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2020-10-08 Planning Commission MinutesAPPROVED 10/27/2020 October 8, 2020 Mendota Heights Planning Commission Meeting Page 1 of 10 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY, MINNESOTA PLANNING COMMISSION MINUTES OCTOBER 8, 2020 The special meeting of the Mendota Heights Planning Commission was held on Thursday, October 8, 2020 in the Council Chambers at City Hall, 1101 Victoria Curve at 7:00 P.M. The following Commissioners were present: Chair Mary Magnuson, Commissioners John Mazzitello, Patrick Corbett, Litton Field, Michael Toth, and Brian Petschel. Commissioner Andrew Katz was absent. Hearings A)PLANNING CASE 2020-15 MICHELLE CULLIGAN (ACTING ON BEHALF OF LARRY AND MARY CULLIGAN), GENERALLY LOCATED AT THE NW QUADRANT OF VICTORIA CURVE AND GLENHILL ROAD – PRELIMINARY PLAT, CRITICAL AREA PERMIT, CONDITIONAL USE PERMIT AND VARIANCES Community Development Director Tim Benetti explained that Michelle Culligan, acting on behalf of her parents and property owners Larry and Mary Culligan, is seeking to subdivide an existing vacant parcel into nine new lots, to be titled “Valley View Oak 3rd Addition”. The plat would create eight new single-family building lots and one existing lot for the Culligan home. This preliminary plat includes a request for a critical area permit (CAP) due to the location of this site in the Mississippi River Critical Area, a conditional use permit (CUP) to develop and disturb areas on slopes between 18 and 40 percent throughout the site, and variances to certain roadway standards, retaining wall standards, structure setbacks and other standards related to proposed construction activities. Hearing notices were published and mailed to all properties within 350-ft. of the site; and noted that the concerns and responses were included as a part of the packet. Community Development Director Tim Benetti provided a planning staff report and a presentation on this planning item to the Commission (which is available for viewing through the City’s website). Staff reviewed the possible actions the Commission could take. Commissioner Corbett asked staff for additional details on the secondary DNR letter received related to this request. He stated that in his interpretation of the letter, it states that the City has antiquated ordinances for what defines a bluff; therefore, this plan is based on antiquated and poor definitions. He stated that the City should be using this guidance for its decision, as the City ordinances will need to be updated in the future to match these 2017 regulations of the DNR. APPROVED 10/27/2020 October 8, 2020 Mendota Heights Planning Commission Meeting Page 2 of 10 Community Development Director Tim Benetti commented that although the DNR did update its rules, the City has an identified amount of time to update its ordinance and is currently operating under the existing ordinances. Commissioner Corbett commented that based on the new definitions, this whole area would be a bluff and undevelopable. Chair Magnuson stated that she shared those same concerns. She stated that there is a rule that requires cities to adopt ordinances that meet the new standards but until that is done, cities are required to review requests under their existing ordinances. She stated that notice has been provided to the City and the City has one year to update its ordinances. Commissioner Petschel asked if it is known when the subsequent Braun Intertec report would be available. He stated that it appears the report makes no statement about the stability of the land post-project. COMMISSIONER FIELD, MOVED, SECONDED BY COMMISSIONER TOTH, TO REOPEN THE PUBLIC HEARING. AYES: 7 NAYS: 0 Michelle Culligan, applicant, stated that they took the feedback, questions and concerns raised in July and made the changes to the plan as proposed tonight. He stated that the objective has been to approach this in an environmentally conscious method with a focus on preservation of wooded lands, stormwater management/drainage/grading, retaining walls, soils analysis and slope stability. She provided some pictures of the existing conditions on the site. Tom Goodrum, Loucks, stated that he was part of the DNR Task Force and Met Council related to the rules process and confirmed that cities are intended to follow their existing rules until their ordinances are updated. He stated that within the critical area, this property is identified as CASR (critical area separated from river) and noted that all of the adjacent properties are within the same CASR area and are developed. He stated that the DNR expects development within this area of the critical area, as long as it is sensitive and follows the appropriate regulations. He stated that this project is focuses on the goals of the CASR as it minimizes development impacts and focuses on erosion and stormwater control. He stated that the variances are requested in order to minimize development impacts on erosion and stormwater control. Commissioner Petschel asked if Mr. Goodrum is a civil engineer. Mr. Goodrum replied that he is a City Planner. Commissioner Petschel asked if these statements should then be considered statement of fact. Commissioner Mazzitello stated that he would ask that the geotechnical engineer to address that issue. APPROVED 10/27/2020 October 8, 2020 Mendota