18 Resolution 01-30-18-01 Board of Adjustments and Appeals upholding TEP decision to deny afrer the fact applicationCITY OF SCANDIA, MINNESOTA
BOARD OF ADJUSTMENTS AND APPEALS
RESOLUTION NO. 01-30-18-01
UPHOLDING TECHNICAL EVALUATION PANEL FINDINGS REPORT UNDER THE
MINNESOTA WETLAND CONSERVATION ACT
18884 LAYTON AVENUE NORTH
WHEREAS, Joseph D. and Katherine A. Reinhardt (the "Landowners"), owners of a
single-family home at 18884 Layton Avenue North (the "Property"), have constructed a driveway
with frontage on Langly Avenue, to serve the Property. The driveway was placed directly through
a protected wetland, and the Landowners did not receive a wetland permit before the driveway's
construction; and
WHEREAS, the Minnesota Department of Natural Resources issued a Restoration Order
under the Minnesota Wetland Conservation Act, dated as of August 1, 2017, ordering the
Landowners to restore the wetland or submit a complete wetland replacement plan, exemption, or
no -loss application to the City; and
WHEREAS, after receipt of the Restoration Order, the Landowners sought to submit an
after -the -fact wetland replacement application; and
WHEREAS, representatives from the Washington County Soil and Water Conservation
District (SWCD) and the Minnesota Board of Water and Soil Resources (BWSR), along with the
City Administrator, have met multiple times as a Technical Evaluation Panel (TEP) to review the
after -the -fact wetland replacement application from the Landowners; and
WHEREAS, the TEP recommended denial of the after -the -fact wetland replacement
application, which denial was upheld by the City Administrator. The Landowners have appealed
this denial to the City Council, acting as the Board of Adjustments and Appeals (the "Board"); and
WHEREAS, the Board met on January 16, 2018, to discuss the Landowners' appeal of the
denial of the after -the -fact wetland replacement application; and
WHEREAS, on January 26, 2018, the TEP held another meeting on the after -the -fact
wetland replacement application with the Landowners present, to consider new information
submitted by the Landowners documenting a potential lack of storage access on the Property,
without the use of the new driveway. By email correspondence dated January 29, 2018, the TEP
renewed its recommendation of the denial of the after -the -fact wetland replacement application.
NOW, THEREFORE, BE IT HEREBY RESOLVED BY THE BOARD OF
ADJUSTMENTS AND APPEALS OF THE CITY OF SCANDIA, WASHINGTON
COUNTY, MINNESOTA, that it upholds the denial of the after -the -fact wetland replacement
application from the Landowners, based on the following findings:
1. The Landowners have not demonstrated entitlement to an after -the -fact wetland
replacement application by a fair preponderance of the evidence. The TEP's conclusions
that (i) the new driveway was not needed to provide access to the Property's septic system,
(ii) the new driveway was not needed to provide access to the storage of items on the
Property, and (iii) alternate access to the rear of the Property is potentially available, are
upheld by this Board.
2. The Board must decide on the after -the -fact wetland replacement application based on the
principles and guidelines contained in Minnesota Administrative Rules, Chapter 8420 (the
"Rules"), which implement the regulatory provisions of the Wetland Conservation Act of
1991.
3. Under Section 8420.0520, Subpart 3 of the Rules, this Board must not approve an after -
the -fact wetland replacement application unless this Board finds the Landowners have
demonstrated, among other things, the application will avoid direct or indirect impacts that
may destroy or diminish the subject wetland. This "impact avoidance" analysis must
consider whether the Landowners have accommodated or removed constraints on
alternatives imposed by zoning standards, including requests for conditional use permits,
variances, or planned unit developments.
4. Under Section 8420.0520, Subpart 3C(3)(d) of the Rules, this Board finds and determines
that the City has not received a variance application or other applicable land -use application
from the Landowners to allow for a potential alternative access on the Property that would
not disturb the existing wetland. As a part of this process, the Landowners may submit a
detailed survey of the Property and related documentation, to allow the City and its
Planning Commission to determine whether construction of alternate access on the
Property is available.
5. If a variance is granted by the City for an alternative access on the Property, the after -the -
fact wetland replacement application is moot. If, based on the variance application and all
available documentation, the variance is denied by the City, the Landowners may continue
to proceed under the Rules for an after -the -fact wetland application.
6. Notice of this decision shall be mailed to the Landowners within ten business days of the
date hereof. The Landowners may appeal this decision to BWSR within 30 days after the
date on which this decision is sent to the Landowners. The provisions of Section
8420.0905, Subpart 4 of the Rules shall apply to any appeal taken to BWSR.
Adopted by the Board of Adjustments and Appeals, City of Scandia, Minnesota, this 30th day
of January, 2018.
Christine Maefsky, Board Chair
ATTEST:
Neil Soltis, City Administrator