Lakeshore Protection Committee

CITY OF WHITEFISH LAKESHORE PROTECTION COMMITTEE Date: Wednesday, February 9, 2022 Place: Great Northern Conference Room Recorded By: Dabney Langellier Members Present: Donna Emerson Peggy Brammer Roger Rowles Nancy Schuber Toby Scott Tara Zimmerman Members Absent: One vacant position Staff Present: Angela Jacobs Jessica Nymark Tara Osendorf 1. CALL TO ORDER Summary: Toby Scott, the committee chair, called the meeting to order at 6:00 pm. 2. AGENDA CHANGES Summary: After the Board comments on any public hearing item, Toby would like to open the floor to public comment. This will be the case on any future meetings as well. 3. APPROVAL OF DECEMBER 8, 2021 MINUTES Summary: Members reviewed the minutes of December 8, 2021. ACTION: Nancy Schuber made a motion to approve the minutes of December 8, 2021. Donna Emerson seconded the motion. All were in favor and the motion passed unanimously. 4. GENERAL PUBLIC COMMENT Summary: Cynthia Ingelfinger with the Whitefish Lake Institute introduced herself. If she or the Institute can be of help, they are an available resource. In addition, the Institute would like to be involved when the Committee and staff update the Lakeshore regulations. Members expressed interest in a refresher workshop from the Institute. In addition, Mark Lorang recently presented at a meeting in Polson on dynamic beaches. Jessica has the notes and will make these available to the members of the Committee. 5. OLD BUSINESS Summary: None. 6. WORK/TRAINING SESSION Summary: Angie presented some basic information on Robert’s Rules and Variances. She provided a Robert’s Rules cheat sheet and a copy of her power point. Angie discussed the following key points with Committee members and staff: Page 1 of 9 Lakeshore Protection Committee February 9, 2022 Robert’s Rules • Everyone has the right to speak once before anyone speaks twice. • Everyone has the right to know what is going on. • Avoid side bar conversations. • You may interrupt a speaker for the following reasons: o You are wondering about some of the facts under discussion: “Point of Information”. o You are confused about some of the parliamentary rules: “Point of Parliamentary Rules”. o You can’t hear, safety reasons, comfort, etc.: “Point of Personal Privilege”. o If you disagree with the chair’s decision: “I appeal for the decision of the chair”. • Procedure for handling a motion: o There must be a first and second motion before an item can be discussed. o A motion can be seconded for the purpose of discussion. • Amending a motion: o Motion made and seconded for approval on item as presented. o Motion made and seconded for amendment. If the amendment is not seconded, it fails. o Vote on the amendment. o Then, vote on the original motion. o Additional conditions are considered an amendment to the approval. Variances • All of these criteria should be met in order to grant a variance: o Variance must not be contrary to the public interest; o Literal enforcement of the regulation must result in an economic hardship due to conditions unique to the property; o Spirit of the ordinance must be observed and substantial justice done. • The Lakeshore Committee members are acting as fact finders. The Committee makes a recommendation to City Council and the Council makes the decision. • Undue hardship used to mean the owner could not use the property. That is not the case anymore. Now, what the owner could do without a variance is considered. • If a previous owner could be entitled to a variance, then the current owner is potentially eligible as well. • Unique circumstances: o Personal circumstances usually do not qualify. The variance should be based on the property, not the person or owner. • Adverse impact on the lake or lakeshore: o Is it going to negatively impact public interest or the lake? And you have evidence to support that. o The highwater mark is where the owner’s property ends. If you are below the highwater mark, then you are on public land. • If there is not a unique circumstance and no undue hardship, but the request is beneficial to the lake and the community, then a variance is acceptable. Staff is aware that the Committee’s request to discuss enforcement of Lakeshore regulations has not been addressed. This will be discussed at a later date. 7. NEW BUSINESS A. WLP 22-W04 – CAROL & RICHARD ATKINSON Summary: The applicants are proposing to mitigate further erosion from occurring on a steep hillside by anchoring soil in place with boulders, topsoil, and native plant material at 400 Dakota Avenue. Page 2 of 9 Lakeshore Protection Committee February 9, 2022 Jessica Nymark summarized