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16 PCSR 04-26-1994 � ) A- AGENDA ITEM 16 y of t tMEMORANDUM lkRi• ver TO: PLANNING COMMISSION FROM: GARY SCHMITZ, PLANNING ASSIST. DATE: APRIL 26, 1994 l� SUBJECT: CONDITIONAL USE PERMIT REQUEST BY BRIAN ANDERSON, PUBLIC HEARING, CASE NO. CU 94-09 REQUESTED ACTION Brian Anderson is requesting a conditional use permit to excavate an estimated 5,000 cubic yards of black dirt from a wetland to construct an open water pond for wildlife viewing. SITE ZONING/LAND USE • Al (Agricultural Conservation)/A (Agricultural) ATTACHMENTS Location Map, Zoning Map, Site Plan, Letter from Applicant, Property Owners List OVERVIEW Mr. Anderson is requesting a conditional use permit which would allow him to excavate approximately 5,000 cubic yards of black dirt from an existing wetland. The excavated black dirt will be kept on site and used to landscape Mr. Anderson's yard. Excavations within wetlands that encompass more than one property owner must go through the conditional use process. This will give surrounding property owners a chance to voice potential concerns about the changing composition of the identified wetland. Mr. Anderson has proposed to excavate 5,000 cubic yards of fill from a 50' x 140' low land area which is part of a drainage and utility easement. All of the excavated black dirt will remain on site and be used for landscaping purposes. I have attached a site plan which shows the location of the • proposed excavation area and the location of the fill area. The DNR, Army Corps of Engineers, and the Sherburne County Soil and Water Conservation P.O. Box 490 • 13065 Orono Parkway • Elk River, MN 55330 • (612) 441-7420 • Fax: (612) 441-7425 Anderson, CUP Page 2 April 26, 1994 • District were all notified of this proposal. At the time this memo was written, the DNR and the Soil & Water Conservation District have replied. Attached is a copy of their response for your review. No permits will be required from either the DNR or the Soil & Water Conservation District. I will update the Planning Commission regarding the response from the Army Corps of Engineers, if available, at Tuesday night's meeting. EROSION CONTROL It is important to avoid erosion by making sure all disturbed areas be planted with ground cover sufficient to contain the soil. Ground cover should be tended as necessary until it is self sustaining, thereby reducing the chance for excavated material to flow back into the wetland and degrade water quality. Silt fencing should be used along the wetland boundaries until the existing vegetation has a chance to take hold. DRAINAGE Terry Maurer, City Engineer, did not feel drainage would be a problem as long as the excavated material would not be placed in an area which could • disrupt existing drainage patterns. SLOPES According to Elk River City Code, slopes can not be any steeper than 4 feet horizontal to one foot vertical. For safety purposes, this is especially true of excavated ponds. The actual depth of the pond should not be greater than 4 to 5 feet to ensure that this pond will be safe in a residential area while providing beneficial wildlife habitat. The outer edge of the excavated pond should also be irregular, as this is enhancement for various types of wildlife. EXCAVATED MATERIAL All the excavated material will remain on site and be used for landscaping purposes near the home. The 1991 Wetland Conservation Act prohibits any of the excavated material to be placed back within the wetland boundaries, therefore, all excavated material must be removed from the wetland itself. RECOMMENDATION Staff is recommending approval of the request by Brian Anderson to excavate • approximately 5,000 cubic yards of black dirt from a wetland to enhance wildlife viewing with the following conditions: anderson.planning Anderson, CUP Page 3 April 26, 1994 • 1. NONE OF THE EXCAVATED MATERIAL IS PLACED BACK INTO THE WETLAND BOUNDARY. 2. FOR SAFETY PURPOSES DURING THE ENTIRE PERIOD OF THE PROJECT, ALL SLOPED AREAS SHALL HAVE A MAXIMUM RATIO OF 4 FEET HORIZONTAL TO 1 FOOT VERTICAL. 