Loading...
1994-11-07 Council minutes Werthauser BldgPage No. 4202 November 7, 1994 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY STATE OF MINNESOTA Minutes of the Special Meeting Held Monday, November 7, 1994 Pursuant to due call and notice thereof, a special meeting of the City Council, City of Mendota Heights, was held at 7:00 o'clock P.M. at City Hall, 1101 Victoria Curve, Mendota Heights, Minnesota. Mayor Mertensotto called the meeting to order at 7:00 o'clock P.M. The following members were present: Mayor Mertensotto, Councilmembers Huber, Koch and Smith. Councilmember Krebsbach had notified Council that she would be late. WERTHAUSER BUILDING Mayor Mertensotto called the meeting to order for the purpose of PERMIT building permit review for 1024 Sibley Memorial Highway (Art Werthauser property). Council acknowledged a memo from Public Works Director Danielson, along with a site drainage analysis prepared by City Engineering and a copy of a letter to Mr. Werthauser, dated October 26, 1994, directing that filling on the site be discontinued pending City Council review. The special meeting had been called in response to concerns over filling and drainage expressed by neighbors at the November 1 Council meeting. Mayor Mertensotto explained that a building permit has been issued to Mr. Werthauser to construct a home on property he has owned for several years and that at the November 1 Council meeting neighboring property owners had informed Council that Mr. Werthauser is changing the topography of the land, and therefore drainage. He stated that Mr. Werthauser was not at the November 1 meeting and due process requires that no action should be taken to suspend or revoke a permit unless the owner of the property is given an opportunity to be heard. Council therefore scheduled the special meeting. He observed that several neighbors are present. He asked Public Works Director Danielson to give a background on the matter. Public Works Director Danielson informed the audience that the Werthauser lot required a critical area review and during the critical area ordinance review conducted at the pre- application conference, it was determined by staff and the City Planner that the applicant could design his structure so that it could be constructed totally in conformance with the Critical Area Ordinance and thus follow the modified site plan review procedure as allowed by the ordinance. One of the aspects was that he had proposed an 8 foot high wall which is not in conformance with the ordinance. Mr. Werthauser Page No. 4203 November 7, 1994 reduced the wall to 5 feet so that he could go directly to Council. He decided that he would go to the Planning Commission to request a variance to allow a terraced second wall less than 20 feet from the first wall. During the Planning Commission hearing on the variance, one of the Commissioners asked Mr. Werthauser how many yards of fill were required and Mr. Werthauser responded that he needed 1200 cubic yards of fill. It was at that time that it was discovered that a conditional use permit should have been processed for filling. Subsequent to discussion, the Planning Commission recommended denial of the variance and Mr. Werthauser withdrew his variance application. Since the application was withdrawn, it did not come before Council on November 1, but it was discussed on November 1 that Mr. Werthauser should not be allowed to continue filling, or perhaps the building permit should be withdrawn, until such time as the Planning Commission had an opportunity to conduct a hearing on the conditional use permit for fill. He informed Council and the audience that since the November 1 meeting, city engineering has surveyed the property and prepared a drainage analysis. He then reviewed the grades and drainage pattern and informed Council and the audience that Mr. Werthauser proposes to redirect drainage around his house and down the easterly side. The drainage areas that affect the lot is mostly from the east - water from the two lots to the east are much higher. He stated that drainage from a low, flat area on the Moore site could be improved if a little filling can be done on the lot and if it can be drained to the street along the Werthauser lot line, or still better, if the Werthauser property could be cut down adjacent to the wall by five or six inches at the high point and then establish a uniform grade out towards Highway 13. He explained that the best method would be to do some cutting adjacent to the wall to provide a uniform grade out to the street - a gentle five or six inch swale which would handle all of the back yard drainage. Councilmember Smith asked if it would be possible to construct the swale with the retaining wall already up. Mr. Danielson responded that it can and that Mr. Werthauser has constructed a drain system behind the retaining wall and that drain system could be opened to the south and water would then have two courses of action. He informed Council that although drainage can be handled entirely on the Werthauser property, the ideal would be to also place a small amount of fill in the low flat area on the Moore property. Councilmember Smith stated that some concern has been expressed over what would occur if one of the drainage tracts became clogged. She asked how likely this would be and what the remedy would be. Page No. 4204 November 7, 1994 Mr. Danielson responded that things happen to clog drainage ways and drainage ways require