the staff report for members, noting a couple of key points: • The area of concern is just below an existing non-conforming fence. The applicants want to preserve the fence from collapsing. Since it is non-conforming, it cannot be reconstructed, but can be repaired. • All native plantings will be sourced from the Center for Native Plants. • All work done in the Lakeshore Protection Zone (LPZ) will be done by hand tools. Recommendation: Staff is recommending approval of WLP 22-W04 with the 16 conditions of approval as noted in the staff report. Members discussed the application with Jessica, clarifying the following items: • Boulders would be brought in from a local quarry. • Soil and other boulders will come from other locations on the lot. Carol Atkinson was present along with Shiva Solaimanian and Greg Gunderson of the Center for Native Plants. They had no additional comments on the project and the Committee had no questions for them. ACTION: Donna Emerson made a motion to approve WLP 22-W04. Peggy Brammer seconded the motion. All were in favor and the motion passed unanimously. B. WLV 22-W03 – CAROL & RICHARD ATKINSON Summary: The applicants are requesting multiple activities in the lake and lakeshore protection area with a standard and variance application for 404 Dakota Avenue. Jessica Nymark summarized the staff report for members, noting a couple of key points: • This lot is to the north of the previous application and owned by the same family. Standard application for a one-time beach gravel application. • Additional constructed area is not requested with this application. • The applicant is proposing to place 225 square feet of 1-inch washed, round, river rock along the water’s edge to provide safer and easier access to the lake. • The property is allowed 13.8 cubic yards of fill. This part of the request is for 3.15 cubic yards of material. • The proposed area is predominantly rock already. Minor Variance for placement of gravel in a predominantly invasive vegetated area. • The proposed area is above the highwater mark. • The total volume of this gravel application is 1.4 cubic yards. Still well under the 13.8 cubic yards of fill allowed. • This secondary beach gravel application is intended to be used as a flat surface to place non-permanent chairs. As the existing beach is too sloped and uneven for the applicants to access and sit comfortably. • The applicant provided a report from botanist Jen Asebrook for Calypso Ecological Consulting. The proposed area is predominately vegetated with non-native and invasive plant species. • There is an existing game trail that will stay as is with the pea gravel in place. • The request for a variance addresses three sections of the regulations: o The preservation of native plants o The application of gravel is allowed only where the predominant existing surface is gravel. o Gravel not permitted in areas where the sites predominantly covered by vegetation Considerations of a Minor Variance • The hardship exists due to the applicants age and topography. Page 3 of 9 Lakeshore Protection Committee February 9, 2022 • The applicant’s alternatives are to do nothing or just place gravel at the shoreline. However, their enjoyment and safety of their lot would not improve. • The gravel application would not diminish water quality or habitat. Only permeable and washed materials would be used. • There are no safety hazards with this request and no permanent structures proposed. • The requested variance would have no affect on public benefit. Recommendation: Staff is recommending approval of the requested lakeshore construction permit and corresponding minor variance (WLV 22-W03) with the 16 conditions of approval as noted in the staff report. Members discussed the application with Jessica, clarifying the following items: • Both lots (400 Dakota & 404 Dakota) are the same dimensions. • There was a previous gravel placement on 400 Dakota Ave, not 404 Dakota Ave. • Originally, the applicants applied for a patio. Upon staff recommendation, the applicants changed their request to a gravel pad. • The variance is for gravel placement in an area that is predominantly vegetated. Carol Atkinson was present along with Shiva Solaimanian and Greg Gunderson of the Center for Native Plants who spoke on behalf of the application and noted the following: • The flat area for the proposed gravel pad is framed by Cottonwoods and a Birch tree. • A lot of the plant species in this area are pioneer species that are common in disturbed areas. Likely the result of the sewer main that was installed in this area in the 1960’s. None of the mature native plant species will be removed. • From the water you can barely see this flat patch of land. ACTION: 1. Peggy Brammer made a motion to approve WLV 22-W03 with the 16 conditions listed in the report. Donna seconded the motion. 