Heights Planning Commission Meeting Page 3 of 10 Commissioner Petschel stated that he is attempting to consider the comments as statement of fact but wanted to ensure that he has the proper credentials. Mr. Goodrum provided details on the slope analysis. He stated that their proposed development is designed to focus on erosion and stormwater control issues. Michael St. Martin, Loucks, stated that he has been involved for the past eight months, along with Braun Intertec. He reviewed the project area summary identifying areas that would be placed in conservation easement through the HOA, areas that would be used for development of homes and infrastructure, and the area designated for the pond. He provided details on the stormwater management and drainage plan, including the Storm Water Pollution Prevention Plan (SWPPP) and ongoing maintenance duties. He described the path that the drainage currently follows to Mendota and noted that the majority of that water post development would be captured through this system and its storm sewer. He reviewed the proposed rates of reduction for the property under the proposed conditions. He described details of the grading plan and retaining walls as related to the soils and slope analysis. Commissioner Petschel asked for input on the statement that the City’s retaining wall ordinance having no basis in engineering best practices. Mr. St. Martin replied stated described the challenge with a five-foot wall height and 20-foot terrace. He stated that with that design they would never catch grade and would have had to remove many more trees. Commissioner Petschel recognized that the ordinance is not as flexible and adds design challenges. He asked if the City is violating engineering best practices or whether there would be a reason someone would want 20-foot separation. Mr. St. Martin replied that it is very conservative and would consider that a landscaping wall to make up grade. Commissioner Toth confirmed that the road would be the first element and asked the number of yards of soil that will be removed in order to put in the base and where the soil would be stored. Mr. St. Martin explained that this would be almost an entirely imported project. He described the process they would follow and where they would stockpile soils. He reviewed the timeline of when the different site improvements would be completed. Commissioner Toth asked what would be put in place to prevent the soil from moving down the hill when constructing the retaining walls. Mr. St. Martin explained how the retaining wall construction process would occur. He stated that he is confident that during a rain event, the soils would be held in place and described the materials that could be used to reinforce the soils. He provided details on possible landscaping species. APPROVED 10/27/2020 October 8, 2020 Mendota Heights Planning Commission Meeting Page 4 of 10 Commissioner Toth stated that over a period of time the tree root will grow down and could find the weakest point of the retaining wall, which could cause it to collapse. Mr. St. Martin stated that the root mass itself helps to stabilize the wall. Commissioner Toth asked when excavation would begin if this project is approved. Mr. St. Martin replied that would occur in the spring. Commissioner Toth commented that this parcel will be open and the soil will absorb next year’s moisture but asked if after a point of time, because of the freeze/thaw cycle, the layers of rock could expand and cause a failure in the wall system. Mr. St. Martin replied that the key component is to control the water and provided details on the freed raining rock system that would be tied into the geosystem. Commissioner Toth asked the maintenance that would be completed on the walls and who would be responsible. Mr. St. Martin provided details on the maintenance and noted that would be the responsibility of the HOA. He provided details on the drainage system that would be installed as a part of the road construction. He explained that they are intercepting the drainage at multiple locations. He compared the existing condition to the proposed conditions. Commissioner Toth commented that the drain tile would only be efficient when it is not frozen conditions. He noted that under spring melt conditions that water would flow down to the wall. Mr. St. Martin stated that the drain tile under the street would not be frozen and would still intercept that water and direct that to the pond and downstream storm sewer. Commissioner Petschel asked why a barrier is not shown in one location and asked for details related to liability. Mr. St. Martin commented that fences could be installed atop the walls and at the ends of the walls which would prevent people from accessing that area without climbing a fence. He stated that it would be a question related to foot traffic and noted that they would review those details further. He provided photographic examples of different retaining walls and fencing. Commissioner Corbett asked if this project could be completed without variances. Mr. St. Martin commented that they would never catch grade without the retaining wall variance. He noted that without the three-tier system they would be using the house as the first tier. Commissioner Corbett stated that there are so many variances requested and that one could wonder