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HomeMy WebLinkAbout2012-10-17 PACKET 08.A.COUNCIL ACTION REQUEST 1. Consider approving a resolution granting a variance reducing the 15 -foot minimum rear yard setback to 8 feet for the proposed concrete pool decking and granting a variance allowing the pool decking to encroach 2 feet onto the 10 -foot wide platted drainage and utility easement located along the rear property boundary line. 2. Consider approving the Hold Harmless Agreement and authorizing the Mayor and City Clerk to fully execute and record the agreement at the Washington County Recorder's Office. STAFF RECOMMENDATION 1. Approve the resolution granting the variance to rear setback requirements and easement encroachment. 2. Approve the Hold Harmless Agreement and authorize the Mayor and City Clerk to fully execute and record the agreement. BUDGET IMPLICATION $N /A $N /A N/A BUDGETED AMOUNT ACTUAL AMOUNTFUNDING SOURCE ADVISORY COMMISSION ACTION DATE REVIEWED APPROVED ® PLANNING 9/24/12 ® ❑ SUPPORTING DOCUMENTS ® MEMO /LETTER: Memo from John McCool dated 10/10/12 ® RESOLUTION: Draft ❑ ORDINANCE: ❑ ENGINEERING RECOMMENDATION: ❑ LEGAL RECOMMENDATION: ® OTHER: Hold Harmless Agreement ADMINISTRATOR'S COMMENTS ■ 1 l4-1 i Date COUNCIL ACTION TAKEN: ❑ APPROVED ❑ DENIED ❑ OTHER CITY OF COTTAGE GROVE MINNESOTA TO: Mayor and Members of the City Council Ryan Schroeder, City Administrator FROM: John McCool, Senior Planner DATE: October 10, 2012 RE: Robert Koch Variance Applications — In- Ground Swimming Pool Setback and Encroachment in Easements Introduction At the City Council meeting on October 3, 2012, Council denied Robert Koch's variance request for the following variances: 1) Reduce the required 15 -foot minimum rear yard setback to six feet for the placement of an in- ground swimming pool and pool decking around the pool; and 2) Encroach four feet into a ten -foot wide drainage and utility easement along the rear lot line; and 3) Encroach ten feet into a 54.84 -foot wide drainage and utility easement along the east property line. Council also tabled the Planning Commission's recommendation to grant a variance reducing the required 15 -foot minimum rear yard setback to 10 feet and that there be no encroachment on or over any drainage and /or utility easement. The City Council directed city staff to prepare a resolution granting a variance to reduce the required 15 -foot minimum rear yard setback to eight feet and a variance allowing the concrete pool decking to encroach two feet onto a platted public drainage and utility easement. In addi- tion, Council requested that a "hold harmless agreement" be prepared to indemnify the City from all claims, liabilities, losses, etc. in regard to the proposed concrete decking along the edge of the in- ground swimming pool that will encroach upon the public drainage and utility easement. The agreement and revised resolution granting the necessary variances are attached for your consideration. Discussion The applicant has submitted a revised site plan showing the location of their 18 -foot by 36 -foot in- ground pool. The concrete pool decking will be four feet wide on the west, north, and east sides of the pool and three feet wide on the south side of the pool. The pool size has increased from 17 feet by 34 feet to 18 feet by 36 feet since the last City Council meeting. An illustration showing a cross - section of the rear yard and the proposed location of the in- ground pool was also prepared. Both illustrations show a two -foot concrete deck encroachment on the ten -foot Honorable Mayor Bailey, City Council Members, and Ryan Schroeder Koch Variances — In- ground Pool Setback and Easement Encroachment October 10, 2012 Page 2 of 3 wide drainage and utility easement that exists along the property owner's rear lot line. The revised site plan and cross - section illustration are shown below: i ( � i I I i 4 i e7s erE� / I 4H > IY r 74 pN! E f (for t+t4lne .r Site Plan � Cross - section Illustration of Rear Yard Honorable Mayor Bailey, City Council Members, and Ryan Schroeder Koch Variances — In- ground Pool Setback and Easement Encroachment October 10, 2012 Page 3 of 3 A "Hold Harmless Agreement" was prepared for your consideration. The agreement includes provisions that the property owner is responsible for any costs associated with the removal of the encroachment if in the future it is determined that the encroachment must be removed. If the City or any utility company should need to use the easement, the City or utility company is not liable for any repair or replacement of the encroachment. The agreement also indemnifies and holds harmless the City from any damage to the encroachment from any intended uses within the easement. The obligations contained in the agreement will run with the land and is binding on the owner or future estate holders of the property. This agreement will be recorded against the property's title at the owner's expense. A copy of the revised resolution and Hold Harmless Agreement is attached. Recommendation That the City Council takes the following actions: 1. Adopt a resolution granting a variance reducing the 15 -foot minimum rear yard setback to eight feet for the proposed