2. Peggy Brammer made a motion to amend the motion and deny the variance portion of a gravel application. Nancy Schuber seconded the motion. Peggy noted this is not a unique circumstance with the topography around the lake. The undue hardship must be relative to the land, not the owner. Although this is a relatively minor request, it does not meet the variance criteria. The motion to approve the amendment failed (Toby, Donna, & Roger opposed). The motion to approve the application WLV 22-W03 as is failed (Tara, Nancy, & Peggy opposed). The vote constitutes as a denial with a 3-3 vote. There must be 4 votes for a motion to pass. The application will go to City Council with the Committee’s discussion and vote. In addition, the applicant will have the opportunity to speak to their request at the City Council meeting. C. WLV 22-W05 – BRAD & DANA CHELF Summary: The applicants are requesting a dock variance to exceed the allowable constructed area and length at 1500 W Lakeshore Drive. Jessica Nymark summarized the staff report for members, noting a couple of key points: • The applicant has an existing dock in place that is 66 feet in length with 531 square feet of constructed area. The lot is eligible for 576 square feet of constructed area. • The applicant is proposing to extend the dock an additional 65 feet for a total of 131 feet in length and 964.55 square feet in constructed area. This would be 388.55 square feet over the allowed amount. • The dock would also extend beyond the riparian boundary. Page 4 of 9 Lakeshore Protection Committee February 9, 2022 • The variance request is to: o Exceed the maximum constructed area; and o To extend the dock over 100 feet in length. • The water depth profile was submitted after the application. The staff report has the most up to date information. • The water depth profile shows the existing 66-foot dock has 2 feet 2 inches in depth. At 100 feet, the depth is 2 feet 6 inches. At 131 feet, the depth is 3.3 feet. The applicant would gain 5 inches of depth at 100 feet and 14 inches of depth at 131 feet. Considerations of a Minor Variance: • During low water the applicants are unable to launch their boats or use the dock, but there is adequate depth during average water. • It is a unique situation with the riparian lot lines because of the shape of the lot. • Dredging to obtain more depth is not permitted. • No alternative exists to meet our current standards. However, the dock could stay at its current length and achieve depth during average water level seasons. • Per the City’s Lakeshore regulations, docks over 100 feet can interfere with navigation. However, with aerial views, it does not look like the dock extension would interfere with the neighboring docks. Recommendation: Staff is recommending denial of WLV 22-W05 since the proposed length of the dock would interfere with navigation for neighboring docks, cross riparian boundaries, and the current 66-foot length achieves a 4-foot depth at average water levels. Members discussed the application with Jessica, clarifying the following items: • The City’s Lakeshore regulations allow owners to use Whitefish Lake Services to move the dock out further as the water level drops • If the applicants were to extend the dock to 96 feet in length, they would still be over the constructed area by 100 feet. • Toby Scott asked what kind of watercraft were used with the dock; applicant stated a pontoon boat and 2 jet skis were used. T. Scott stated that those craft do not need significant depths to dock Cate Walker, with Bruce Boody Landscape Architect, spoke on behalf of the application and noted the following: • The owners are interested in maintaining access to the lake. • This is currently a vacant lot, and the owners are hoping to construct in the future. • The lakebed is very shallow in this location and the owners had issues navigating up to the dock last year. ACTION: Donna Emerson made a motion to deny WLV 22-W05. Nancy Schuber seconded the motion. All were in favor and the motion passed unanimously. D. WLV 22-W06 – STEVE & STACIE GORDER Summary: The applicants are requesting a minor variance to remove 620 square feet of existing non-native lawn surface and replace it with gravel in a predominantly vegetated area. Additionally, they are requesting a standard permit to remove a tree and install a new dock within the Lakeshore Protection Zone (LPZ). Both requests are for