This transcript is for the **Apple Valley Planning Commission** meeting. Please note that while the City Council names were provided in the context, Planning Commission members are different officials. Based on the dialogue, the Chair is **Ann Kurtz** (referenced as "Chair Kurtz" at 58:37). [0:00] **Intro:** [Music] [0:09] **Chair Ann Kurtz:** Good evening everyone. I call the August 16, 2023, Apple Valley Planning Commission meeting to order. The first item of business tonight is the approval of the agenda. Any changes from staff? [0:40] **Staff:** No changes from staff, Madam Chair. [0:42] **Chair Ann Kurtz:** Thank you. Any changes from the commissioners? [0:45] **Commissioner Schindler:** Move approval. [0:46] **Commissioner Scanlon:** Second. [0:47] **Chair Ann Kurtz:** Approval made by Commissioner Schindler and seconded by Commissioner Scanlon. Any discussion? If not, all those in favor signify by saying aye. [0:53] **Commissioners:** Aye. [0:54] **Chair Ann Kurtz:** Opposed, nay. Motion carries. The next item of business is the approval of the consent agenda. Consent agenda items are considered routine and will be enacted with a single motion without discussion unless a commissioner or a citizen request to have any items separately considered. It will then be moved to the land use action items for consideration. 3A, can I get approval for the minutes of the August 2nd, 2023, regular meeting? [1:30] **Commissioner Scanlon:** So moved. [1:32] **Commissioner Schindler:** Second. [1:33] **Chair Ann Kurtz:** Moved by Commissioner Scanlon and seconded by Commissioner Schindler. Any discussion? If not, all those in favor signify by saying aye. [1:38] **Commissioners:** Aye. [1:39] **Chair Ann Kurtz:** Opposed, nay. Motion carries. Moving on to number four, public hearings. We do not have any public hearings tonight, so that brings us to 5A: Land Use Action Items. And that's Eagle Point Second Edition, and the staff is Kathy Bodmer. Thank you. [2:15] **Kathy Bodmer (City Planner):** Thank you, Madam Chair, Planning Commissioners. Eagle Point LLC is the petitioner of this request. They are the owner of the subject property by preliminary plat of Eagle Point Apple Valley Second Edition, and then site plan review building permit authorization for Phase Two Eagle Point Apple Valley. The location map shows the 10.3-acre parcel is on the northwest corner of Garden View Drive at 140th Street. The 2040 Comprehensive Plan guides for Low Density Flex Residential, and the zoning currently on the site is LDF as well. The overall development is 21.3 acres. Phase Two then will be 10.3 acres within that project. Construction is well underway for Phase One, and the petitioner is back requesting a slight modification to the approved preliminary plat. Just for the Planning Commission's history, I wanted to go back and kind of look again at the plans that were presented to the Planning Commission. Not to be too tedious, but just to let the Commission know that there had been a plan for additional units within this development, and they're bringing it back consistent with what had been reviewed previously. At the sketch plan, June 2nd, 2021, on the southwest corner of the site, there was a four-unit building shown. Then when the public hearing was held June 16th, the four-unit building was still being shown. But then by the time the Planning Commission made its recommendation, this whole west side of the development was really under review for stormwater management and utilities. So, with that being up in the air, the developer wanted to move forward with the first phase. They decided to proceed with the preliminary plat of the lots that were outside of the ponding area with the idea of being able to come back later. The City Council then approved the preliminary plat August 12, 2021, minus those three buildings. That gave Phase Two overall 27 units. So that brings us to today. The revised preliminary plat then brings one three-unit building back into the plan. No other changes are proposed; same number of villas, the arrangement, everything is the same. The only difference is the placement of the three-unit building and then three additional visitor parking spaces to meet the visitor parking demand, which was a concern at the