12-03-01 PC"401"WtST ASSOCM*Tt4 cO"sukTANTS" INC,
5775 Wayzata Boulevard, Suite 555, St. Louis Park, MN 55416
Telephone: 952.595.9636 Facsimile: 952.595.9837 planners@nacplanning.com
PLANNING REPORT
TO: Otsego Mayor and City Council
Otsego Planning Commission
FROM: Daniel Licht
RE: Otsego - Winterfield CUPNariance
REPORT DATE: 28 November 2001 APPLICATION DATE: 13 November 2001
NAC FILE: 176.02 - 01.34 CITY FILE: 2001 - 32
BACKGROUND
Mr. Tad Winterfield has purchased a 48,000 square foot lot (PID#118-500-151202) along
the west side of CSAH 42 north of 96t' Street. The Comprehensive Plan guides the
property for Low Density Residential uses and is it zoned R-3, Residential Long Range
Urban Service Area. The property is also within the Mississippi Wild, Scenic and
Recreation River District. The property is within the FF, Flood Fringe District, which
overlays areas of the 100 -year floodplain designated on the Flood Boundary, Floodway,
Flood Insurance Rate Map and Flood Insurance Study for the City of Otsego.
Mr. Winterfield is proposing to construct a single family dwelling on the property.
Construction of residential uses within the FF District requires consideration of a
conditional use permit subject to the criteria established in Section 20-94-7.0 and 20-94-
13 of the Zoning Ordinance. Consideration of a variance from these criteria is necessary
as the subject site does not have vehicular access that is not more than two feet below the
Regulatory Flood Protection Elevation as required by Section 20-94-7.C.4 of the Zoning
Ordinance.
Exhibits:
A. Site Location
B. Site Plan
Page I of 9
ANALYSIS
Underlying Zoning. The zoning underlying the FF District is R-3 District and Subdistrict
C of the WS Overlay District. Single family uses are a permitted use within these districts.
Parcels within these Districts are subject to the following lot standards:
The area of the subject site is only 45 percent of the minimum lot area requirement
imposed by the WS District. Section 20-15-2.A.4 requires consideration of a conditional
use permit for construction of a single family dwelling on existing non -conforming parcels
that have less than 75 percent of the required area. All other lot requirements, including
setbacks are satisfied.
Floodplain. Residential uses within the FF District are a conditional use subject to
specific performance standards outlined in Section 20-94-7.0 and criteria in Section 20-94-
13 of the Zoning Ordinance. According to the Flood Insurance Rate Map, the 100 -year
flood elevation for this area is 866.2 feet. The site plan identifies that the majority of the
property is currently below this elevation, including the proposed building site.
The Army Corps of Engineers constructed a dike along the shoreline of the Mississippi
River, which encroaches onto the western portion of the property. The top of the dike rises
to an elevation of 870.7 feet. Construction of the dike does not remove the property from
the floodplain. In fact, the area is still subject to seasonal flooding. The area has flooded
four out of the last five years according to Public Works staff, requiring the City to pump
water in order to maintain access and protect existing dwellings.
Elevation. Section 20-94-7-B.1.a of the Zoning Ordinance requires construction of
residential uses be on fill such that the lowest floor elevation is at or above the Regulatory
Flood Elevation and that the area within 15 feet of the structure be not more than one foot
below said elevation. The applicant is proposing to fill the site such that the top of the
dwelling slab is 2.3 feet above the Regulatory Flood Elevation at an elevation of 868.5.
Any fill placed on the site is subject to approval of the City Engineer and DNR and will
require an application for a flood map amendment.
Raising the elevation of the building site may only be allowed if the fill does not obstruct
flood flows or displace flood waters increasing flood elevations on adjacent properties.
Increasing the flood elevations on adjacent properties may put additional life or property
at risk for flood damage. An analysis of the quantity of fill involved in raising the building
Pale 2 of 9
Lot
Area
Lot
Width
Maximum
Impervious
Surface
Setbacks
Front
I Side
Rear
I OHWM
I Bluffline
Required
2.5ac.
150ft.
25.0%
65ft.
30ft.
50ft.
100ft.
30ft.
Existing/
1.1 ac.
200ft.
6.6%
82ft.
30ft.
104ft.
104ft.
57ft.
Proposed
The area of the subject site is only 45 percent of the minimum lot area requirement
imposed by the WS District. Section 20-15-2.A.4 requires consideration of a conditional
use permit for construction of a single family dwelling on existing non -conforming parcels
that have less than 75 percent of the required area. All other lot requirements, including
setbacks are satisfied.
Floodplain. Residential uses within the FF District are a conditional use subject to
specific performance standards outlined in Section 20-94-7.0 and criteria in Section 20-94-
13 of the Zoning Ordinance. According to the Flood Insurance Rate Map, the 100 -year
flood elevation for this area is 866.2 feet. The site plan identifies that the majority of the
property is currently below this elevation, including the proposed building site.