maintenance. He stated that in this case the high point along the drainage Swale will be at such a level that water will never threaten the house. Councilmember Huber stated that there appears to be some pretty steep run off to the east. He was concerned that the impervious surface from the new house and the pool and the incline on the lot a five to six inch swale does not seem sufficient. Mr. Danielson responded that he anticipates that Mr. Werthauser will bring the majority of the runoff from his roof and driveway towards the east side of the driveway and out towards the street and that it should be a goal during construction not to bring water from the roof and driveway westerly. Mr. Danielson described the drainage district in response to a Council question. Responding to a Council question, Mr. Danielson stated that he has not had the soil analyzed but that Mr. Werthauser is an engineer and has been on -site daily. Mr. Werthauser stated that the soil in the area where the house will be located is excellent - very good sand, but towards the pool area the soil is more clay like but still very good material. He informed Council that the fill material he had brought onto the site is pure sand which should have good absorption. Mayor Mertensotto asked if the mound that was present during excavation still exists, to the north of the house. Mr. Werthauser responded that the footings were poured today and that the mound will be removed. Responding to a question from Councilmember Smith on driveway grade, Mr. Werthauser stated that the grade is way to steep now. He explained that the driveway area will be regraded to be flatter close to the garage and the final grade of the driveway will be less than 10% when finished. He explained that the driveway will be pulled over to the east, towards the bank. He stated that he would do what the city asks with respect to drainage. He stated that he has applied for a permit for a culvert at T.H. 13 from Mn/DOT and was informed that Mn/DOT will not start on the culvert until next year so that it would not be destroyed by heavy vehicles during construction. He stated that the size of the culvert has not been determined yet. Councilmember Krebsbach arrived at 7:40. Page No. 4205 November 7, 1 994 Mayor Mertensotto asked Mr. Hill about his statement at the November 1 meeting that there is a pond that is holding water and as a result there is water running under his basement. He asked where the pond is located. Mr. Hill responded that it is the pond in Mayfield Heights that is currently being worked on. Mayor Mertensotto informed the audience that Lilydale just signed a new contract and construction was to start soon to pick up the water on the south side of T.H. 13 with a diagonal crossing if Mn/DOT agrees, and then Lilydale will pickup the water on the other side as part of the WMO. He explained that the water will be taken care of and the Mathern townhouse project and existing apartment complex in Lilydale will participate in the project costs. He stated that the main concern is drainage before it gets to the pond. Mr. Hill stated that it is the drainage that soaks down from the pond and trickles underneath the ground that gets into his basement. He felt that if the pond were ever drained he would no longer have water problems. He stated that the problem is not caused by drainage and that he never had basement water problems before the pond was constructed, but was concerned that development of the Werthauser lot would increase the problems. Mr. Moore stated that he installed drain the in 1985 and has had no problem with basement water since. Mr. Hill stated that he also installed drain tile and there is always water running into it. Councilmember Krebsbach stated that there are issues regarding the city process, beyond the neighborhood concerns. Mayor Mertensotto responded that independent of the process, the basis for this evening's meeting is to consider the Werthauser building permit. Mr. Jim Taurinskas, legal counsel representing the Hills and Moores, stated that basically the crest of the hill where their two homes were built has not ever been disturbed or changed in any way even though the Shiely Company owned the Werthauser lot at that time. The only change to the three lots was towards the back quarter of the lots where Shiely removed some fill. He informed Council that it is his clients' position that they have not had a chance to present their case to the city allowing for the substantial change because they have not had an opportunity to be heard on the major filling (2200 yards). He stated that development of the lot is not Page No. 4206 November 7, 1994 supported by the critical area ordinance and asked Council to withdraw the building permit since Mr. Werthauser continued filling at his own risk after being notified by the city to cease. Mayor Mertensotto asked Mr. Taurinskas if it his opinion that the lot is not buildable. Mr. Taurinskas responded that this is not his position. He showed photos of the site before the filling began. Mr. Hill stated that the previous owner, Joe Shiely, and other people have said that the lot is not buildable. Mayor Mertensotto stated that there is also a lot line dispute and the city cannot be involved in that private matter. He asked that the property owners resolve the matter between them and stated that Council can only address the amount of fill that has been put on the lot and what changes have been made. Mr. Werthauser