public hearing. Grading and drainage has been reviewed by the Assistant City Engineer and they have no outstanding questions. Landscape plan was discussed; landscaping is required to be installed at 2.5% of the value of construction. One of the last remaining items was just getting verification of the height of the villa townhomes; they range between 21 and 23 feet, well below the 35 maximum. Regarding public hearing comments from the first meeting in August: first, concern that the request is a change from what had been previously approved. It wasn't any kind of trick; it was what they had originally been proposing before the stormwater review. Second, visitor parking: three spaces were added. Third, density: the neighbors preferred open space, but once a plan meets zoning and the Comprehensive Plan, the city has less discretion to deny it if it fits the engineering requirements. Staff is recommending approval of the two actions. I have a breakdown of conditions 1 through 10 and 1 through 9. [10:33] **Chair Ann Kurtz:** Thank you, Kathy. First of all, I want to extend a thank you to you because this explains it a lot better for me to understand. I felt a couple weeks ago I was a little concerned, and now with this explanation and seeing the 2021 sketch plan, it feels much better to get that clarification. For the residents' sake, we're still at that 30 units, right? So we're not going over what we initially had approved. I have three Commissioners that weren't here last time, so if you want to ask any questions to Kathy, feel free to do so. [11:24] **Commissioner Sandahl:** Madam Chair, Kathy, I just wanted to echo what was said. I appreciate the additional information. I feel like I came down hard on it last time, so I appreciate you finding the information so we could see it clearly. [11:43] **Chair Ann Kurtz:** Thank you. [11:45] **Commissioner Scanlon:** Echo the same thing because I was here at the last meeting. I appreciate your research for the historical perspective. Excuse me if I missed it in the report, the variance that was asked for previously? [12:00] **Kathy Bodmer (City Planner):** Thank you for bringing that up. That has been dropped for now. The priority is just making sure the preliminary plat moves forward. [12:08] **Commissioner Scanlon:** Okay. [12:10] **Commissioner Pruitt:** Yes, Madam Chair. Thank you, Kathy. I read through this and it's very explanatory. Just for clarity and confirmation, I believe you touched on this, but this addition still meets the zoning and Comprehensive Plan? [12:28] **Kathy Bodmer (City Planner):** Very much so. The density allowed is three to eight units an acre. This will take the density from 4.0 to 4.2. [12:40] **Commissioner Mahowald:** Just one question with respect to the landscape plan. I just wanted to see the trees that would be around that because the one we have is in black and white. I appreciate seeing how the three units fit into the open space between the two ponds. [13:30] **Chair Ann Kurtz:** Any other questions for anyone? If not, I hear a motion or what is the pleasure of the Commission? [13:47] **Commissioner Scanlon:** I recommend approval of the preliminary plat of Eagle Point Apple Valley Second Edition to create a total of 30 Villa and townhome units subject to staff report outlining items paragraphs one through ten. [14:14] **Commissioner Sandahl:** Second. [14:15] **Chair Ann Kurtz:** Motion made by Commissioner Scanlon and seconded by Commissioner Sandahl. Any discussion? If not, all those in favor signify by saying aye. [14:24] **Commissioners:** Aye. [14:25] **Chair Ann Kurtz:** Opposed, nay. Motion carries. [14:27] **Commissioner Scanlon:** Madam Chair, I recommend approval of a site plan building permit authorization to construct 30 Villa and townhome units at the Eagle Point Apple Valley Second Edition subject to the conditions outlined in City staff report items one through nine. [14:48] **Commissioner Diekman:** Second. [14:49] **Chair Ann Kurtz:** Motion made by Commissioner Scanlon and seconded by Commissioner Diekman. Any discussion? If not, all those in favor signify by saying aye. [14:55] **Commissioners:** Aye. [14:56] **Chair Ann Kurtz:** Opposed, nay. Motion carries. Thank you, Kathy. Okay, that completes 5A. We now