concrete pool decking and granting a variance allowing the pool decking to encroach two feet onto the ten -foot wide platted drainage and utility easement located along the rear property boundary line. 2. Approve the Hold Harmless Agreement and authorize the Mayor and City Clerk to fully execute the agreement and record the agreement at the Washington County Recorder's Office. RESOLUTION NO. 2012 -XXX A RESOLUTION GRANTING A VARIANCE TO ALLOW THE CONCRETE DECKING OF AN IN- GROUND SWIMMING POOL TO BE EIGHT FEET FROM THE REAR PROPERTY LINE WHEN 15 FEET IS THE MINIMUM SETBACK AND ALLOW THE CONCRETE POOL DECKING TO ENCROACH TWO FEET ONTO A TEN -FOOT WIDE DRAINAGE AND UTILITY EASEMENT ALONG THE REAR LOT LINE OF PROPERTY LOCATED AT 7595 63RD STREET CIRCLE SOUTH WHEREAS, Robert Koch applied for variances to City Code Title 11- 3 -3(C), Setbacks, and Title 11- 3 -4(E), Encroachments Over Easements, to reduce the 15 -foot minimum rear lot line setback for accessory structures to eight feet and allow the concrete pool decking to en- croach two feet on the existing ten -foot wide drainage and utility easement located along the rear lot line of the property legally described as: Lot 5, Block 5, Silverwood Addition, Cottage Grove, Washington County, State of Minnesota. Commonly known as 7595 63rd Street Circle South, Cottage Grove, Washington County, State of Minnesota. WHEREAS, public hearing notices were mailed to property owners within 500 feet of the property and a public hearing notice was published in the South Washington County Bulletin; and WHEREAS, a planning staff report, which detailed specific information on the property and the variance application request, was prepared and presented to the Planning Commission; and WHEREAS, the Planning Commission held a public hearing on September 24, 2012; and WHEREAS, the public hearing was open for public testimony and no one spoke for or against the application. The applicant was present at the meeting; and WHEREAS, the Planning Commission reviewed the variance criteria and findings of facts established by the Zoning Ordinance for granting a variance; and WHEREAS, Planning staff recommended denial of the variance application that pro- posed the placement of an in- ground swimming pool with four -foot wide concrete pool decking along the sides of the swimming pool to be six feet from the rear property line and encroaching four feet onto the ten -foot wide drainage and utility easement along the rear lot line and en- croaching ten feet into the 54.84 -foot wide drainage and utility easement along the east prop- erty line. The Planning Commission, by a vote of 5 ayes, 2 nays, 1 abstention, and 1 member not voting, recommended to the City Council that the variance to allow the pool and decking to encroach into the drainage /utility easements be denied; and WHEREAS, the Planning Commission did recommend to the City Council a reduction to the 15 -foot minimum rear yard setback for accessory structures to 10 feet with the condition Resolution No. 2012 -XXX Page 2 of 3 that the in- ground swimming pool and pool decking does not encroach on or over any drainage and utility easement, and WHEREAS, the City Council unanimously (4 ayes to 0 nays) approved a resolution on October 3, 2012, denying the variance application that proposed an in- ground swimming pool with four -foot wide concrete pool decking along the sides of the swimming pool to be six feet from the rear property line and encroaching four feet onto the ten -foot wide drainage and utility easement along the rear lot line and encroach ten feet into the 54.84 -foot wide drainage and utility easement along the east property line; and WHEREAS, the City Council did not take any action on the Planning Commission's rec- ommendation that a variance be granted to reduce the 15 -foot minimum rear yard setback to ten feet; and WHEREAS, the City Council directed city staff to prepare a resolution granting a variance to reduce the required 15 -foot minimum rear yard setback to eight feet and a variance allowing the concrete pool decking to encroach two feet onto a platted public drainage and util- ity easement. In addition, Council requested that a "hold harmless agreement" be prepared that indemnifies the City from all claims, liabilities, loses, etc. in regard to the proposed con- crete decking along the edge of the in- ground swimming pool encroaching upon the public drainage and utility easement. NOW, THEREFORE BE IT RESOLVED, the City Council of the City of Cottage Grove, Washington County, Minnesota, hereby grants a variance from City Code Title 11- 3 -3(C), Set- backs, to reduce the 15 -foot minimum rear yard setback from the rear property line to eight feet and granting a variance to Title 11- 3 -4(E), Encroachments Over Easements, to allow the concrete pool decking to encroach not more than two feet onto a ten -foot wide platted drainage and utility easement along the rear lot line of the property legally described above. Approval of the accessory structure rear yard setback and encroachment on the platted drainage and utility easement is based upon the following findings of facts: A. The 913.2 high water elevation in the stormwater basin south of the