The Army Corps of Engineers constructed a dike along the shoreline of the Mississippi
River, which encroaches onto the western portion of the property. The top of the dike rises
to an elevation of 870.7 feet. Construction of the dike does not remove the property from
the floodplain. In fact, the area is still subject to seasonal flooding. The area has flooded
four out of the last five years according to Public Works staff, requiring the City to pump
water in order to maintain access and protect existing dwellings.
Elevation. Section 20-94-7-B.1.a of the Zoning Ordinance requires construction of
residential uses be on fill such that the lowest floor elevation is at or above the Regulatory
Flood Elevation and that the area within 15 feet of the structure be not more than one foot
below said elevation. The applicant is proposing to fill the site such that the top of the
dwelling slab is 2.3 feet above the Regulatory Flood Elevation at an elevation of 868.5.
Any fill placed on the site is subject to approval of the City Engineer and DNR and will
require an application for a flood map amendment.
Raising the elevation of the building site may only be allowed if the fill does not obstruct
flood flows or displace flood waters increasing flood elevations on adjacent properties.
Increasing the flood elevations on adjacent properties may put additional life or property
at risk for flood damage. An analysis of the quantity of fill involved in raising the building
Pale 2 of 9
site and the displacement of floodwaters that may potentially increase flood flows and flood
elevations on adjacent properties should be done by the City Engineer.
Access. Section 20-94-7.C.4 of the Zoning Ordinance prohibits development of
residential uses on sites where vehicular access is more than two feet below the
Regulatory Flood Elevation. The site plan indicates that eastern portions of the proposed
driveway and CSAH 42 are more than two feet below the Regulatory Flood Elevation.
CSAH 42 is at an 861.12 to 861.85 elevation in front of the property, which is
approximately four feet below the Regulatory Flood Elevation. Construction of a residence
on this property would require granting a variance, which are subject to the criteria outlined
in Section 20-6-2.13 of the Zoning Ordinance:
1. In considering all requests for a variance and in taking subsequent action, the
Planning Commission and City Council shall make a finding of fact that the
proposed action will not.-
a.
ot:
a. Impair an adequate supply of light and air to adjacent property.
b. Unreasonably increase congestion in the public street.
C. Have the effect of allowing any uses which are prohibited, permit a lesser
degree of flood protection than the flood protection elevation for the
particular area, or permit standard which are lower than those required by
State law.
d. Increase the danger of fire or endanger the public safety.
e. Unreasonably diminish or impair established property values within the
neighborhood, or in any way be contrary to the intent of this chapter.
f. Violate the intent and purpose of the Comprehensive Plan.
g. Violate any of the terms or conditions of [Section 20-5-2.B.2]. (see below)
2. A variance from the terms of [the Zoning Ordinance] shall not be granted unless it
can be demonstrated that:
a. Undue hardship will result if the variance is denied due to the existence of
special conditions and circumstances which are peculiar to the land,
structure or building involved and which are not applicable to other lands,
structures, or buildings in the same district or area.
(1) Special conditions may include exceptional topographic or water
conditions or, in the case of an existing lot or parcel of record,
narrowness, shallowness, insufficient area or shape of the property.
Page 3 of 9
(2) Undue hardship caused by the special conditions and circumstances
may not be solely economic in nature, if a reasonable use of the
property exists under the terms of [the Zoning Ordinance].
(3) Special conditions and circumstances causing the undue hardship
shall not be a result of lot or building size, or building location when
the lot qualifies as a buildable parcel.
b. Literal interpretation of the provisions of [the Zoning Ordinance] would
deprive the applicant of rights commonly enjoyed by other properties in the
same district under the terms of [the Zoning Ordinance] or put the property
in question to any reasonable use.
C. The special conditions and circumstances causing the undue hardship are
not the result from the actions of the applicant.
d. Granting the variance requested will not confer on the applicant any special
privilege that is denied by [the Zoning Ordinance] to other lands, structures,
or buildings in the same district under the same conditions.
e. The request is not a result of non -conforming lands, structures or buildings
in the same district.
f. The request is not a use variance.
g. The variance requested is the minimum variance necessary to accomplish
the intended purpose of the applicant.
The Comprehensive Plan states that "...strict adherence and enforcement be paid to all
floodplain ordinances and Federal floodplain insurance regulations". (Policy Plan, p.35)
The purpose of the access requirement is to protect public safety ensuring access to
property during periods of flooding, which this area has been frequently subject to.