turn to 5B, and that is the Frickman impervious coverage variance, and that also is Kathy Bodmer. [15:15] **Kathy Bodmer (City Planner):** Thank you, Madam Chair. Terry and Eric Frickman are the property owners at 13511 Granada Avenue. They request a variance to increase the allowable impervious surface coverage on their lot from 35% to 42.2% to construct a third garage stall. The zoning is R-3 single-family residential. In Apple Valley, swimming pools and their decking are considered impervious surface areas. The code allows a property owner to increase from 35% up to 40% (a 5% overage) if they meet four steps: good cause, install a city-approved onsite stormwater management facility, pay fees, and provide an escrow. The Frickmans submitted a permit for a third stall garage. Staff found they currently have 38.1% coverage, which is already over the 35% limit. We found that a pool permit issued in 2022 was supposed to bring them to 30.4%, but the decking was actually installed much larger than what was approved. The pool permit final inspection has not yet been approved. Staff wants to make clear that the decking exceeds what was approved. Regarding practical difficulties: the applicant is not denied reasonable use of the property if they can't build a third stall. Options available to avoid the variance are to do nothing (but mitigate the current 38.1%) or remove 337 square feet of existing patio to make room for the garage. Staff is recommending denial. The petitioner has a presentation. [26:59] **Eric Frickman (Petitioner):** Hi, I'm Eric Frickman. First, the existing pool permit not being approved is news to us; we were told it was closed. I want to talk about the intent of the ordinance—stormwater runoff. One consideration is that the swimming pool itself shouldn't be considered impervious. If uncovered, water goes into the pool and doesn't create runoff. If covered, we pump the water off into a vegetated area in our yard, reintroducing it to the watershed. We argue this matches the intent of the ordinance. Our proposal: if we remove the pool area from the calculation, we are much lower. We also plan to remove our front sidewalk and add mitigation like a swale with native vegetation and a rain garden. We also have a natural vegetation area in the back. Our final ask is that the pool not be considered impervious, and with our reductions, we receive approval for the 1.4% overage. [33:53] **Kathy Bodmer (City Planner):** Madam Chair, if I may respond. Although the request is sincere, the Planning Commission doesn't have the ability to not follow the code. We can't just decide a pool isn't impervious when the code says it is. [34:55] **Evan Sieben (Assistant City Engineer):** Madam Chair, Kathy hit the nail on the head. Anything that lands on the pool is rainwater not being transferred to groundwater. It fits the criteria for impervious surface because water can't infiltrate there. [36:16] **Chair Ann Kurtz:** Do Burnsville and Eagan count pools? [36:19] **Kathy Bodmer (City Planner):** Burnsville does. Lakeville only counts them in Shoreland Districts. [37:04] **Commissioner Scanlon:** Madam Chair, Kathy, it seems like we’re premature until the pool permit issue is resolved. [38:57] **Kathy Bodmer (City Planner):** The variance is before you because they built the decking larger than approved. They need a variance to exceed 40% regardless of the pool permit status. [41:13] **Commissioner Schindler:** Madam Chair, Kathy, if they could get it down to 40% with mitigation, they wouldn't need a variance. I don't feel comfortable approving a variance when they could probably get it down to 40% by removing some decking or changing the driveway. [43:30] **Commissioner Scanlon:** Holding this won't make a difference. If it's at 40%, it's handled internally by staff. [44:18] **Commissioner Diekman:** Madam Chair, Kathy, in current state they already have to mitigate the 3% they are over. I don't find any practical difficulty that would allow us to go to 42%. [45:47] **Commissioner Diekman:** Madam Chair, I move we recommend denial of the variance to increase impervious surface coverage from 35% to 42.2% because the petitioner has failed to provide practical difficulty. [46:33] **Commissioner Scanlon:** Second. [46:34] **Chair