applicant's property does not intrude into the ten -foot wide drainage and utility easement located along the rear lot line of this parcel. B. The stormwater basin south of the applicant's property is public open space that will not be developed for the construction of any dwellings. C. Fencing around the pool will not adversely impact stormwater drainage and will be allowed in the drainage and utility easements. The City is not responsible for any damage to the fence caused by high stormwater levels. D. Granting a variance to reduce the 15 -foot minimum rear yard setback to eight feet for the concrete pool decking will not be detrimental to the public welfare or injurious to other land or improvements in the neighborhood in which the parcel of land is located. Resolution No. 2012 -XXX Page 3 of 3 E. Constructing an in- ground swimming pool that is eleven feet from the rear lot line and the pool decking eight feet from the rear lot line will not cause any adverse impact to the stormwater storage capacity designed for this existing stormwater basin or jeopardize the future integrity of managing this regional stormwater system. F. The concrete deck will be a few inches above the existing ground elevation and will not adversely impact any city utility system as referenced in the City's Com- prehensive Plan. G. The unique circumstance to the property not created by the landowner is the existence of a stormwater storage basin and emergency overflow swale in the property's vicinity that restricts the lot area for structures to be placed on the parcel. H. The 54.84 -wide drainage and utility easement along the east side of the subject property covers approximately 37 percent of lot area. BE IT FURTHER RESOLVED, the City Council of the City of Cottage Grove, Washington County, Minnesota, the variances to Title 11- 3 -3(C), Setbacks, reducing the 15- foot minimum rear yard setback from the rear property line to eight feet, and to Title 11- 3 -4(E), Encroachments Over Easements, allowing the concrete pool decking to encroach not more than two feet onto a ten -foot wide platted drainage and utility easement along the rear lot line of the property legally described above is subject to the following conditions: 1. The property owner must complete a building permit application and submit de- tailed construction plans for the proposed in- ground swimming pool. A building permit must be issued by the City before construction starts. 2. Fill material necessary for the in- ground swimming pool and pool decking is prohibited within any drainage and utility easement. 3. The property owner must agree to enter into a hold harmless agreement with the City of Cottage Grove. Passed this 17th day of October, 2012. Myron Bailey, Mayor Attest: Caron M. Stransky, City Clerk (reserved for recording information) EASEMENT ENCROACHMENT AGREEMENT BETWEEN THE CITY OF COTTAGE GROVE AND ROBERT J. AND MELISSA A. KOCH FOR PROPERTY AT 7595 — 63 STREET CIRCLE SOUTH THIS ENCROACHMENT AGREEMENT ( "AGREEMENT ") dated solely for identification this 17th day of October, 2012, by and between the City of Cottage Grove, a municipal corporation, (hereinafter called "CITY "), and Robert J. and Melissa A. Koch, (hereinafter called "OWNER "). WHEREAS, OWNER is the owner of that certain real property located at 7595 — 63 Street Circle South (herein after called the "PROPERTY ") and legally described as Lot 5, Block 5 of Silverwood Addition; City of Cottage Grove, Washington County, Minnesota. The property identification number is 05.027.21.13.0039. WHEREAS, OWNER has requested that CITY allow OWNER to build and maintain a portion of concrete decking adjoining an in- ground swimming pool and appurtenances, as shown on the proposed improvement plan, (hereinafter called the "ENCROACHMENT" for the use and benefit of said owner's Property, encroaching two feet in, on, over, across, and through a ten foot wide drainage and utility easement that is located along and parallel to the rear lot line for Lot 5, Block 5 of Silverwood Addition, filed in the Office of the County Recorder of said County (hereinafter called the "EASEMENT "). WHEREAS the existing EASEMENT was dedicated for public use for drainage and utility purposes over portions of the subject PROPERTY which will encroach into the EASEMENT area as depicted on the attached site map attached hereto as Exhibit "A ". NOW, THEREFORE, the CITY hereby approves the ENCROACHMENT within the EASEMENT area on the subject PROPERTY for the construction of a concrete decking adjoining an in- ground swimming pool contingent upon the OWNER agrees to the following conditions: (1) The ENCROACHMENT shall be constructed and installed in a good workman like manner in substantial conformance with the plans on file in the CITY'S Planning Division, and as shown in Exhibit "A" and the ENCROACHMENT does not adversely affect drainage or utility services. (2) OWNER and its heirs, successors and /or assigns in interest shall maintain the permitted ENCROACHMENT at all times in a decent, safe and sanitary condition in accordance with general prevailing standards of maintenance, and pay all cost and expenses incurred in doing so. However, nothing herein shall be construed to require