is required that the variance must be renewed every certain number of
years, as it is not guaranteed that it will be continually granted. The Zoning Code permits properties
in the Rural Single Family zoning district to be used either as single-family detached dwellings or
parks and open areas. The owner is currently utilizing the lot in one way (open space/recreation) and
would like to protect the right, without having to apply for a variance from the minimum lot size
requirements again, to use it in the other permitted way (single-family detached dwelling). The
property is separated by road right-of-way and is not adjacent to others under common ownership,
so it is not practical for the owner to be expected to use it as open space indefinitely.
The property is very close to meeting the requirements set forth in Section 154.080, which provides
that any such lot or parcel of land which is in a residential district may be used for single-family
detached dwelling purposes, provided the area and width of the lot are within 60% of the minimum
requirements; provided all setback requirements are maintained and it can be demonstrated that safe
and adequate sewage treatment systems can be installed to serve the permanent dwelling. The lot is
0.785 acre, and 60% of the minimum lot size requirement of the Rural Single Family zoning district
of 1.5 acres is 0.9 acres, so the lot is only 0.115 acres less than what this Section requires. Setback
requirements would be approved as the building permit application was received, and it has been
determined that adequate sewage treatment systems can be installed. Also, the lot has direct access
to a platted and improved street, and a house can be placed on the property in a manner consistent
with surrounding homes. It should be noted that the variance request is a variance from minimum lot
size requirements; all other requirements and standards will need to be met before a building permit
will be issued.
2) Unique Circumstances. The plight of the landowner is due to circumstances unique to the
property not created by the landowner.
FINDINGS: The applicant’s property is unique due to former platting of this property as a buildable
lot and continued classification of the property as a buildable since the lot was subdivided, up until
the City adopted new zoning regulations. The applicant purchased the property with the
understanding that a house could someday be built on the property, and City records indicate that
the lot was indeed buildable at the time of purchase. Other homes on neighboring smaller lots were
constructed prior to the adoption of the City’s zoning regulations.
3) Character of Locality. The proposed variance will not alter the essential character of the
locality in which the property in question is located.
FINDINGS: The applicant’s lot is larger than several riparian lots in the surrounding
neighborhood and is close to the minimum size needed to be considered buildable. All other
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PUBLIC HEARING ITEM 4A– PUBLIC HEARING
surrounding lots within 1000 feet have houses on them. Therefore, constructing a house on this lot
would not alter the essential character of the locality in which the property is located. It should also
be noted that because the variance will expire within about two and a half years, a house would need
to be built on the lot sooner than if a variance from the time requirements to build was granted.
Allowing the variance to be granted in perpetuity, with the outlined conditions would allow adjacent
property owners more time to enjoy the open space the lot provides.
4) Adjacent Properties and Traffic. The proposed variance will not impair an adequate supply of
light and air to properties adjacent to the property in question or substantially increase the
congestion of the public streets or substantially diminish or impair property values within the
neighborhood.
FINDINGS. No impacts above and beyond those considered normal for any other single-family lot
in the surrounding neighborhood would be expected should the variance be granted. Granting the
variance in perpetuity with conditions would protect the subject property’s value for the future while
allowing neighbors to enjoy the open space in the interim. Additionally, granting the variance in
perpetuity with conditions will better inform future potential buyers that the lot is potentially
buildable. They will not be surprised when/if a variance is granted from the minimum lot size
standards in the future.
RECOMMENDATION:
Staff recommends that the Planning Commission recommend approval of the request of Suzanne
Horning, for a variance from the minimum lot size requirements in the RS – Rural Single Family
Residential zoning district and from the maximum time of one year for which a variance is valid.
This recommendation includes the following conditions of approval:
1) The driveway for the future home of the lot shall access Jane Road North. Driveway access
to Jamaca Avenue North shall be prohibited.
2) The applicant shall provide a drainage easement for the portion of the lot that collects storm
water runoff from the subject property and adjacent parcels before a building permit is issued
for the site. The specific location of the drainage easement shall be approved by the City
Engineer.
3) The variance shall be valid until any one of the following events occurs, whichever occurs
first: the property’s Planned Land Use changes in the City’s Comprehensive Plan; the
property is rezoned; any changes are made to the City’s zoning regulations for the RS – Rural
Single Family zoning district that would make the lot more non-conforming including but not
limited to an increase in minimum lot size requirements; or an increase in minimum lot width
requirements.
