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July 6, 2010 Memo for Gem Lake City Council Page 3 of 4 1 do not view the installation of a beach sand layer as "storage" of material, just as we commonly don't view spread -out mulch in plant beds or pea gravel on walkways as "stored." The material is being put to use. Additionally, the stated restriction is limited to preventing the storage of materials "intended for the creation of compost," which would not apply to a beach sand blanket. Since it's my opinion that the sand layer is not a "structure," there is no other restriction in Shoreland Zone 2 which would alter the generally applicable R-1 zoning rules.I My opinion, as stated above, is that the beach is a permitted accessory use on an R-1 property. 2. What Procedural Requirements Apply in this Situation? Either the landowner or the contractor needed to obtain a grade & fill permit prior to installing this beach sand layer. Section 21.6.3 of the Shoreland chapter mandates a City plan review and permit before any grading, filling and excavating or changing the topography can take place. There is no stated de minimis exception to this requirement; there is also no minimum -volume exception to grade & fill permit requirements under the Building Code. Gem Lake's grade & fill permit schedule begins at 400 cubic yards, as that is the threshold for a "land reclamation" conditional use permit under Section 16.10.1 of the Zoning Ordinance. As I noted in the facts, it does not appear that there is anywhere near 400 cubic yards of material involved in either job (at 6" depth, the beach would need to cover 2400 square yards to use 400 cubic yards of sand). The rates applicable to a 400 cubic yard installation would apply to any required application involving less than that amount. The authority for a grade & fill permit comes from the building code, meaning that it is not a discretionary permit, or conditional permit. if the applicant produces the required documentation, and the work is permitted in the zoning district, the applicant is entitled to the permit. The other stated "prior approval" requirements from the Shoreland chapter do not apply to this work in Shoreland Zone 2, given my reading of the restrictions (again, assuming no vegetation was cut or removed for the project). Similarly, the DNR regulation's requirement of local notification would appear not to apply when the beach does not require putting fill material on the "water" side of the accepted waterline. 3. What are the City's Enforcement Options? The preferred option is to require the landowners to submit the material required for a Grading & Filling Plan under Section 21.6.3 of the Zoning Ordinance and to pay the specified plan review and permit fees. The owners must also pay the "special inspection fee" under Ordinance 78B, 1 This statement is made taking the owners' and landscaper's word that no vegetation was cut or removed in order to install the beach sand. Clearly, if the Council makes a factual finding that vegetation was cut or removed by the owner or landscaper, there would be a clear violation of the Shoreland chapter (at 21.4.1 and possibly 21.3.3) and possibly DNR regulations if plants at the waterline were affected. Based on the facts as I know them, if any vegetation removal took place it seems like it would have to extend into the waterline, and thus the City's first enforcement option would be to report the violation to the DNR. The City's next option would involve 1J misdemeanor citation for failure to obtain approval and/or an order to restore vegetation beyond that "minimally necessary" to allow the beach installation.