if this is the right fit if it cannot meet the requirements of so many ordinances. He asked for input on the DNR letter. APPROVED 10/27/2020 October 8, 2020 Mendota Heights Planning Commission Meeting Page 5 of 10 Mr. St. Martin replied that he has built projects on very challenging sites with bluffs and noted that the key is controlling the water. He described the measures that are put in place to ensure it is done right. Commissioner Corbett asked if the applicant has any thoughts as to why the DNR recommendation changed to lead in that way. He commented that the City has experienced many failures along the bluff line in the past five years. Mr. St. Martin replied that the DNR is charged to protect natural resources and therefore will take a conservative approach. He stated that they would like to build a development in the proper manner to ensure that there are not problems down the road, and they believe that can be done. Commissioner Corbett asked who would be responsible for the holding pond and ensuring that is working. Mr. St. Martin commented that the front entry landscaping and pond would be a part of the HOA owned land. He stated that the walls would technically be owned by the homeowner whose property it would lie on, but the HOA would maintain the walls. Public Works Director Ryan Ruzek commented that in a typical development, the roadway, utilities, and stormwater ponds do become an asset of the City. He stated that he requested that the pond be in an accessible location and that is why this location was chosen. Commissioner Corbett noted that his question was in attempt to determine whom would be responsible in terms of liability if things were to fail. He asked if there has been any work with the citizens of Mendota to benchmark the existing conditions and ensure that this development does not exacerbate those conditions. Mr. St. Marin noted that they heard the comments from the residents in Mendota and provided examples of how some of that water will be intercepted through the project. Commissioner Corbett asked what would happen if a pylon for a retaining wall tapped into an underground spring and exacerbated the current flow. He believed that a plan should be in place for the what ifs. Mr. St. Martin explained the process that would occur to build the wall and noted that everything would be visible throughout the process. Commissioner Toth referenced the base of the wall and asked the depth at which that would be buried. Mr. St. Martin replied that it would be two to three courses below grade. He provided details on the type of block that is being considered, noting that it would most likely be eight inches high and 16 inches in length. APPROVED 10/27/2020 October 8, 2020 Mendota Heights Planning Commission Meeting Page 6 of 10 Commissioner Mazzitello asked where the bedrock is on the diagram. Mr. St. Martin replied that they did not hit bedrock and their deepest coring was 63 feet. Chair Magnuson commented that having the material prepared earlier rather than receiving it tonight would have been helpful to allow additional review and research. She stated that she appreciates the comments, but it would have been helpful to have the information earlier. Mr. Goodrum acknowledged that this request includes a number of variances and provided further detail on why each variance is required. Bob Brewstal, Mendota resident, stated that retaining walls are not containing walls. He stated that the surface water will filter into the rock and down below. He asked the definition of critical area. Chair Magnuson commented that there is a Federal law which gives states and local governments the ability to regulate the delineated Mississippi Critical Area. She stated that the critical area has specific requirements that must be adhered to in addition to the other zoning regulations. Mr. Brewstal stated that the engineer referenced retaining walls, rather than containing walls, which means that the water will come downhill one way or the other. He stated that he is very concerned with the water that will drain down to Mendota. He commented that another local native American group will be providing a letter to Mendota Heights the following day in objection to the project. Julie Hunt, 1224 Culligan Lane, stated that they moved to Mendota Heights five years ago and find the location near the river ideal. She commented that they have been enthusiastically welcomed to the neighborhood. She recognized the amount of work that the Planning Commission does in its review of applications and thanked the Commission for their service. She stated that the 49-page proposal introduced by Loucks in July was technical, as were they answers they provided tonight related to why the Commission should approve the variances. She commented that this is within the critical area and expressed concern at the number of variances that would be required in order to support this project. She stated that the initial July proposal was missing key components related to the City’s critical area plan. She stated that the neighbors also expressed concern. She thanked the applicant for addressing some of the concerns that arose and additional details that were requested earlier. She stated that she is concerned with what could occur from extensive digging in this area and the impact that could occur to neighboring