and Jim Hanson, his legal counsel, were present. Mr. Werthauser reviewed a drawing, pointing out where the excavation had occurred in the past. He reviewed the original contours and informed Council and the audience that the home is only 2,600 square feet on the 43,000 square foot lot. He stated that there is much green area and that all the trees which have been removed were either dead elms or scrub trees such as boxelders. He further stated that he hopes that he and Mr. Landreville can remove many dead elms between their two lots this winter. He challenged anyone to come to his lot - he has dug nine foot footings and there is no ground water coming through. He stated that he cannot speak for the Moores or Hills but he has no ground water coming in - the sand soil he has brought in will absorb most of the water that runs off naturally. He explained that no matter what house would be constructed on the lot, given the 18 foot drop between the 840 and 822 contours, so when one is dealing with this type of drop, he has lowered the garage by 3.5 feet since the last meeting and the land will slope gently towards the garage. He reviewed the site plan, stating that there will be shrubs between the retaining wall and garage and the driveway has been moved east to lessen the effect of the fill. He explained that the house has been brought down three feet and everything has been lowered. He stated that he does not know what else he could do and the only other option would be a three story house, which the neighbors would probably not want to look at, and which he does not want because of the stairs. He felt that the rambler fits in much better with the neighboring homes. Mr. Werthauser stated that when he was at the Planning Commission meeting someone asked him how much fill came in and he guessed at that time. He informed Council that the accurate Page No. 4207 November 7, 1994 figure is 1900 yards of loose fill and 200 yards that was removed from the driveway area to be spread over the area, for a net of 1700 yards of loose fill which amounts to about 1300 yards compacted. He explained that when engineers talk about filling it is always compacted in place. Mr. Werthauser stated that he has owned the lot for several years and that it has an excellent view and is a beautiful lot. He stated that he intends to work with the city on drainage and will do whatever the city directs. He informed Council that if he needs to get on the Moore property he will need a right -of -entry from them, and stated that he would be happy to fill in the low area so that it drains properly. He explained the drainage pattern and stated that he has not changed contours which affect drainage, and stated that regardless of what home were built on the lot, the drainage would have to move around it. He stated that drainage will go along the retaining wall instead of across his property as before. He described his landscaping plan, including the planting of several 10 -15 foot tall trees. He informed Council that at the time he prepared his site plan he was not asked how much fill would be brought in and he did not recognize that 400 yards was the maximum. He stated that he has complied with the building permit and has not done anything that changed the condition of his construction from the day he was granted the building permit. He further stated that after the Planning Commission he was told he needed a conditional use permit so the city could direct him on proper drainage. He informed Council that he is willing to do whatever the city asks of him with respect to drainage. He stated that he knows 1300 cubic yards compacted sounds like a lot of fill but it is not that much for a lot that changes 18 feet in grade and you have to correct it in order to build a house on it. Mr. Hanson stated that he understands that the house is placed right in the natural cut out on the lot and the neighbors were to have ground water flooding it would be coming from the Landrevilles because of the 18 foot drop in grade, so basically Mr. Werthauser is correcting the problem by putting in the house and moving the drainage in front of the house. Responding to comments from Mr. & Mrs. Moore, Mr. Werthauser stated that he would be happy to fill the low area on their property as identified on the city's drainage analysis but he would need a right - of -entry permit from the Moores, or else he can direct the water from the low area to his lot and reroute it to his drainage system. Mr. Hanson stated that Mr. Werthauser wants to be sure every effort is taken to address concerns and is willing to work with Planning Commission and Council in whatever fashion he is directed. He Page No. 4208 November 7, 1994 explained that his associated, Mr. John Bannigan, is trying to deal with neighborhood issues through Mr. Taurinskas and has been in contact with the city attorney. He informed Council that the Werthausers have already spent $40,000 on the project and to stop the project at this stage of the year would be inappropriate. He explained that there has been effort to establish a dialogue with the neighbors, that all conditions of the building permit have bee complied with and that Mr. Werthauser is taking every effort possible to comply with city requests. He asked that the Council allow the building permit to continue and allow construction to continue and stated that the Planning Commission will be dealing with the storm water drainage plan and landscaping in a few weeks. He felt that everything is under control as much as it can be at this time. Mr. Brian Birch stated that he was contacted by the Moores to look at the proposed building project and felt that the issue could be resolved simply by the Moores granting Mr. Werthauser the right to fill the low area on their property. He felt that landscaping would beautify and enhance both properties and that the Werthauser home would be a wonderful asset to the neighborhood and the drainage would be corrected. 