4) A grading, erosion control, and storm water management plan shall be submitted in
conjunction with a building permit for the property and approved by the City Engineer.
5) The applicant shall secure any required permits from the Valley Branch Watershed District
prior to commencing any grading or construction activity on the site.
6) The applicant shall submit a letter from Washington County that an approved septic system
can be located on the site prior to the issuance of a building permit for the site.
7) The applicant shall submit a Right of Entry Agreement to the City so that it may access the
property for repairs to the drainage pipe on the property if need be.
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PUBLIC HEARING ITEM 4A– PUBLIC HEARING
The suggestion motion for taking action on the Staff recommendation is as follows:
“Move to recommend approval of the request for a variance from the minimum lot size
requirements in the RS – Rural Single Family Residential zoning district and from the maximum
time of one year for which a variance is valid, subject to the conditions of approval as
recommended by Staff”
ATTACHMENTS:
1. Application Form and Project Narrative
2. Email From City Attorney Regarding Variance From Time Restrictions
3. Location Map
4. 2014 Variance Application and Narrative
5. Septic System Report – Tom Trooien
6. Planning Commission Staff Report and Minutes from 2014 Variance Public Hearing
7. City Council Staff Report and Minutes from 2014 Variance
8. Resolution 2014-22
ORDER OF BUSINESS:
- Introduction ........................................................................................ Planning Staff
- Report by Staff ................................................................................... Planning Staff
- Questions from the Commission ............................ Chair & Commission Members
- Open the Public Hearing .................................................................................. Chair
- Close the Public Hearing .................................................................................. Chair
- Discussion by the Commission .............................. Chair & Commission Members
- Action by the Commission ..................................... Chair & Commission Members
From:Sonsalla, Sarah J.
To:Emily Becker
Cc:Kristina Handt; Sonsalla, Sarah J.
Subject:RE: Buildable Lot Variance
Date:Tuesday, August 02, 2016 2:20:43 PM
Dear Emily
I reviewed this issue. The answer to your first question is that the more restrictive standards should
apply (the Shoreland ordinance specifically says “when the requirements of the underlying zoning
district as shown on the official zoning map are more restrictive than those set forth in the
Shoreland Ordinance, the more restrictive standards shall apply” (Section 150.255 of the City Code)).
The answer to your second question is that it is possible for a variance to be granted in perpetuity.
Variances by their nature run with the land, but most cities do place an expiration date on them,
similar to Lake Elmo (it looks like Lake Elmo has a 12 month expiration date if the construction does
not commence). That is perfectly acceptable, although the second part of Lake Elmo’s variance
expiration clause is probably not legal (the variance expires if the use ceases for more than six
consecutive months) because the variance runs with the land and should not be taken away for non-
use. I would recommend that this provision be removed from the City’s code.
It appears that she has been granted a variance from the requirement that construction must start
within one year and that she was given five years. I suppose that is acceptable since it was treated
as a variance. I suppose that she could ask for another variance from the one year requirement (and
that it could be for an unlimited amount of time) or alternatively, she could request that the City
change its code to remove the one year requirement. I don’t know if the City would be willing to
remove the one year requirement, but it is something that could be considered.
Let me know if you have any other questions.
Thanks!
Sarah
Sarah J. Sonsalla | Attorney | Kennedy & Graven, Chartered |470 U.S. Bank Plaza | 200 South Sixth Street |
Minneapolis, MN 55402 |direct: 612.337.9284 | fax: 612.337.9310 | e-mail: ssonsalla@kennedy-graven.com
From: Emily Becker [mailto:EBecker@lakeelmo.org]
Sent: Thursday, July 28, 2016 11:38 AM
To: Sonsalla, Sarah J.
Subject: Buildable Lot Variance
Good morning Sarah,
A resident is inquiring about the attached Resolution. She was granted a variance for five years to
build on a lot that does not meet minimum lot size requirements (it is .7851 acres, not meeting our
“buildable (without a variance) lot size requirements” of 60% of the minimum requirements (1.5
acres for this zoning district) set forth in 154.080: Additional Regulations and Modifications of the
Zoning Code). There is a structure on the lot (a tennis court), which was built in the 80’, and the
property is on a non-riparian lot within the shoreland. A couple questions I have:
-I know there are provisions in the shoreland district that allow a structure to be built on a lot that
was platted prior to the adoption of the shoreland district but that does not meet shoreland
requirements in terms of lot area but can still meet setbacks, but does the more restrictive provision
still apply (the provision of the zoning district that requires a lot size of 1.5 acres)?