Ann Kurtz:** Motion made by Commissioner Diekman and seconded by Commissioner Scanlon. Any discussion? All those in favor signify by saying aye. [46:42] **Commissioners:** Aye. [46:43] **Chair Ann Kurtz:** Opposed, nay. Motion carries. Now it moves to 5C, another impervious surface variance, with Alex Sharp. [47:03] **Alex Sharp (City Planner):** Thank you, Chair and Commission. This is for 12787 Durham Way, owned by Alexis and Scott McCabe. This property is in the Shoreland Overlay Zone, which only allows 25% impervious coverage and has no 5% overage provision. This property is near Farquhar Lake. The home was originally built at 35% coverage, which is already non-compliant with the 25% rule, but that wasn't created by the current owners. The applicants want to add a pool and deck, which would bring them to 43.91%. They propose a drain tile system and a French drain to mitigate. However, there's a steep slope (14 to 20 feet of grade change). Staff is concerned that a French drain won't effectively treat the water on such a slope. The DNR recommended denial. Without an engineered system proving it improves existing conditions, staff recommends denial. [58:37] **Commissioner Diekman:** Chair Kurtz, Alex, can you confirm the Shoreland Overlay was in place before the house was built? [58:48] **Alex Sharp (City Planner):** Yes, though it may not have been enforced when the home was constructed. [59:22] **Commissioner Pruitt:** Madam Chair, Alex, has there been a third-party engineer involved for the applicant to run calculations? [59:45] **Alex Sharp (City Planner):** Not to my knowledge. [1:00:53] **Commissioner Scanlon:** Madam Chair, Alex, Farquhar Lake is under a lot of pressure regarding water quality. We've spent years making sure runoff is handled. It has to be done by an engineering firm to prove it works. [1:01:46] **Commissioner Mahowald:** Thank you, Madam Chair. Following up on that—on a steep incline, what mitigation methods are even available? [1:02:18] **Alex Sharp (City Planner):** I'd refer to a third-party engineer for that. The hillside is very steep and already quite wet. [1:05:37] **Commissioner Schindler:** I’m not in favor of a variance with how high that percentage goes. Is the 5% mitigation rule something that could be applied here? [1:06:05] **Alex Sharp (City Planner):** That would have to be a policy decision. Stormwater is unique because you *could* technically mitigate it with an underground cistern, but it still changes the character of the neighborhood if you cover 99% of a lot. Staff can't support this without an engineered design. [1:15:17] **Commissioner Scanlon:** Madam Chair, Alex, most homes in that 1980s neighborhood probably exceed 25%. If we approve this, it just keeps putting pressure on the lake. [1:19:11] **Scott McCabe (Petitioner):** Good evening. I have photos of the vegetation behind our lot. There's 30 feet of vegetation between our wall and the park. We are proposing a 6x6x3 rain garden, which is more than we need to mitigate the increase. Our pool company and landscaper use these systems often. I worked with a city engineer who gave me the math to use, and we believe this holds double the amount of an inch of rain. We’re trying to do this without spending thousands on a third-party engineer. [1:29:08] **Commissioner Diekman:** Madam Chair, I move we recommend denial of an 18.91% impervious coverage variance at 12787 Durham Way based on the findings in the staff report. [1:29:35] **Commissioner Scanlon:** Second. [1:29:40] **Chair Ann Kurtz:** Motion made by Commissioner Diekman, seconded by Commissioner Scanlon. All those in favor signify by saying aye. [1:29:45] **Commissioners:** Aye. [1:29:47] **Chair Ann Kurtz:** Opposed, nay. Motion carries. Brings us to Mr. Tim Benetti, other business. [1:29:49] **Tim Benetti (Community Development Director):** Thank you, Madam Chair. Upcoming meetings are September 6th and 20th. Council meetings are August 24th and September 14th. We will notify the applicants of when they will be on the Council agenda. [1:30:54] **Chair Ann Kurtz:** Motion to adjourn? [1:30:55] **Commissioner Schindler:** Move to adjourn. [1:30:56] **Commissioner Scanlon:** Second. [1:30:57] **Chair Ann Kurtz:** All in favor? Aye. Adjourned. [Music]