|The Subject Property is approximately ninety-four (94) acres in size and of that, about thirty (30) acres is wetland. The City's Natural Resources Inventory (NRI) identifies multiple, moderate quality, natural areas within the Subject Property, including both Oak Forest and Dry Prairie. The Applicant has attempted to minimize impacts to natural resources by limiting the number of proposed lots (only proposed nine ) and by proposing the public road to generally follow the driveway path that led to the former residence on the Subject Property (this helped in terms of tree preservation).
There are three (3) lots, all on the north side of the proposed public road, that access is restricted due to the location of small pocket wetlands. The Applicant did relocate the proposed driveway for Lot 8, Block 1 (south side of proposed road), which eliminated the need for a variance on that lot. While it appears there may be space for a house pad on Lots 4-5 south of the small wetlands, it would be extremely tight considering the minimum front yard setback of forty (40) feet. More importantly, this would almost assuredly lead to future issues with encroachment into not only the wetland setback but likely the delineated wetlands as well. Staff has seen this play out in previous developments where homeowners wish to extend their 'usable' yard for play space and accessory buildings.
The Applicant has proposed ten (10) foot wide driveways, at least from the road through the encroachment areas, to minimize encroachment. On Lot 3, the impact is only to the setback area. On Lot 4, 178 square feet of wetland proper would be impacted, along with the encroachment into the wetland setback. On Lot 5, ninety-two (92) square feet of wetland proper would be impacted in addition to the wetland setback encroachment. Cumulatively, the wetland impacts (270 square feet) fall under the de minimus exemption, per the Wetland Conservation Act (meaning no mitigation is required). Furthermore, the Applicant has noted that additional fill could be placed (still under the de minimus exemption) to create the upland area to meet the sixteen and a half (16.5) foot wetland setback, but feels that would be contradictory to the spirit of the Wetland Conservation Act.
Staff has added several conditions to the attached Resolution concerning the proposed driveways. First, the driveways for Lots 3-5, plus Lot 8, shall be installed by the developer, at least through the encroachment area. This ensures that the driveways will comply with what has been proposed in terms of width and location of the encroachment. Secondly, that Lots 3-5 will be restricted to a single driveway access point (the zoning district would allow for two access points) to eliminate future encroachments. Finally, that culverts are placed under the three (3) driveways to ensure ecological connectivity between the wetlands.
The Environmental Policy Board (EPB) is reviewing this request at their July 19, 2021 meeting. Staff will provide a verbal update of their recommendation at the meeting.
When contemplating a variance, a three (3) factor test must be applied to determine practical difficulties:
- Reasonableness - The project is reasonable, as it is proposing nine (9) total lots over ninety-four (94) acres of land, of which, about thirty (30) acres is wetland. The proposed impacts of the three (3) driveways on actual wetland area is only 270 square feet, which is under the de minimus exemption outlined in the Wetland Conservation Act (WCA). It may be possible to add more fill within the wetland areas and still remain within the de minimus exemption; however, that does seem contradictory to the purpose of the WCA.
- Uniqueness - There are unique conditions applicable to the Subject Property. Approximately 1/3 of the Subject Property is encumbered with wetland and floodplain. The Applicant has proposed a project that really does minimize impacts to natural resources. Access to the larger, buildable areas of Lots 3-5 (where encroachment in the form of fill, sod, etc.) is obstructed due to the location of several small, pocket wetlands, and the required wetland setback. The project is attempting to minimize impacts to existing natural site conditions (wetlands, flood plain, tree cover).
- Essential Character - The proposed subdivision would not alter the essential character of the neighborhood. In fact, the project includes far fewer lots than would be allowed by City Code. The current configuration has the least impact to existing site conditions and includes lot sizes more compatible with surrounding properties. Furthermore, it is consistent with the community's desire to retain rural character.
Alternative 1: Approve the requested variance to wetland setback requirements on Lots 3-5 to accommodate driveway access to building sites. Locating the house pads north of the small, pocket wetlands (but south of the large wetland complex) provides more wide open space for future homeowners to establish a 'usable' yard without inadvertently filling wetland area. Overall, this project has strived to limit impacts to natural resources and attempted to retain rural character by proposing fewer total lots, that by and large, far exceed minimum lot size. Any redesign of the Preliminary Plat would likely result in greater impacts to the natural resources on the Subject Property. Staff supports this alternative.
Alternative 2: Deny the requested variance. Should the requested variance be denied, the Applicant would need to revise the Preliminary Plat to eliminate encroachment into the wetland setback areas on Lots 3-5, which most likely would result in greater impacts to natural resources. The proposed impacts from the three (3) driveways fall under the de minimus exemption regarding actual wetland impacts. The location of the small, pocket wetlands restrict access to the larger, buildable areas on these lots, where there is much less likelihood of wetland encroachments by the future homeowners. Staff does not support this alternative.