OWNER to maintain, replace or repair any CITY owned facility such as pipeline, conduit, cable located in or under said ENCROACHMENT, except as otherwise provided herein. (3) The CITY or any utility company having authority to use the EASEMENT shall not be liable for repair or replacement of ENCROACHMENT in the event that they are moved, damaged, or destroyed by virtue of the lawful use of the EASEMENT. OWNER is responsible for any costs associated with the removal of ENCROACHMENT into or upon the EASEMENT. (4) If CITY or other public facilities or improvements are damaged by the installation or presence of the permitted ENCROACHMENT, as determined in the sole opinion of the City Engineer, OWNER shall be responsible for the cost of repair. (5) If any of the ENCROACHMENT (s) actually built or installed during construction vary from the permitted ENCROACHMENT(s) approved herein, such changes or variations must be approved in advance by the City and shall be shown on as -built plans. (6) OWNER shall at all times relieve, indemnify, protect, defend and hold harmless the CITY and its advisory commissions, city council, and employees against any and all claims, liabilities, demands, actions, proceedings, losses, liens, costs, attorney and expert fees, judgments, civil fines, and penalties of any nature whatsoever relating to the ENCROACHMENT or this AGREEMENT including but not limited to claims in regards to or resulting from the construction, maintenance, state of use, repair or presence of the ENCROACHMENT. (7) Termination of Agreement. The City may, at its sole discretion, terminate this AGREEMENT at any time by giving the OWNER of the subject PROPERTY thirty days advance written notice, except that no notice period will be required in the case of an emergency condition as determined solely by the City and the AGREEMENT may then be terminated immediately. The OWNER shall remove, at OWNER'S expense, said ENCROACHMENT within thirty (30) days following written notice and as directed by the CITY. Should OWNER fail to remove the ENCROACHMENT or any part thereof within this time period or within any extension in writing granted by the CITY, the CITY may cause such work to be done, and the costs thereof shall be a charge to and may become a lien upon OWNER'S property. (8) Hold Harmless and Indemnity. In consideration of being allowed to encroach in the EASEMENT, OWNER, their successors, heirs, and assigns, hereby agree to indemnify and hold harmless the CITY from any damage to the ENCROACHMENT from any cause, including but not limited to damage resulting from the construction, maintenance, state of use, repair, and presence of CITY facilities, operation or occupation within the EASEMENT. 2 (9) Whenever it is deemed by the City Engineer that a public improvement cannot be economically placed, replaced, or maintained due to the presence of the ENCROACHMENT, OWNER agrees to provide an alternative right -of -way and /or relocate the public improvement subject to the approval of the CITY, all at no cost or expense to the CITY. (10) Whatever rights were acquired by CITY with respect to the EASEMENT shall remain and continue in full force and effect and in no way be affected by CITY'S grant of permission contained in this AGREEMENT. (11) Any construction performed prior to the CITY'S final approval is at the OWNER'S risk and may be subject to removal, fines and penalties. (12) This AGREEMENT and all the obligations contained therein shall constitute covenants running with the land and shall be binding on and for the benefit of OWNER, its transferees, successors and assigns, and any other present or future interest holders or estate holders of any portion or all of the property. This Agreement shall run with the land and shall be recorded against the title of this PROPERTY at the OWNERS expense. IN WITNESS WHEREOF, the parties hereto for themselves, their heirs, executors, administrators, successors, and assigns do hereby agree to the full performance of the covenants herein contained and have caused this AGREEMENT to be executed by setting hereunto their signatures on the day and year respectively written herein below. Passed this 17 day of October, 2012. C��Till01:4 � By: `J ' �'4 Robert J. Koch By: By: Melissa A. Koch CITY OF COTTAGE GROVE: By: Myron Bailey, Mayor 3 Caron M. Stransky, City Clerk ACKNOWLEDGEMENT FOR CITY STATE OF MINNESOTA ) )ss. COUNTY OF WASHINGTON ) The foregoing instrument was acknowledged before me this day of 2012, by Myron Bailey, Mayor and Caron M. Stransky, City Clerk of the City of Cottage Grove, a Minnesota municipal corporation, on behalf of the corporation. Notary Public (Notary Seal) ACKNOWLEDGEMENT FOR OWNER STATE OF MINNESOTA ) )ss. COUNTY OF WASHINGTON ) On this _/ day of 0 Cho k ,-- �— , 2012, before me, a notary public within and for said County, personally appeared Robert J. and Melissa A. Koch, husband and wife, execute sa' nstrument to be th free act and deed. PATRICIA K. DILLON r NOTARY PUBLIC - MINNESOTA ` My Commission Expires Jan. 31, 2015 Notary Public (Notary Seal) THIS INSTRUMENT WAS DRAFTED BY: Community Development Department City of Cottage Grove, MN 7516 - 80 Street South Cottage Grove, MN 55016 0 EXHIBIT "A" I