3. SLOPED AREAS SHALL BE PLANTED WITH GROUND COVER SUFFICIENT TO CONTAIN THE SOIL. SUCH GROUND COVER SHALL BE TENDED AS NECESSARY UNTIL IT IS SELF SUSTAINING. SILT FENCING IS REQUIRED UNTIL THE GROUND COVER IS SELF SUSTAINING. 4. FOR SAFETY PURPOSES, THE POND SHALL BE NO DEEPER THAN 4 TO 5 FEET IN DEPTH. 5. ANY EXCAVATION OR FILLING SHALL NOT DISRUPT THE OVERALL DRAINAGE PATTERNS FOR THIS AREA. • 6. CONTRACTOR AND PROPERTY OWNER WORK WITH THE DNR TO CONSTRUCT A POND THAT IS BENEFICIAL TO WILDLIFE. 7. APPROVAL OF THIS RECOMMENDATION BE CONTINGENT UPON APPROVAL BY THE ARMY CORPS OF ENGINEERS. 8. THE PROJECT BE COMPLETED IN ONE CONSTRUCTION SEASON. 9. THE HOURS OF OPERATION BE AS PER CITY CODE. • anderson.planning 1.______,_______ _ ____. Iv 004-t /I rr___ii_ ....-.- I..Cit. --It, AI — . , 1 -� — ---7.. 846 03 - — — T > �� -- J' �y v, 33n 26 t421307 - (J =�.. — South line of the SE "i/4 of the SE 1 /4 of Sec 8, T�0 9 —•,,,‘ ,� / NI N --- 589 23 5/ W tt / ./4 ^'� �r Rn 6 26 ' k;w w — North Ione of the East ! i2 of the NE i/4 of Sec � 7. TwP 33. 9 X21289 i i 6 27 76 wit - N88°03'48""W /O/06 5/ :::r*21275411:4 94363 N4 I f_,\ / % fit T �, d;�, r''`--.1---- -:--...."---(-4-''' .��^, ?.) p r\) f \+\ \ p �► _T2 z 4' - %a5 t-*. /`/` « (.Qan-J I R � r r10 21257 ; .. __ / ° F= ' 'k X/ r ,./. e't k / le)k) 1 212 41 '45 :4 i , �_ • `0 504 raj N' ti • / a 8tioo '� or) 66 . .„..._ • . 21229 ... ‘,. .....t,�'°� �� "3 ' 3884 Q � / p,�� ` ou X07 '..�' .. `' •.� ? n, 1(5 , .13 '"a =` „„:2...56,r ' A4,, yacfi,q M t #„,,,...„4,. .... ... • . ;{/,.. .„.:.,„,, I *rt k22 " 73�. rE, . 7T t " � _{ -�� .2:[1si .,t.s�s -i _ ,• i{lE . _'h:~ ,t•••',4;:-.--41-.4. '- tAt. > 1,.is1i .e. • t?*"..., . •5� a- • ='t .5'' •:a,.fii:'/x -- ..,It.. t .c: $ s*' s.�I+ ,:� : �-; x�' �L + - � • • March 2nd, 1994 Department of the Army, Corps of Engineers St . Paul District -- ATTN: CO-R 190 Fifth Street East St. Paul , Mn . 55101-1638 The land on which the excavated pond will be located on is the edge of a large ( 30 - 50 acres ) area of lowland. A drainage ditch runs through the lowland and serves as a boundary or property boarder for adjoining landowners . The east side of the property boarders the drainage ditch. The property consists of 5 acres of land with the front 1 .5 - 2 acres made up of a hill . The hill is covered with oak trees and our home is located in the center of it . The construction of this wildlife pond should serve several purposes. The hill , on which the house is built , is in need of fill to complete the lanscaping plans for the property. The landscaping planned however would not be complete without the beauty that the wildlife pond would add. The pond itself would add habitate for wildlife. 411 Our plan is to construct this pond on the property were the slope from the hill , which the house is on, meets the wetland. The advantage to this location is to minimize the cost of constructing the pond, keep the pond close for viewing , and at the same time can be easily accomplished without filling or damaging any wetland. The area behind the planned pond, which I have been reffering to as wetland, is made up of numerous small trees , bushes , and small areas of canary grass . Wether or not it is in fact considered wetland is unknown . All spoil will be either moved to other areas on the hill for leveling the yard, or spread on the area between the oak treeline and the pond. Only the front side ( toward the house ) of the pond would be lanscaped and non of the spoil would be spread on the back side of the pond. The pond will be constructed following guidelines outlined by the DNR for Excavated Ponds for Waterfowl . It will have an irregular shoreline and a maximum depth of 5 feet. Sincerely, Brian K. Anderson • 40 10 • 410 • • • LIST OF PROPERTY OWNERS WITHIN 350 FEET • March 3rd . 