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9. Memo to Board of Adjustment and AppealsECKBERG LAMMERS MEMORANDUM To: Mayor Christine Maefsky and Scandia City Council FROM: Andy Pratt, City Attorney DATE: January 12, 2018 RE: Reinhardt Appeal of Wetland Permit Denial Background Before its regular meeting on January 16, 2018, the Scandia City Council will hold a special meeting of the Board of Adjustments and Appeals, to hear an appeal made by landowners Joseph and Katherine Reinhardt, related to a Technical Evaluation Panel (TEP) report and findings denying an application from the Reinhardts for an after -the -fact wetland replacement plan on the Reinhardts' property. The Reinhardts constructed a driveway with frontage on Langly Avenue, to serve the main property located at 18884 Layton Avenue in the City. The driveway was placed directly through a protected wetland, and the Reinhardts took no action to procure a wetland permit or to otherwise mitigate the detrimental wetland effects. Last fall, 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, met as the TEP to review an after -the -fact wetland replacement application from the Reinhardts. The TEP recommended denial of the application, on the following grounds: (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) deferring to a memo from the City Planner, only one driveway is allowed on the property. The City Administrator then denied the after -the -fact wetland replacement application, which was appealed by the Reinhardts on December 19, 2017. The purpose of the January 16 special meeting is for the City Council, as the Board of Adjustments and Appeals, to consider the Reinhardts' appeal of the application denial. A final decision of the Board of Adjustment and Appeals must be made by resolution within 60 days of the Reinhardts' appeal, which is February 17, 2018. Reinhardts' Arguments The Reinhardts have retained legal counsel, who sent correspondence to the City Council dated January 9, 2018 and January 10, 2018. This memorandum will loosely follow those arguments as well as the findings and conclusions made by the TEP. Evaluation of Property as One Parcel The Reinhardts' counsel argues that "[e]ach of the Reinhardts' lots is a separate tax parcel," so presumably each parcel is entitled to access from a public road. At any rate, the argument provides that if the Reinhardts' attempt to sell the lot fronting on Langly Avenue (that lot is referred to as Lot 19), there needs to be a driveway access from that lot to the public road. Minnesota Statutes, Section 462.358, Subdivision 4b provides that certain parcels in existence at the time subdivision regulations are adopted may be conveyed individually, but the law at issue is the one regulating non -conforming lots, described below. The Reinhardts' parcels are non- conforming because they are below the minimum lot size of 2.0 acres. To the contrary, state statute and the City's Development Code provide that the Reinhardts' five tax parcels located west of Layton Avenue should be construed as one aggregated parcel. Minnesota Statutes, Section 462.357, Subdivision 1e(f provides that, in relation to two or more contiguous lots of record under common ownership, individual lots must be considered as separate parcels of land for the purpose of sale or development if all of the following requirements are met: • The lot must be at least 66% of the dimensional standard for lot width and size for the shoreland classification; o The standard lot width and size in this case is 2.5 acres. The lot size of Lot 19 is 0.55 acres, which falls short of the 66% requirement. This requirement is not met. • The lot must be connected to a public sewer, if available, or must be suitable for the installation of a Type 1 sewage treatment system; o The lot is not connected to the public sewer. The City's 201 Sewer serves the residence on the property • Impervious surface coverage must not exceed 25% of each lot; and o Taken as a whole, the aggregate lot does not exceed the 25% impervious surface requirement. However, if the lots are considered individually as the Reinhardts request, the residential lots closer to Layton Avenue would actually violate the impervious surface requirement. • Development of the lot must be consistent with an adopted comprehensive plan. o The lots likely meet the comprehensive plan development standards. Chapter One, Section 13.5 of the City's Development Code provides a similar test, and contains the following language at subdivision (1)(H): If in the case of two or more contiguous lots or parcels of land under a single ownership, any individual lot or parcel does not meet the minimum requirements of this Development Code, each individual lot or parcel cannot be considered as a separate parcel of land for purposes of sale or development. Such lots must be combined with adjacent lots under the same ownership so that the combination of lots will equal one or more conforming lots as much as possible, unless each individual lot is at least 66% of the dimensional standards for lot size and lot width and meets the requirements of paragraphs (D) through (G).1 This property is located in the City's General Rural District, which requires a minimum lot size of 2.0 acres. Again, the 0.55 -acre Lot 19 does not meet the 66% test in the Development Code. Therefore, Lot 19 cannot be a separate parcel of land for purposes of sale or development, but must be combined with adjacent lots under the same ownership. The Reinhardts' counsel argues that Section 13.5 of the Development Code "only restricts development of a non -conforming lot, not its sale," but the excerpt quoted above clearly prohibits "sale or development" of a non- conforming lot that does not meet the 66% standard. Therefore, Lot 19 cannot be considered a standalone, individual lot under