Deviating from this standard has the effect of placing life and property in danger of loss
due to flooding because access cannot be guaranteed, and is contrary to the intent and
purpose of the FP District stated in Section 20-94-1 of the Zoning Ordinance. In
considering a variance, the Zoning Ordinance allows that the City may impose limitations
period of use or occupancy of the residence to protect public safety. However, such
limitations are impractical to devise and enforce for a single family dwelling intended to be
a principal residence.
The variance request also lacks a hardship that is unique to the property in question.
Many properties within the City are impacted by the 100 -year floodplain and are imposed
similar restrictions on their potential use. While there are other dwellings in the immediate
area that depend on CSAH 42 for access, they would be considered non -conforming uses
and not allowed further expansion or redevelopment without a similar variance application.
Page 4 of 9
Therefore, granting the requested variance would confer on the applicant a special
privilege denied to other lands and residences in the same district under the same
conditions.
Waste Treatment. Section 20-94-7.C.7 of the Zoning Ordinance prohibits construction
of new on-site waste treatment facilities within the FF District unless a plan is submitted
for preventing pollution during flood events, which is approved by MPCA. The site plan
does not identify locations for on-site septic and well systems and no plans have been
submitted for these utilities. Further, no documentation of MPCA review or approvals for
on-site septic and well systems have been submitted.
CUP Criteria. Section 20-4-2.F of the Zoning Ordinance directs that the Planning
Commission and City Council's findings on a CUP application be based upon (but not
limited to) the following criteria:
The proposed action's consistency with the specific policies and provisions of the
official City Comprehensive Plan.
Comment: The Comprehensive Plan states that "...strict adherence and
enforcement be paid to all floodplain ordinances and Federal floodplain insurance
regulations". (Policy Plan, p.35) To this end, the City established the Floodplain
Overlay District pursuant to Minnesota Statues 103F and 462 to "restrict or prohibit
uses which are dangerous to health, safety, or property in times of flood or which
cause increases in flood heights or velocities". (Policy Plan, p. 36) Development
of the property must only be allowed with strict conformance to the FF District
standards outlined in Section 20-94-7. C of the Zoning Ordinance.
The present application does not meet these requirements. The subject site does
not have adequate access via a public street that is not more than two feet below
the RegulatoryFlood Elevation. The applicant has not provided plans for an on-site
waste water treatment facility that is protected so as not to contaminate flood
waters. The City Engineer must also determine that raising the building site will not
impact flood flows or increase flood heights. Without conforming to the
requirements for development of a residential use in the FF District, the use creates
potential for loss of life and property, health and safety hazzards, and extra -ordinary
public expenditure for flood protection and relief contrary to the intent of the
Comprehensive Plan and Zoning Ordinance.
2. The proposed use's compatibility with present and future land uses of the area.
Comment. The subject site is surrounded by existing single family uses, many of
which may be non -conforming structures do to the FF District requirements. Any
future redevelopment of the area would be required to meet these requirements
suggesting that dwellings may not be a permanent land use in the area because of
access problems.
Page 5 of 9
3. The proposed use's conformity with all performance standards contained in the
Zoning Ordinance (i.e., parking, loading, noise, etc.).
Comment: The proposed use does not conform with all performance standards of
the Zoning Ordinance. The existing lot is non -conforming with regard to lot size and
requires consideration of a CUP for development. In that the proposed house can
meet all other applicable lot standards, there is likely no negative impact due to the
non -conforming lot size.
The proposed use also cannot meet the access requirements for residential uses
within the FF District. CSAH 42 and portions of the driveway are more than two feet
below the regulatory flood elevation meaning that access cannot be guaranteed
during periods of flooding. Approval of a variance is not warranted as allowing
construction of the home without adequate access has the potential to put life and
property at risk and would confer the applicant special privileges denied other
properties within the same district and under the same conditions.
4. The proposed use's effect upon the area in which it is proposed.
Comment. No plans have been provided demonstrating that an on-site sewage
treatment system can be provided that is protected from floods to prevent
contamination of floodwaters. The City Engineer must also determine that filling the
site will not increase flood flows or increase flood elevations. These two issues
suggest that development of the site will potentially compromise public health and
safety of the area.
5. The proposed use's impact upon property values of the area in which it is proposed.
Comment. No study has been completed regarding the impact to area property
values.
6. Traffic generation by the proposed use in relation to the capabilities of streets
serving the property.
Comment: The street serving the property is approximately four feet below the
regulatory flood elevation. During 100 -year flood events, the City cannot guarantee
that the roadway will be passable for access to the subject site. The lack of
adequate access to the property puts public safety at risk.
7. The proposed use's impact upon existing public services and facilities including
parks, schools, streets, and utilities and its potential to overburden the City's
service capacity.