the property located at 1608 W Lakeshore Drive. Jessica Nymark summarized the staff report for members, noting a couple of key points: Standard application for a dock under 60 feet and the removal of a tree. • The birch tree has been confirmed dead by an arborist and is a safety hazard. Page 5 of 9 Lakeshore Protection Committee February 9, 2022 • There are other large trees within 8 feet of this birch tree. Therefore, no replacement tree is required. • The proposed “F” shaped dock would be a total of 619 square feet, which is 5 feet under the allowable constructed area for this lot. • Public comment was made about that the “F” wing can only be 30% of the constructed area. This comment is incorrect, the dock proposal is within the standards. Minor variance to remove non-native lawn and replace it with gravel. • The gravel application would not exceed the allowable 9.7 cubic yards of fill. • The lawn would be removed by hand. • In lieu of the lawn being replaced with native plantings, gravel is requested as an alternative. • The request for a variance addresses two sections of the regulations: o Application of gravel is allowed only where the predominant existing surface is gravel. o Grandfathered lawns must be replaced with native vegetation. Considerations of a Minor Variance: • The high ground water in this area makes mowing and weeding very difficult. In addition, this increases mosquito breeding issues. • Alternatives: o Place gravel only where gravel currently exists and do native plantings in the higher areas. o Leave the lawn as is. • Removing the lawn and restoring it to a natural state could provide benefits to the lake. However, because there are no native plantings proposed, there would be no general and universal benefit. Recommendation: 1. Staff is recommending approval of the following activities under WLV 22-W06 with the 34 conditions of approval as noted in the staff report: • Tree removal • Dock under 60-feet 2. Staff is recommending denial of the gravel variance portion of WLV 22-W06. Alternative approval options with the 34 conditions of approval as noted in the staff report are: • Reduced gravel placement in exchange for native plantings and additional conditions of approval. • Reduced gravel placement area. Members did not have any questions for staff. The applicant, Steve Gorder (present via telephone) and Cate Walker, with Bruce Boody Landscape Architect, spoke on behalf of the application and noted the following: • This area has significant high water that comes quite far into the lot. It is wet all summer long, no matter how dry it is. • Lawn maintenance is very difficult. The applicant would like to expand the gravel placement to make this less of an issue than it already is. • There has never been a gravel placement on this lot. • This will be better for the lake and more usable for the owners. Members discussed the application with Cate, clarifying the following items: • The area above the proposed gravel placement will remain as lawn. • The highwater mark survey was done in the last year. • High water is in a set elevation of the lake and that does not change. Page 6 of 9 Lakeshore Protection Committee February 9, 2022 ACTION: 1. Peggy Brammer made a motion to approve WLV 22-W06 with the 34 conditions listed in the report. Nancy Schuber seconded the motion. 2. Peggy Brammer made a motion to amend the motion and deny any gravel placement where it is predominantly vegetated. Meaning gravel placement will only be allowed where it is predominantly gravel. Donna seconded the amendment. All were in favor of the amendment and the motion passed unanimously. All were in favor of approving WLV 22-W06 with approved amendment and the motion passed unanimously. E. WLV 22-W07 – THE LODGE AT WHITEFISH LAKE Summary: The applicant is requesting to construct stairs in riprap, do a beach gravel placement, and construct a dry-set, flagstone patio all under a standard permit. In addition, they have a minor variance request to remove a living tree. All activities are proposed for the property located at 1380 Wisconsin Avenue. Toby recused himself because he owns property at this location. Jessica Nymark summarized the staff report for members, noting a couple of key points: Standard application: • This property goes by the public marina standards for calculating constructable area, which comes to 12,795 square feet. • The proposed activities will bring this location to 12,131 square feet of constructed area. • There is no record of previous gravel applications at this location. They have put in applications, but no record of approvals. • The stairway will be built