5 Mayor Mertensotto pointed out that there are two problems, surface water and underground water, and the city cannot do anything about the underground water - the source of water in Mr. Hill's basement is a separate, groundwater, issue. He asked Mr. Hill how he would react if he grants permission for Mr. Werthauser to enter onto his property to fill the low area and the water runs off and Mr. Hill still has water in his basement. Mr. Hill stated that his concern is that the low area get filled so water does not soak down. Ms. Vivian Bernick, stated that she resides at Lexington and T.H. 13 and owns property in Copperfield and encouraged her parents to build in the city. She stated that in other neighborhoods everyone seems to work together. Judy Werthauser stated that she has been a resident for 8 years and plans on staying in Mendota Heights and in general, in watching and attending the Planning Commission meetings, she feels the Commission owes her parents an apology for the way they were treated. She stated that Council appoints the Planning Commission and should appoint people who are good at listening and respectful. Page No. 4209 November 7, 1994 Councihmember Krebsbach responded that the work of the Planning Commission is a painstaking job for which they receive no compensation. She stated that the Commission members conduct their meetings for as long as is needed to review each case as thoroughly as possible, so it could seem that someone may not be being treated appropriately because of the size and length of the agenda. Councilmember Krebsbach stated that her interest in holding the special meeting was to address the issues and if the permit is not revoked it has an endorsement and is clean without any issues remaining. She stated that she wants to know what the process is and this is why she felt the Planning Commission should be invited to attend the meeting. Mayor Mertensotto stated that Council must follow due process and that he has not heard any suggestion that the Werthausers were at fault for receiving the permit. He stated that things that come on the Council agenda are placed there because of certain criteria and in his investigation he determined that this matter was handled no differently from any other request for critical area site plan review. He stated that if there is a desire on the part of Council to change the procedure it will have to be addressed, but that it is a separate matter and the Werthausers cannot be faulted. He stated that staff acted correctly in taking the critical area application directly to Council and if Council decides it wants to change the procedure, ordinance revisions will be required. Planning Commissioner Friel, present for the discussion, stated that he cannot speak for the Commission, but as a member of the Commission would speak for myself. He stated that the critical issue is the conditional use permit, and the hearing this evening and the concerns that are being expressed would have come out had the conditional use permit for filling been applied for and as it should have been applied for. He noted that while some have tried to lay blame for that at the feet of the staff and Council, the responsibility for following the law lies with the applicant as well. He expressed concern in listening this evening that the application for the permit is viewed as something that has to be gotten over with and the applicants do not look forward to coming to the Planning Commission. He felt that the applicants are presuming that the permit will be approved but cautioned that they should not proceed with any additional filling without a conditional use permit. Mayor Mertensotto stated that Council tries to avoid engineering things at the council table and should deal with facts rather than to generate them. He stated that he hopes that at the time the Werthausers appear before the Planning Commission, city staff will Page No. 4210 November 7, 1994 have reviewed the situation and come up with specific recommendations on what needs to be done in order to solve the drainage problems. He pointed out that Mr. Werthauser has said he is willing to do whatever the engineering department recommends. Mr. Werthauser responded to questions from Planning Commissioner Joe Betlej regarding current drainage patterns and drainage prior to the filling which has occurred. Mayor Mertensotto the neighbors' legal counsel if their clients could get together with the Werthausers to address the problems and try to arrive at a solution. He stated that, as far as the Hill's water problem there is no guarantee that the problem of underground water can be made resolved but perhaps the low spot at the back of the lot could be filled so water does not stand in it. Mr. Hill responded that there was never standing there before - the water ran to the center of the lot and out. Mayor Mertensotto stated that the drainage problem is not insurmountable - it has been fairly well demonstrated tonight that