the Development Code and state law, and must be combined with the other lots when considering the land uses allowed on the property.2 The United States Supreme Court recently upheld local government treatment and categorizing of individual lots into one aggregated parcel, in a case involving property located in Troy, Wisconsin, along the St. Croix River. Murr P. Wlisconsin, 137 S.Ct. 1933 (2017). In Murr, the landowners petitioned St. Croix County to treat contiguous lots as independent, such that one of the recreational lots could be sold off and further improved. The County construed the lots in the aggregate as one parcel, due to local ordinance effectively merging the lots, such that the landowners could only sell or build on the single combined lot. The U.S. Supreme Court upheld this approach as not constituting a compensable taking of the property, as the merger of the lots is a legitimate exercise of state power. Here, the same idea applies, in that Minnesota state statute and the City's Development Code effectively combine the Reinhardts' lots into one parcel. Lot 19 cannot be considered independently under these guidelines and cannot be sold or developed independently either. Upholding the denial of the after -the -fact wetland replacement application does not result in a taking of property that is compensable to the Reinhardts. Driveway Alternatives The Reinhardts, through their counsel, argue that constructing a small driveway on the southern edge of their property from Layton Avenue is not possible, due to the presence of a septic pipe, drainage issues, lack of emergency access, and the presence of a retaining wall. On the contrary, The other subparagraphs mentioned requires the lot to (i) have frontage and access on an improved public street, (ii) be suitable for a Type 1 sewage treatment system or connected to the City's 201 system, (iii) meet all structure and septic system setbacks, and (iv) not exceed 25% impervious surface coverage. Lot 19 does meet these requirements, but not the 66% lot size requirement. 2 Even if Lots 19 and 18 were combined, these lots would not meet the 66% lot size requirement. Lot 19 is 0.55 acres and Lot 18 is 0.32 acres, for a combined total of 0.87 acres. the TEP report found this area is a viable alternative for the Reinhardts to access the back of their property. The City's engineering standards allow for driveways to be 12 to 24 feet in width, and the property's southern route is approximately 28 -feet wide (according to calculations made by the City). After allowing for a five-foot side setback, the Reinhardts could still construct a maximum 23 -foot wide driveway. Moreover, the driveway is not necessary to access the septic tanks. According to the City, the septic tank may be pumped by hoses extended to a maximum length of 500 feet. Any slope in this southern route was created by the current owners or a predecessor; the slope is not man-made, like the steep area to the north of the Reinhardts' property. All in all, there are plenty of facts to back up the conclusion that the Reinhardts could construct a driveway on the southern portion of the Layton Avenue property. Again, the alternative is to construct a driveway directly through a substantial wetland on the Langly Avenue side, which is a policy not favored by the many local governmental units with jurisdiction over wetlands. Removal of Trees The Reinhardts argue that constructing a driveway through the southern access point is not acceptable because it would require the removal of two trees, which may be a violation of the City's Shoreland Management regulations. The City Planner has advised that the removal of trees with a Shore Impact Zone simply requires an administrative permit, which would likely be granted here because the other alternative is to adversely impact a wetland. Lack of Permits The Reinhardts completed the driveway project without obtaining the required permits from the City: • Wetland Permit • Driveway Administrative Permit • Land Alteration/Excavation/Grading Permit Applying for any of these permits would have alerted City staff to the project, and construction through the wetland could have been avoided at that time. If the Board of Adjustment and Appeal decides to approve the after -the -fact wetland replacement application, conceivably the Reinhardts would have to also apply for the other permits that they did not apply for earlier. Variance It is possible the Reinhardts could apply for a variance to the wetland requirement, but a variance is likely not applicable. "Practical difficulties" are required to justify a variance, and one of the factors is "the plight of the landowner is due to circumstances unique to the property not created by the landowner." Minn. Stat. 5462.357, subd. 6(2). Here, there is nothing unique to the property that has not been created by the landowner, as there is a viable alternative for the placement of the driveway. The placement of another driveway directly through a wetland is likely not a reasonable use of the property at any rate. The City Planner may provide more information on the likelihood of a variance at the meeting. Conclusion The Board of Adjustment and Appeal has ample grounds to uphold the denial of the after -the - fact wetland replacement application. A further appeal will likely have to be taken by the property owners to the Board of Water and Soil Resources. If the Board of Adjustment and Appeal decides to approve the after -the -fact wetland replacement application, it should require the additional permits for the driveway to be secured, and it should work with all participants to ensure wetland credits are purchased, and the total area of the driveway is reduced to create the smallest possible wetland disturbance. I will be present at the meeting to answer any further questions.