where there is existing riprap. The riprap will be rearranged around the stairs. • The stairway cannot be wider than 4 feet. • The one-time beach gravel application does not add to the constructed area. Native vegetation would have to be preserved. • Per the City’s Lakeshore regulations, the 10 foot wide dry set stone patio area is not permitted within the Lakeshore Protection Zone (LPZ). Dry set is considered an impervious surface and covering the beach with an impervious nonnative material is prohibited. • However, a dry set stone pathway, no wider than 4 feet, is permitted. If a pathway is approved: o Staff recommend requiring a condition that excavation of the pathway occurs by hand tools with no machinery allowed. o The pathway would have to be removed from the pool deck and provide vegetation in between the pool and pathway. Minor Variance: • The applicant is requesting to remove a live willow tree with the proposed planting of 3 aspen trees in its place. • The variance request addresses 2 sections of the Lakeshore regulations: o Native plant species shall be preserved wherever possible. o Healthy trees shall be preserved. • A tree report from arborist was submitted yesterday. The arborist noted Willow trees are susceptible to heart rot and failure. However, there is no change in the staff recommendation with this new information. Considerations of a Minor Variance: • The applicants want a more ascetically appealing tree, but there is no unusual circumstance or undue hardship. Page 7 of 9 Lakeshore Protection Committee February 9, 2022 • As an alternative, the applicants could leave the willow tree and plant aspen trees around it as a buffer. • The removal of the willow tree would not diminish water quality or habitat. Aspens are similar, but an established tree would be replaced with young trees. • Granting the variance would not provide a general or universal public benefit. Recommendation: 1. Staff is recommending approval of the following activities under WLV 22-W07 with the 35 conditions of approval as noted in the staff report: • Stairs • Beach gravel placement 2. Staff is recommending denial of the flagstone patio and tree removal portion of WLV 22-W07. Approval of the flagstone patio would be recommended with a pathway amendment and the 35 conditions of approval as noted in the staff report. Members discussed the application with Jessica, clarifying the following items: • The proposed patio is connected to the pool deck and 10 feet wide. • A pathway can only be 4 feet wide and a buffer would have to be put in place as well. Cate Walker, with Bruce Boody Landscape Architect, discussed the application with the Committee members and noted the following: • The gravel placement is basically the full length of the property from the riprap wall to low water. • The original application included the area to the north of the dock, but that is a wetland and a gravel application there would not be appropriate. • The purpose of the staircase is for access to the beach and create more of a swim beach at the Lodge. • The purpose of the patio is unknown. The applicant stated they wanted to expand the pool deck area if at all possible. ACTION: Donna Emerson made a motion to deny WLV 22-W07. Roger Rowles seconded the motion. Peggy Brammer noted the request for the stairs and gravel application follow the Lakeshore requirements. In addition, a pathway seems acceptable instead of a patio. The motion to deny the application WLV 22-W03 fails (Tara, Nancy, Peggy, & Roger opposed). ACTION: 1. Nancy Schuber made a motion to approve WLV 22-W07 with the 35 conditions listed in the report. Peggy Brammer seconded the motion. 2. Nancy Schuber made a motion to amend WLV 22-W07 to approve the stairs and beach gravel application and deny the patio placement and tree removal. Tara seconded the motion. All were in favor of the amendment and the motion passed unanimously. All were in favor of approving WLV 22-W07 with approved amendment and the motion passed unanimously. 8. STAFF COMMENTS Summary: Ben Cavin has resigned from the Committee. Therefore, there is one vacant position. Staff will double check what criteria must be met for this position. The next meeting will be on March 9th. There are no applications at this time. However, Jessica will possibly be at a conference, so there is potential this meeting will need to be rescheduled. Toby will be out March 9th as well. Page 8 of 9 Lakeshore Protection Committee February 9, 2022 9. BOARD COMMENTS Summary: Toby appreciated the new setup and layout of the staff report. 10. ADJOURNMENT ACTION: The meeting is adjourned at 8:24 pm. Page 9 of 9