there is a viable solution to the problem to the satisfaction of both parties and there may be other benefits, or resolution of other problems including the boundary line problem Councilmember Smith pointed out that there is certainly a great concern over a lot of the run off being deflected around the back of the house and down the slope. She asked Mr. Werthauser if there will be a be a drainage pipe at the top of the retaining wall Mr. Werthauser responded that there will be a pipe at the bottom of the wall. Councilmember Krebsbach expressed concern about the level of activity on the lot since the Werthausers received the city's October 26 letter. She stated that the conditional use permit has been referred to the Planning Commission and the Werthausers have a moratorium on activity on their lot until the Commission hearing. Mr. Hanson responded that the issues concerning water drainage, which will be most effectively dealt with by the Planning Commission, can certainly be kept in abeyance until the Planning Commission makes a recommendation, but his concern is that if Mr. Werthauser stops construction activity, such as pouring footings, at this time of the year, it will create a very significant problem. Page No. 4211 November 7, 1994 Responding to a comment from Councilmember Krebsbach, Mr. Werthauser stated that although block walls can be constructed in December, his home will have poured concrete walls and concrete cannot be poured during freezing weather. Mr. Hanson stated that Mr. & Mrs. Werthauser will obviously consult with his office as to what is the most appropriate legal stance for them to insure their best position over the next couple of weeks. He stated that Council is looking for a good faith effort and when he meets with the Werthausers this is certainly something they will be working on. Mayor Mertensotto asked City Attorney Hart for his comments. Attorney Hart responded that he thinks everyone is clear that a conditional use permit should have been applied for contemporaneous with the building permit but if one looks at the ordinance relating to land reclamation there are a number of items which need to be looked at by the Planning Commission and Council in evaluating the application. He explained that it really boils down to whether or not there is an adverse impact upon the adjacent land through the excess fill and Council is zeroing in on the drainage issues tonight. He exhorted the parties in interest to get together to work those issues out and stated that the legal issue for the city is to try to prevent harm to the Hills and the Moores through the development of the Werthauser property. Mayor Mertensotto asked Administrator Lawell if there was a breakdown in the process or if the normal procedure had been followed in the Werthauser matter. Administrator Lawell responded that this has been consistent with any other type of application that has come before the city for modified critical area review. He explained that there was a mistake made in not catching the amount of grading and that is what the city is trying to correct at this point, but any other application that would have come to the city without the fill issue would have been processed in the same fashion. He informed Council that the Planning Commission will be working on changes in the process over the coming months and the target is to have changes in place no later than February 1, 1995 in preparation for the spring construction season and any other development that would go on in the critical area. Councilmember Krebsbach asked what kind of activity can Werthauser move forward with without a conditional use permit. Page No. 4212 November 7, 1994 Administrator Lawell responded that the building permit is still in effect and valid so basically anything that was on the set of building plans is appropriate to proceed with. He stated that perhaps Mr. Hanson, in consultation with the Werthausers, could agree to do something less than that, perhaps doing the things that are temperature critical and putting off other things. Councilmember Krebsbach stated that her goal was to get the city process line. Administrator Lawell responded that there are two issues. Getting the process in line is a modification to the critical area ordinance that is going to be considered in the coming months. In terms of the process for this particular permit, unless directed otherwise by Council Mr. Werthauser is free to continue with the building construction as it was laid out in the plan that was before the city and was approved by the city. If Council wishes to impose conditions on that construction, that should be specifically mentioned and hopefully agreed to by the Werthausers. Mayor Mertensotto stated that it would be difficult to place conditions on the construction because Council is not privy to the contract between the Werthausers and their contractor. He pointed out that as far as the conditional use permit is concerned, they have indicated that there will be no further fill brought in and no further dirt moving will occur until a drainage plan is established for the lot, which will be presented at the time of the Planning Commission hearing. ADJOURN There being no further business to come before the Council, Councilmember Krebsbach moved that the meeting be adjourned. Councilmember Koch seconded the motion. Ayes: 4 Nays: 0 TIME OF ADJOURNMENT: 9:05 o'clock P.M. Kathleen M. Swanson City Clerk ATTEST: Charles E. Mertensotto Mayor