properties. She displayed a map stated that this area considered for the project is considered a bowl, which is a sensitive area. She commented that her home is on the top of the bowl, at the rim, and stated that the development is proposed to be constructed within the bowl. She explained that she has been told that when you disturb the land within the bowl it can impact the stability of the properties along the rim. She stated that has not yet been mentioned in the proposal and that is why the neighboring property owners came together to have their own report completed. She asked that if the Planning Commission recommend approval, it include a warranty from the developer that this development would not impact the neighboring properties in Mendota Heights and Mendota. She stated that earth movement is not covered by property insurance and therefore any catastrophic APPROVED 10/27/2020 October 8, 2020 Mendota Heights Planning Commission Meeting Page 7 of 10 event would have a large impact. She stated that the report seemed to mention that the DNR is approving this but found it odd that the DNR is funding and supporting documents that shove that this area should not be developed. She stated that she finds the new DNR report concerning and asked why the City is not in compliance with the new rules. She disagrees with the Loucks answer and believes that the consultant should have an ethical requirement to share that knowledge of the DNR regulations. Kelton Barr, Hydrogeologist, stated that he was retained by several neighbors to review the hydrogeology and context of this project. He stated that the report he sent was preliminary as it was based on public information as he did not yet have the shallow Braun boring details. He provided details on the materials that makeup this area, the different layers, and underground springs. He believed deeper borings should be completed to determine where permeable layers occur. He commented that there will be flat surfaces constructed to construct the homes and therefore the area will become trellised and backfilled with sandy material which could result in more infiltration that existing conditions. He commented that drain tile requires maintenance or it will become ineffective. He stated that this particular bowl has a lot of the markings of areas that have experienced failures in the past and wanted to make sure the City is aware of that. Commissioner Field asked if the biggest impediment to rendering an opinion would be the lack of deeper borings. Mr. Barr confirmed that to be true. He stated that he would like to see borings that reach bedrock to see the lower portion of the drift. Mendota Mayor Brian Meilke thanked everyone for the careful consideration they have put into the project. He provided a photograph of winter conditions of the bluff area for the adjacent residents in Mendota, explaining that it is very steep. He stated that water can come from a hose into the bluff to water lawns. He stated that in July he requested a copy of the DNR report and did not receive it. He commented that he followed up in July and August without response from staff. He stated that on September 30th he received the “DNR approval” which is a one sentence statement that says the DNR reviewed the plans and appears to be consistent with the City’s current ordinance. He noted that there is no specification on any potential impacts or concerns. He stated that he spoke to a member of the DNR on September 30th and explained the City of Mendota’s concern and the potential impact to neighboring property owners. He stated that the DNR stated that when they received the application, they were short staffed and is why the one sentence reply was given. He noted that he was told a more in-depth review would occur. He reviewed the most recent correspondence from the DNR and their position on the original comments of the DNR, which was not meant to act as a statement of support. He read the language related regulations from the DNR which would prevent this development plan. He stated that under the new rules this proposed development would look much different. He stated that the City is now aware that this is an unbuildable site and is still considering the request. He stated that the two cities have experiences with bluff failure within the critical area. He stated that it is prudent and essential to public safety that the City consider the new standards rather than its outdated standards. Commissioner Petschel asked if CR 13 has been shut down at all in the past ten years because of landslides. APPROVED 10/27/2020 October 8, 2020 Mendota Heights Planning Commission Meeting Page 8 of 10 Mayor Melke replied that the road has not been shut down for that purpose within the past ten years. He stated that the springs in the winter conditions cause very slippery ice patches. Commissioner Petschel referenced that the fatal landslide incident occurred in Lilydale. Chair Magnuson reviewed Minnesota State Rule related to changing of DNR regulations and that cities must continue to follow its ordinances as in place until the update occurs. Mayor Melke stated that the Commission now has the knowledge that this area is considered unbuildable and should use that knowledge in making its decision. Commissioner Field asked if the Mendota ordinances have been updated. Mayor