1994 • • • Brian K. Anderson 21265 Concord St . N.W. Elk River. Mn. 55330 ( LOT 5 Block 1 Greenhead 1st Addition ) • • • • Floyd Elliot 21229 Concord St . N.W. Elk River. Mn. 55330 • Doug Lowe 21218 Concord St . N.W. Elk River, Mn. 55330 • Steve Murschell 21338 Concord St . N.W. Elk River, Mn. 55330 • • Gene Andersen 21297 Concord St . N.W. Elk River. Mn. 55330 • Buzz Erickson 21321 Concord St . N.W. Elk River. Mn. 55330 • Jerry Heurina 21431 Concord St . N.W. Elk River. Mn. 55330 • • • Robert Koski 21461 Concord St . N.W. Elk River. Mn. 55330 • David Mergenthal 21268 York Ave N.W. Elk River, Mn . 55330 • Dennis Lau 21212 York St . N.W. Elk River. Mn. 55330 • • Peter Flodquist 21304 York St . N.W. Elk River. Mn. 55330 • Edwin Leary 21172 York St . N.W. Elk River. Mn. 55330 • Tomas Marciniak 12831 Ranch Rd. N.W. Elk River. Mn. 55330 • • • • • • • • • • • • • • • • • MEMORANDUM TO: The Planning Commission FROM: Bob Minton DATE: April 23, 1994 RE: The American Planning Association conference in San Francisco The conference was extremely large, with 4171 registrants from the United States, Canada and 10 other countries. The foreign countries were mostly English speaking countries, but it did include Italy. Australia had a delegation of 10 at the meeting. Locally, there were representations from St. Paul, Minneapolis, The Metropolitan Council, Plymouth, Maple Grove, New Brighton, Chaska, Bloomington, Duluth, Mankato and probably many others that I did not have a chance to meet. St. Cloud sent 6 to the conference, 2 from the City Council, 2 from the Planning Commission and 2 from staff. On the first three days, the schedule included a series of workshops designed especially for planning commissioners. Although a few staff attended these workshops, most participants were fellow commissioners, and it was equivalent to three days of excellent • training and discussion. The workshops covered many of the basics, such as the purpose, history, role and duties of planning commissions, and dealt with many of the issues we have been wrestling with. Here are some tidbits. 1. Conflict of Interest In some states, making a decision with a conflict of interest is by legislation a crime, usually a misdemeanor, but in Texas it is a "third degree felony." Even if it is not a crime, and undisclosed and undeclared conflict of interest can cause a decision to be legally challenged and overturned. In most places, the procedure is not only to abstain and vacate the seat, but also to leave the room. If a commissioner needs to speak to the issue, it is to be another person or an attorney. On the other hand, in Anchorage, Alaska, if a commissioner declares a conflict, the law requires the other commissioners to take a vote to affirm that it is really a conflict, to make sure that the commissioner is not trying to abdicate his or her responsibility in making a decision. 2. Ex Parte Contacts. This is the legal term for all contacts outside of the official meeting regarding an application. There are a handful of states where all ex parte contacts are strictly prohibited by law, period. In most states it is not prohibited, but all contacts must be disclosed, and if they are not, it could be a basis for legally challenging a decision. When • interested parties contact a commissioner, it is extremely important not to express any • opinions, either verbally or non-verbally, encourage the person to come to the meeting where everyone can hear the some comments, and then to disclose the contact. 3. Swearing In. Some states require that an oath be administered to everyone who testifies at a public hearing, and the oath can be administered to an entire group at one time. Even where it is not required, some places swear in witnesses to lend more seriousness to the proceedings. 4. Tabling Decisions In a recent Oregon case, an applicant sued the city because to Planning Commission tabled action on an application in order to get more information. The judge agreed that the tabling action was not to obtain information, but was simply a means of deferring the decision. The applicant lost a year in construction time, and was awarded $30,000 plus attorney's fees. 5. Avoiding Lawsuits Much of the discussion centered around the increasing proliferation of law suits. The attached check lists from You Be The Judge was presented by the two authors, as a guide • line for avoiding suits because of procedure. 