Page 6 of 9
Comment: The proposed use will increase the City's obligation to maintain CSAH
42 during flood periods by pumping water to protect public heath and safety and
relieve damage caused by flood waters. Pumping the area to protect existing
dwellings within the FF District (which may be non -conforming) is an extra -ordinary
public expenditure. Construction of a single family dwelling on the subject site
perpetuates the need for this effort and expenditure.
CONCLUSION
The applicant has proposed to construct a single family dwelling on a non -conforming
parcel within the FF District. Development of the non -conforming lot requires a CUP per
Section 15 of the Zoning Ordinance. Section 94 establishes standards for development
of uses within the FF District which must be adhered to in order to protect to life and
property and minimize the City's obligations for flood protection and relief in the area.
The development proposal cannot meet the minimum requirements for lot access required
within the FF District. And, the applicant has not provided plans demonstrating that an on-
site septic system can be provided without risk of contaminating flood waters. The City
Engineer must also determine that filling the site will not increase flood flows or increase
flood elevations on adjacent properties.
These factors suggest that approval of the requested variance and conditional use permit
would increase the potential for loss of life and property, health and safety hazzards, and
extra -ordinary public expenditure forflood protection and relief contrary to the intent of the
Comprehensive Plan and Zoning Ordinance. Therefore, our office recommends that the
applications be denied based upon the findings outlined below. Options for approval of
the requests are also provided, subject to appropriate findings for the variance request,
should the Planning Commission and City Council disagree with this recommendation.
Decision 1 - Variance
A. Motion to approve a variance allowing access to a residential use in the FF District
that is more than two feet below the Regulatory Flood Elevation based upon the
following findings:
SPECIFIC FINDINGS OF A HARDSHIP MUST BE CITED.
B. Motion to deny the application based upon a finding that:
The variance would increase the danger to public health and safety as
access to the site may not be adequate during flood periods.
Page 7 of 9
2. The variance would confer the applicant rights that are denied by the Zoning
Ordinance to other lands in the same district under the same conditions.
3. Grating the variance would be contrary to the intent of the Comprehensive
Plan that the City strictly adhere to and enforce all Floodplain District
Ordinances.
C. Motion to table application.
Decision 2 - Conditional Use Permit (may only be approved if variance is approved)
A. Motion to approve a conditional use permit allowing construction of a single family
home within the FP District on a lot with area less than 75 percent of the WS District
minimum, subject to the following conditions:
1. The City may impose limitations on the period of use or occupancy of the
residence to protect public safety.
2. The City Engineer determine that the proposed fill will not increase flood
flows or flood elevations to adjacent properties.
3. The applicant apply for and receive approval of a flood map amendment
prior to issuance of a building permit.
4. The applicant submit plans for the design and location of on-site wastewater
treatment facilities protected so as not to contaminate flood waters, subject
to review and approval of the City Engineer, DNR, and MPCA.
5. All grading, drainage, and utility issues are subject to review and approval
of the City Engineer.
6. Comments of other City Staff or the DNR.
B. Motion to deny the application based upon the following findings:
1. Access to the property is more than two feet below the regulatory flood
elevation, which does not conform with Section 20-94-7.C.4.
2. The application did not include plans for the design and location of on-site
waste water treatment systems approved by MPCA that would be protected
so as not to contaminate flood water.
3. The quantity of fill and the potential impact to flood flows or flood elevations
is subject to further review by the City Engineer.
Page 8 of 9
4. The use creates potential for
hazzards, and extra -ordinary
relief contrary to the intent
Ordinance.
loss of life and property, health and safety
public expenditure for flood protection and
of the Comprehensive Plan and Zoning
pc. Mike Robertson, City Administrator
Judy Hudson, City Clerk/Zoning Administrator
Andy MacArthur, City Attorney
Ron Wagner, City Engineer
Patty Fowler, DNR
Tad Winterfield, Applicant
Page 9 of 9
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PROPERTY IDENTIFICATION NUMBER
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PROPERTY DESCRIPTION
The North Two Hundred (200) feet of Lot Three (3). Section Fifteen (15). Township One Hundred Twenty One (121).
Range Twenty Three (23)• containing 1.70 acres, be the soma .more or Tess, Subject to. public highway as now
located.
DAT= 11/9/01 hereby certify moot ep red m BOUNDARY do TOPOGRAPHIC SURVEY
DRAW, 2+5/33-35 nr u e port s prepared , OIYN i AssoaMtes, %1C.
DRAWN BY: SMK ��r under my aired 9upervieian Ont)
CHEC%ED BY: RMBthat I am a Jury Licensed Land `•� Aww"e r�e'ee� r�e>I� FOR
Surveyor under the laws of the see a4• Ivnewe
RLASIONS: State of Winneeoto. ^"t'"h "Fieweee1a 6f'*'o PAZ TROY WINTERFIELD
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signature: -,v,° 4- Pere. �eeef EXHIBIT B-1
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