Adopt Resolution #20-256 Approving the Conditional Use Permit for Floodplain Fill at 7349 168th Cir NW.; Case of John and JoDell Seaman
 

The purpose of this case is to consider a request from John and JoDell Seaman (the "Homeowners") for a Conditional Use Permit (CUP) to fill within a floodplain at 7349 168th Cir NW (the "Subject Property"). Staff became aware of the retaining wall through the City's Code Enforcement program in May 2020. The Applicant has stated that the intent of the fill was to address erosion occurring in their back yard. There may have been erosion issues along the trail, but the City does not have any documentation of this item. This is one potential solution to this issue amongst other alternatives (some requiring fill, some not). At the end of the day, the Property Owner has the ability to make this request to the City for consideration. The City can choose to approve or deny at this point. Staff is comfortable with any solution so long as said solution meeting applicable requirements. 

In addition to working through alternatives with the Property Owner, Staff has been seeking guidance from the Minnesota DNR office in terms of floodplain regulations and options. This is a very complex case that includes numerous layers of government regulation.

This step is the result of the Settlement Conference related to the Code Enforcement Case. The City is attempting to find a compromise. The intent of tonight is not to debate the boundaries of floodplain or conservation easement.

This case is focused on the Floodplain encroachment. In addition, this area is encumbered by a Conservation and Trail Easement held by the City, secured with a grant form the State of Minnesota, prior to the development of the Brookfield Neighborhood. The City Council will address the easement encroachment issue when they receive the case for review. If approved, partial repayment back to the Legislative-Citizen Commission on Minnesota Resources would be required. 

While this individual case may have minor implications to floodplain and Conservation Easement, it does open the door to a number of other requests. Once the City has a better handle on updated floodplain modeling (current model is dated in the 1970s and is now inaccurate), Staff plans on holding a neighborhood meeting to discuss broader options while still maintaining a majority of the floodplain and Conservation Easement. 

Staff has sent notifications to Property Owners within 350 feet of the Subject Property as indicated by Anoka County Property Records via Standard US Mail. A Public Hearing was included in the Anoka County UnionHerald. 

Property Information
The Subject Property is a single family home in the Brookfield Neighborhood, in the 8th Addition. This home abuts the Trott Brook Corridor to the North, which is encumbered by a Conservation and Trail Easement and has floodplain (floodway). Homes in the Brookfield 8th Addition (final phase) homes smaller backyard space compared to other parcels in the neighborhood due to the Conservation and Trail Easement as well as Floodplain. The Homeowners put in a retaining wall within the Floodplain and Easement without specific City approval. In 2019, prior to construction, Staff had forwarded applicable restrictions to a contractor working on behalf of the Property Owner. That being said, there are options to consider that would allow the retaining wall and fill to remain. The retaining wall is about one foot off the public trail in the backyard. The backyard is designated as floodplain by the DNR, which has specific rules about putting in fill and modifying existing grades (slopes).

If the City desires to allow this encroachment, assuming successful attainment of a No Rise Certificate from FEMA, the City will also need to process an amendment to the Conservation and Trail Easement.

Conditional Use Permit
The City is able to grant the homeowner a Conditional Use Permit (CUP) for putting fill (dirt) in the floodplain area (backyard) under certain conditions. The biggest condition is that the fill cannot change the rise across the floodplain, which is called a no-rise certificate. Modeling is completed using the slopes and fill information to determine if the fill created more than a 0.0% change across the site. It is a strict and hard to meet level, but not impossible. Staff is currently working to complete the modeling. After significant investigation and collaboration with the DNR, it has been determined that the existing model for this area needs to be updated. Unfortunately, this has created delays. Staff is working with one of the City's consulting planners/engineers to assist in updating this model that will allow the City to more quickly process these types of requests in the future. 

Required Items to Keep Retaining Wall

• Amend Conservation and Trail Easement (Handled separately - items outlined in attached document)
  • Range of settlement likely $500 - $1,000. Staff will bring final vacation agreement and totals to a future City Council meeting.
  • As part of this case, Staff is asking for direction from the City Council to begin the process of vacating hte conservation and trail easement.
• Conditional Use Permit (CUP) for Fill within a Floodplain (Tonight's case)
  • Can be granted if fill resulted in a 0.0% no-rise certificate (determined via modeling)
  • Staff is currently working on the modeling but is lacking required data

Options are laid out more extensively in an attachment.

Policy Question

• If modeling shows no-rise (0.0 rise or less), is the City Council supportive of a Conditional Use Permit for the fill placed in the floodplain (backyard of Subject Property) for the retaining wall?

Staff is handling this update as part of regular duties. Additionally, due to the broader policy implications along this corridor/in this neighborhood, Staff has taken on the necessary floodplain modeling that would ordinarily be the responsibility of the Applicant. 

Due to the degree of policy/legislative discretion of this case, Staff needs policy direction before formulating a Staff Recommendation.

Planning Commission made a contingent recommendation of Approval for the Conditional Use Permit, based upon no rise certificate from FEMA.

Motion to Adopt Resolution #20-256 Approving the Conditional Use Permit for Floodplain Fill at 7349 168th Cir NW and directing staff to start process to vacate part of the conservation and trail easement on the Subject Property and bring back a settlement agreement.