6. Zoning and Subdivisions In a few states, a referendum by the voters is required for a change in zoning. In many other states, the Planning Commission makes the final decisions on subdivision applications, and only appeals go to the City Council. The theory behind this is that zoning is an amendment of a city ordinance, but subdivision decisions are simply the implementation of already established ordinances. 7. Pay A few cities pay the planning commissioners a per diem stipend for each meeting. A lady sitting next to me from Utah received a per diem of$35 per meeting. This practice is relatively rare. 8. Training In Virginia In Virginia, the County Extension Department of Virginia Polytechnic Institute and State University offers a program to train planning commissioners. The course consists of 13 hours of course work, an intervening period for reading, homework and learning experiences, and then an additional 12 hours in the classroom. Upon completion of the 10 • week program, the commissioner is "certified." More than 600 commissioners from Virginia and the surrounding states have completed the course. • 9. Training Videos. A few mock meetings were staged as learning experiences, and I was able to participate in one of them. A final one was videotaped, and will be available from APA. It would be a good training tool for one of our workshops. It shows many of the things that could go wrong at a meeting. In addition to the planning commissioner workshops, I went to presentations on regional governments, transportation and street design. The next conference will be in Toronto, Ontario from April 8 - 12, 1995. • • .. • Excerpts from "You Be the Judge", a handbook for the land use decision maker. The complete handbook is available by mailing $10.00 per book to: • Driscoll & Hunter 101 Yesler Way, Suite 607 Seattle, WA 98104. 0 • • Fairness Checklist A decision maker must answer the first five questions "yes" and the second five questions "no" to participate fairly in a quasi-judicial proceeding. ❑ If ex parte contacts have occurred, have they been revealed at the public hearing? ❑ Has an opportunity been give to object to city council participation in the hearing because of ex parte contact? ❑ Does the decision maker have a reasonable impartial attitude toward the request? ❑ Is the decision maker free from any direct financial benefit that could result from the approval or denial of the request? ❑ Is the decision maker free from any indirect financial • benefit that could result from the approval or denial of the request? *** C Does the decision maker have any personal interest in which he or she stands to gain or lose by the decision? ❑ Will there be any prospective employment for the decision maker or his/her family as a result of the decision? ❑ Is there any business competition between the decision maker and any of the parties at the hearing? O Are there any family relationships between the decision maker and any of the parties at the hearing? O Has the decision maker made a final decision on the request before hearing any testimony or evidence? i Driscoll & Hunter 101 Yesler Way, Suite 607 Seattle, WA 98104 • Notice Checklist • Review the applicable state statutes and local ordinances for specific notice requirements. Legal requirements vary depending on the type of application. Posting, mailing, and publication may all be required or there may be other notice requirements. Strict compliance with ordinances and statutes is required ❑ Has Notice been given to all required property owners? ❑ Was the Notice published? • ❑ Was the property posted with the Notice? ❑ Did the Notice identify the land? I Did the Notice state the requested land use action? ❑ Did the Notice