-Is it legally possible for a variance to be granted in perpetuity? Or even 5 years? I thought
construction for which the variance was granted needed to begin with a year of the variance being
granted, but this variance was provided for 5 years.
I do understand that, per the Resolution, she is allowed to request a renewal, but she is really
looking to be granted a variance in perpetuity, but from what I’m understanding, this is not possible.
We did express that constructing a principal structure would also solve the problem, but she is not
looking to build for more than ten years. Another option I provided was to re-look at our non-
conforming ordinance to reconsider the 60% rule, but that was not considered a viable option.
Emily Becker
City Planner
City of Lake Elmo
651-747-3912
ebecker@lakeelmo.org
Source: Esri, DigitalGlobe, GeoEye, i-cubed, USDA, USGS, AEX, Getmapping,
Aerogrid, IGN, IGP, swisstopo, and the GIS User Community
Data Scource: Washington County, MN
2-26-2014
Location Map: 09.029.21.11.0015
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Variance Request
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PUBLIC HEARING ITEM 4B – ACTION ITEM
PLANNING COMMISSION
DATE: 9/12/2016
AGENDA ITEM: 4B – PUBLIC HEARING
CASE # 2016-39
ITEM: Removing the Prohibition of Solid Wall Fences Over Four Feet in Height
on Any Lot Under ½ Acre
SUBMITTED BY: Emily Becker, City Planner
REVIEWED BY: Stephen Wensman, Planning Director
SUMMARY AND ACTION REQUESTED:
On August 16, 2016, City Council directed Staff to bring to the Planning Commission for discussion
a text amendment to the City’s fencing regulations that would remove the restriction of solid wall
fences over four feet in height on properties under half an acre.
On August 22, 2016, the Planning Commission discussed the removal of this restriction and directed
Staff to put the item on the Public Hearing Agenda for tonight’s Planning Commission meeting.
As such, the Planning Commission is asked to hold a public hearing and consider recommending
approval of an ordinance amendment to fencing regulations that prohibit, with exceptions, solid wall
fences over four feet in height on any lot under ½ acre.
REQUEST DETAILS:
Section 154.205: Fencing Regulations (E) (3) (below) prohibits solid wall fences over four feet
in height on lots under ½ and acre, except under certain circumstances:
Residential Fence Design Requirements. Solid wall fences over four (4) feet in height shall be
prohibited on any lot under ½ acre (21,780 square feet) in size. Any portion of a fence over four (4)
feet on such lots shall be at least 75% open to light and air, except under one of the following
circumstances:
a. When a residential property abuts a district or use of a higher classification, and
specifically, when an A, RR, RS, RE, or LDR district abuts any other district or a single
family residential use abuts a multi-family residential use or a non-residential use.
b. When a property is a through lot and abuts a street that is a higher functional classification
than the street abutting the front yard of the property.
c. For screening of outdoor living space subject to the following criteria:
i. The area enclosed by outdoor extended living area fencing shall not exceed an
enclosed area of 500 square feet.
ii. A fence utilized to enclose and outdoor living area shall be extended to a point not
more than 6 inches from the principal structure at 1 fence termination point.
iii. A fence utilized to enclose an outdoor extended living area shall not extend into
side yard of a lot beyond the existing building line of the existing principal structure,
nor shall such fences be located in any side or front street yard.
2
PUBLIC HEARING ITEM 4B – ACTION ITEM
d. For screening or privacy purposes when the lineal measurement of the fence does not
exceed one-fourth (¼) of the linear distance of the perimeter of a lot. Such fences may
only be installed with the written consent of the adjacent property owner.
e. Under other circumstances when a solid fence is warranted due to safety, health, animal
containment or similar purposes subject to review and approval by the City Council and
with the written consent of the adjacent property owner.
A brief history of the adoption of this regulation is provided below.
5/13/2013: Fence regulations are discussed at the Planning Commission meeting.
Regulations at that time prohibited privacy fencing, and the proposed ordinance
amendment allowed for solid fences up to six feet in height except in front and side (corner)
yard setbacks. Anticipated higher density residential development was cited as the reason
for the recommendation of allowing privacy fencing, as the demand for this type of fencing
would likely increase.
5/23/2013: Public Hearing is held on the ordinance. There is discussion over whether or
not the air and openness requirement for those portions of a fence over 4 feet in height is
appropriate, but the final version of the amendment does not include the provision.