Melke was unsure. Commissioner Mazzitello stated that he was on the Mendota Heights staff for eight years and is very familiar with the critical area regulations and explained that the DNR has review authority and it is up to the cities as to whether to approve critical area permits. Steve Golias, Mendota resident and Deputy Mayor, stated that at the last meeting he was told that the pond would be City owned but at this meeting there appears to be ambiguity. He stated that he would want clarification on the ownership and maintenance. He also expressed concern that the water would connect to the MnDOT system across Victoria Curve. He stated that MnDOT has done nothing with that holding pond since about 1993. He stated that they are relying on a system which utilizes another entity’s system that is not maintained. He stated that every single one of the property owners adjacent to this project are on well water. He stated that those residents are concerned with what could happen to the hydrology of the area as disturbances are made to the slopes. He stated that he completed more research on Dodd Road and provided a brief summary. Dave Olson, Culligan Lane resident, commented that when a home was constructed uphill of him and there was a large rain event, they ended up with a gulley. He stated that there was a landslide on CR 13 that closed the roadway for a period of time due to tree removal. He stated that this is a steep and critical area and asked the City to use caution. Alan Olstein, 1954 Glenhill Road, spoke against the proposal and requested variances. He referenced the instability of the area and noted the risk that the taxpayers and City would be assuming in allowing the project to go forward. He urged the Commission to deny the variances. Kay Jewel, 1948 Glenhill Road, stated that tonight they listened to opinions from dueling experts along with input from residents related to existing problems and changing regulations. She stated that when there is this level of disagreement on the topic it makes it clear that there are big issues that have to be considered. She stated that it is known that there are problems with water in Mendota and known landslides, therefore she would feel that this project would have significant risk and did not want to see the taxpayers of Mendota Heights supporting this request. She stated that the Culligans are wonderful neighbors and have developed areas in a responsible way. She APPROVED 10/27/2020 October 8, 2020 Mendota Heights Planning Commission Meeting Page 9 of 10 asked if there would be a solution that would allow the Culligans to sell the property and allow the area to remain undisturbed. Ms. Culligan stated that they heard the concerns from Mendota at the last meeting and again tonight, noting that they do not take this lightly and have brought in experts that can recommend a method to develop this in a responsible manner. She stated that this would reduce the water flow. She commented that they cannot anticipate changing regulations and have worked within the City ordinance. She stated that they have tried to address concerns and provide a significant amount of information. She stated that her family has lived on the property for over 100 years, in this bowl, and provided information from other developments that have been built on the bluff and/or within the critical area. She stated that she is speaking of her specific property and not bluff areas in general. She stated that the conservation easement would be preserved to protect the slope. She stated that they appreciated the input of Mr. Barr, but Braun has assumed there was underlying water the whole time as they want to be on the conservative side to ensure that their development would hold up. She stated that they have attempted to address the previous comments and build them into their design. Seeing no one further coming forward wishing to speak, Chair Magnuson asked for a motion to close the public hearing. COMMISSIONER MAZZITELLO MOVED, SECONDED BY COMMISSIONER TOTH, TO CLOSE THE PUBLIC HEARING. AYES: 7 NAYS: 0 COMMISSIONER CORBETT MOVED, SECONDED BY COMMISSIONER MAZZITELLO, TO RECOMMEND DENIAL OF THE PRELIMINARY PLAT OF VALLEY VIEW OAK 3RD ADDITION, ALONG WITH A CRITICAL AREA PERMIT, A CONDITIONAL USE PERMIT AND VARIANCES FOR THE PROPERTY GENERALLY LOCATED NW QUADRANT OF VICTORIA CURVE AND GLENHILL ROAD BASED ON THE FOLLOWING FINDINGS OF FACT INCLUDING IN THE MEMORANDUM FROM THE CITY ATTORNEY DATED SEPTEMBER 8, 2020 THAT CONFIRM THE APPLICANT FAILED TO MEET THE BURDEN OF PROOF OR STANDARDS REQUIRED IN GRANTING OF THE VARIANCES AND OTHER APPLICATIONS REQUESTED HEREIN. FURTHER DISCUSSION: COMMISSIONER PETSCHEL REFERENCED THE FRONT YARD SETBACKS AND NOTED THAT OTHER PLACES CAN MEET THE REQUIREMENT AND THERE IS NO PRACTICAL DIFFICULTY. HE NOTED THAT THE STREET VARIANCE IS THE SAME AND DOES NOT MEET PRACTICAL DIFFICULTY. HE STATED THAT IF A PROVISION FOR REVIEW BY CITY PERSONNEL IS GOING TO BE ALLOWED FOR CONDITIONAL USE, THAT SHOULD BE DONE. AYES: 7 NAYS: 0 APPROVED 10/27/2020 October 8, 2020 Mendota Heights Planning Commission Meeting Page 10 of 10 Chair Magnuson advised the City Council would consider this application at its October 20, 2020 meeting. Adjournment COMMISSIONER MAZZITELLO MOVED, SECONDED BY COMMISSIONER FIELD, TO ADJOURN THE MEETING AT 9:16 P.M. AYES: 7 NAYS: 0