set forth the correct hearing date and time? ❑ Did the Notice set forth the location of the hearing? ❑ Has the city staff filed an optional Certification of Public Notice? ❑ If Notice was not given consistent with the local ordinance or state law, has the hearing been rescheduled? Driscoll & Hunter 101 Yesler Way, Suite 607 Seattle, WA 98104 The Hearing Checklist If all questions on this checklist can be answered with a "yes, " the hearing element of procedural due process will be satisfied. ❑ Have the microphones and tape recording machines been set up properly and do they work? - Has a presiding officer described the Rules of Procedure to be followed? - Has the audience been advised of the rules of behavior? I Ask if everyone present understands the rules of behavior. • - Has the audience been advised that testimony is to be given at the podium and into a microphone? - Has the order of presentation been announced? - Have all witnesses identified themselves on the record? I Have all witnesses been sworn under oath (group or individual)? ❑ Have all exhibits been identified for the record? I Is the testimony focused on the request: Is it relevant? ❑ Have all those who desire to testify been given an opportunity to be heard? ❑ If the hearing is to be continued, has a definite time, date, and location of the hearing been i announced? Driscoll & Hunter 101 Yesler Way, Suite 607 Seattle, WA 98104 The Record Checklist All questions which follow must be answered "yes" to satisfy the record requirements of procedural due process. El Are all tape recording machines working? ❑ Are microphones in working order and turned on? Has the city submitted all of the exhibits relevant to the hearing? - Has all testimony been given either orally or in • written form (no shaking of heads, shrugs, etc.)? ❑ Have all witnesses identified themselves? ❑ Have all exhibits been identified by letter or number in a sequential order? ❑ Have all witnesses referred to the exhibit number rather than "this thing" or that"? ❑ Is the decision maker satisfied with the content of the record so that a decision can be made based solely on a review of the record? • Driscoll & Hunter 101 Yesler Way, Suite 607 Seattle, WA 98104 The Decision Checklist All questions must be answered with a clear "yes" to satisfy this element of procedural due process. 11 Is the decision based on the record? ❑ Are there Findings of Fact to support a decision? Have the criteria of the ordinance been reviewed? • Do the conclusions refer to the facts that satisfy (or fail to satisfy) the criteria? • = If a decision of denial, has a reason been given based on the criteria? If a decision of approval, are all criteria satisfied? • If a decision of approval is conditioned, are the conditions of approval clear and understandable? ❑ Is the decision limited only to the request that has been properly noticed? • Driscoll & Hunter 101 Yesler Way, Suite 607 Seattle, WA 98104 0 YOU BE THE JUDGE.• A HANDBOOK FOR THE LAND USE DECISION MAKER by Jim Driscoll and Ted Hunter A valuable took for any land use decision maker, city/county councilmember, planning commissioner, board of adjustment. Please send me copies at $10.00 each (three or more copies at $9.00 each). Amount of order $ 0 Shipping & handling ($1.50 per book) $ Total amount enclosed $ Please send orders and make checks payable to: Driscoll & Hunter 101 Yesler Way, Suite 607 Seattle, WA 98104. To order by phone please call (206) 233-1908. • LOCATION LOCATION MAP CASs CU 94.09 ver P.O. Box 490.13065 Orono Parkway Is Elk River, MN 55330 - (612) 441-7420 of AprkWt Caa-n V.9i FvNq WFW-MW R ShaW Fe y Ra1UrpW 19 UU19W F.Wy MFkri1W %1Fm , RatlWgW EM Sh Fd, Ra River ZONING "MAP MI TMe ft,W, ® T F.Wft Ratla�Ual KI T�/MWIbN F=ft RakNnWl F14 %011 F.41 R.. e ® Mr W 0*.ftn1Mt KII C.im.l C� C2 0111es t)w+ic! 0 F C�i 17 U.m ywevm I��Z•• MAEb➢11 MW9Ute1 pn�1 Soca Wal® FrJty A . T. FM El Mldol E.lba CASE CU 94.09 P.O. Box 490 • 13065 Orono Parkway • Elk River, MN 55330 9 (612) 441-7420