6/4/2013: The fence ordinance amendment is brought to Council. There is concern about
allowing a six foot solid wall fence in small yards. A discussion about the ordinance at a
workshop is requested.
6/11/2013: Item is brought to Council Work Session. Concern is again expressed about
solid wall fences being put up on smaller lots. There was discussion about prohibiting such
fences on lots of ½ acre or less, and there is concern that this could be seen as discrimination
against those property owners of such lots.
6/18/2013: Fence ordinance amendment is on the agenda but tabled until the next meeting
when all members are expected to be present.
7/2/2013: The fence ordinance amendment, along with an alternative version of the
proposed amendment, is discussed. The alternative version prohibited solid wall fences
over four feet on lot ½ acre in size. There was a significant amount of discussion over
whether or not to strike the ½ acre lot size provision. The matter was tabled to a later
council meeting.
7/16/2013: The ordinance amendment, provided above, is adopted.
PLANNING AND ZONING ISSUES/REVIEW AND ANALYSIS:
Regulation in Other Cities. An attached list names cities that, according to research performed by
previous Staff, allow privacy fences six feet in height. Staff has recently verified that such fences are
still allowed in these cities.
Permitted Encroachment Restrictions. Section 154.081: Permitted Encroachments on Required
Yards, requires that fences in side and rear yards need to be 30% open to air and light. Even if the
3
PUBLIC HEARING ITEM 4B – ACTION ITEM
prohibition of solid wall fences over four feet in height on lots under ½ an acre is removed, fences
would still need to adhere to this requirement unless this requirement is also removed.
Lot Size. Smaller lot sizes usually increase the need for privacy since houses are spaced closer
together. Therefore, one could argue that it makes more sense to allow privacy fencing on smaller
lots as opposed to larger lots.
Screening. Privacy fences provide screening from nuisances. While there are certain nuisances that
can be enforced through City Code, the enforcement process can be lengthy and not always effective.
Additionally, what some property owners may consider a nuisance may not be covered in the
Nuisance Ordinance. A four-foot high fence does not block views from a neighboring property.
When lots are small, it is much more difficult to ignore what one considers a nuisance on a
neighboring property.
Open Space Preservation. Staff understands that the underlying reason for placing a height
restriction on solid wall fences for smaller lots is to be in keeping with the City’s goal of open space
preservation. As such, Staff has prepared two different options for ordinance amendments. These
options are explained below:
Option #1
Eliminates the prohibition of solid wall fences on lots under half an acre altogether.
This option would allow solid wall/privacy fences up to six feet height on any residential
property, provided all other standards are met.
This option also eliminates the requirement of Subd. B of Section 154.081: Permitted
Encroachments on Required Yards, which mandates that fences located in side or rear
yard setbacks be 30% open. The Planning Commission may wish to keep this provision,
which would require that any solid wall fence that is constru cted on any property be
within side and rear yard setbacks. It should be noted that the requirement that fences that
are located in front and side (corner) yard setbacks be at least 50% open to air and light
still would apply.
Option #2
Modifies Subp. d. by eliminating the requirement that an adjacent property owner give
permission to erect a fence on one-fourth of the linear distance of the perimeter of the lot.
Privacy fences are so named because they provide concealment and sanctuary, and it
should be considered that neighbors do not always get along. Whether or not a certain
type of fence can be erected should not be decided by an adjacent property owner. It
should be kept in mind that permission from an adjacent property owner would still be
required if a fence is erected on a shared property line. This provision makes sense, as the
installation and maintenance of the fence would require access of the adjacent property;
also, property lines can be disputed.
Exempts fences that do not exceed one-fourth of the linear distance of the perimeter of a
lot from the 30% openness requirement of Section 154.081 (B) for fences within side and
rear yard setbacks. This allows a property owner to adequately screen a certain portion of
their property. All other provisions for fences would apply; for instance, such fences
could not be placed in the front or side (corner) yard setback.
Additionally, exception “e,” which allows fences that are erected “under other
circumstances when a solid fence is warranted due to safet y, health animal containment,
or similar purposes subject to review and approval by the City Council and with the
written consent of the adjacent property owner,” is eliminated, as this exception is
4
PUBLIC HEARING ITEM 4B – ACTION ITEM
objective, and allowing an adjacent property owner or the Council to determine this may
be considered discriminatory.
RECOMMENDATION:
Staff recommends that the Planning Commission recommend approval of Ord. 08- Option #2
attached. The recommendation of the recommended ordinance revision may be made through the
following motion:
“Move to recommend approval of Ord. 08- (Option #2), which amends Sec. 154.205: Fencing
Regulations; Subd. (E) (3), by repealing language of Subp. d that requires permission from an
adjacent property owner to erect a solid wall fence up to six feet in height for screening or privacy
purposes when the lineal measurement of the fence does not exceed one-fourth of the linear
distance of the perimeter of the lot on a lot under half an acre; and which repeals Subp. e..
ATTACHMENTS:
Ord. 08- Option #1
Ord. 08- Option #2
Fence Code Research – Other cities that allow 6’ solid fences
ORDER OF BUSINESS:
- Introduction ........................................................................................ Planning Staff
- Report by Staff ................................................................................... Planning Staff
- Questions from the Commission ............................ Chair & Commission Members
- Open the Public Hearing .................................................................................. Chair
- Close the Public Hearing .................................................................................. Chair
- Discussion by the Commission .............................. Chair & Commission Members
- Action by the Commission ..................................... Chair & Commission Members
Ord. 08- Option #1
1
CITY OF LAKE ELMO
COUNTY OF WASHINGTON
STATE OF MINNESOTA
ORDINANCE NO. 08-____
AN ORDINANCE AMENDING THE LAKE ELMO CITY CODE OF ORDINANCES BY
REPEALING THE PROHIBITION OF SOLID WALL FENCES IN THE LAKE ELMO ZONING
CODE.
SECTION 1. The City Council of the City of Lake Elmo hereby amends Title XV:
Land Usage; Chapter 154: Zoning Code; Section 154.205: Fencing Regulations, by
repealing Subd. (E) (3): Residential Fence Design Requirements:
E. Fence Height and Design
1. Fences within Front and Side (Corner) Yards. Any fence within a front or side
(corner) yard setback may not exceed forty-two (42) inches in height and must be
50% open to air and light.
2. Residential and Mixed-Use Districts. No fence or wall shall exceed six feet (6’) in
height, and shall be subject to the design requirements of §154.205.E.3.
3. Residential Fence Design Requirements. Solid wall fences over four (4) feet in
height shall be prohibited on any lot under ½ acre (21,780 square feet) in size.
Any portion of a fence over four (4) feet on such lots shall be at least 75% open to
light and air, except under one of the following circumstances:
a. When a residential property abuts a district or use of a higher classification,
and specifically, when an A, RR, RS, RE, or LDR district abuts any other district
or a single family residential use abuts a multi-family residential use or a non-
residential use.
b. When a property is a through lot and abuts a street that is a higher functional
classification than the street abutting the front yard of the property.
c. For screening of outdoor living space subject to the following criteria:
i. The area enclosed by outdoor extended living area fencing shall not exceed
an enclosed area of 500 square feet.
ii. A fence utilized to enclose an outdoor extended living area shall be
extended to a point not more than 6 inches from the principal structure at
1 fence termination point.
iii. A fence utilized to enclose an outdoor extended living area shall not extend
into side yard of a lot beyond the existing building line of the existing
principal structure, nor shall such fences be located in any side or front
street yard.
d. For screening or privacy purposes when the lineal measurement of the fence
does not exceed one-fourth (¼) of the linear distance of the perimeter of a lot.
Ord. 08- Option #1
2
Such fences may only be installed with the written consent of the adjacent
property owner.
e. Under other circumstances when a solid fence is warranted due to safety,
health, animal containment or a similar purposes subject to review and
approval by the City Council and with the written consent of the adjacent
property owner.
3. 4. Commercial and Industrial Districts. No fence or wall shall exceed eight feet (8’)
in height. Fences that exceed eight feet (8’) in height require a conditional use
permit.
SECTION 2. The City Council of the City of Lake Elmo hereby amends Title XV: Land
Usage; Chapter 154: Zoning Code; Section 154.081: Permitted Encroachments on
Required Yards, Subd. (B), by repealing the following:
(B) Side and rear yards. Fences 30% open; walls and hedges 6 feet in height or less;
bays not to exceed a depth of 3 feet or containing an area of more than 30
square feet; fire escapes not to exceed a width of 3 feet.
SECTION 3. Effective Date. This ordinance shall become effective immediately upon
adoption and publication in the official newspaper of the City of Lake Elmo.
SECTION 4. Adoption Date. This Ordinance 08-___ was adopted on this ___ day of
____ 2016, by a vote of ___ Ayes and ___ Nays.
LAKE ELMO CITY COUNCIL
______________________________
Mike Pearson, Mayor
ATTEST:
_______________________________
Julie Johnson, City Clerk
This Ordinance 08-____ was published on the ____ day of ___________________, 2016.
Ord. 08- Option #2
1
CITY OF LAKE ELMO
COUNTY OF WASHINGTON
STATE OF MINNESOTA
ORDINANCE NO. 08-____
AN ORDINANCE AMENDING THE LAKE ELMO CITY CODE OF ORDINANCES BY
REPEALING THE PROHIBITION OF SOLID WALL FENCES IN THE LAKE ELMO ZONING
CODE.
SECTION 1. The City Council of the City of Lake Elmo hereby amends Title XV:
Land Usage; Chapter 154: Zoning Code; Section 154.205: Fencing Regulations;
Subd. (E) (3): Residential Design Requirements, by amending the following:
E. Fence Height and Design
1. Fences within Front and Side (Corner) Yards. Any fence within a front or side
(corner) yard setback may not exceed forty-two (42) inches in height and must be
50% open to air and light.
2. Residential and Mixed-Use Districts. No fence or wall shall exceed six feet (6’) in
height, and shall be subject to the design requirements of §154.205.E.3.
3. Residential Fence Design Requirements. Solid wall fences over four (4) feet in
height shall be prohibited on any lot under ½ acre (21,780 square feet) in size.
Any portion of a fence over four (4) feet on such lots shall be at least 75% open to
light and air, except under one of the following circumstances:
a. When a residential property abuts a district or use of a higher classification,
and specifically, when an A, RR, RS, RE, or LDR district abuts any other district
or a single family residential use abuts a multi-family residential use or a non-
residential use.
b. When a property is a through lot and abuts a street that is a higher functional
classification than the street abutting the front yard of the property.
c. For screening of outdoor living space subject to the following criteria:
i. The area enclosed by outdoor extended living area fencing shall not exceed
an enclosed area of 500 square feet.
ii. A fence utilized to enclose an outdoor extended living area shall be
extended to a point not more than 6 inches from the principal structure at
1 fence termination point.
iii. A fence utilized to enclose an outdoor extended living area shall not extend
into side yard of a lot beyond the existing building line of the existing
principal structure, nor shall such fences be located in any side or front
street yard.
d. For screening or privacy purposes when the lineal measurement of the fence
does not exceed one-fourth (¼) of the linear distance of the perimeter of a lot
Ord. 08- Option #2
2
and is located in the side or rear yard. Such fences are exempt from the 30%
openness requirement for fences within side and rear yard setbacks of Section
154.081 (B) but must adhere to all other provisions of this chapter. Such fences
may only be installed with the written consent of the adjacent property owner.
e. Under other circumstances when a solid fence is warranted due to safety,
health, animal containment. or a similar purposes subject to review and
approval by the City Council and with the written consent of the adjacent
property owner.
4. Commercial and Industrial Districts. No fence or wall shall exceed eight feet (8’)
in height. Fences that exceed eight feet (8’) in height require a conditional use
permit.
SECTION 2. Effective Date. This ordinance shall become effective immediately upon
adoption and publication in the official newspaper of the City of Lake Elmo.
SECTION 3. Adoption Date. This Ordinance 08-____ was adopted on this ___th day of
________, 2016, by a vote of ___ Ayes and ___ Nays.
LAKE ELMO CITY COUNCIL
______________________________
Mike Pearson, Mayor
ATTEST:
_______________________________
Julie Johnson, City Clerk
This Ordinance 08-_______ was published on the ____ day of ___________________,
2016.
City Allows 6' Solid Fence?
Anoka Yes
Apple Valley Yes
Blaine Yes
Bloomington Yes
Brooklyn Center Yes
Burnsville Yes
Cottage Grove Yes
Eagan Yes
Eden Prairie Yes
Edina Yes
Forrest Lake Yes
Golden Valley Yes
Inver Grove Heights Yes
Maple Grove Yes
Minneapolis Yes
Oakdale Yes
Rosemount Yes
Richfield Yes
Stillwater Yes
South St. Paul Yes
St. Louis Park Yes
St. Paul Yes
Wayzata Yes
West St. Paul Yes
Woodbury Yes
Fence Ordinance Research