6. Board of Adjustments lakeshore setback variance 6605 Horseshoe Curve IC iTY O F PC DATE: Aug. 26, 1991
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CIIAIIHAE11 CC DATE:
1-7/' CASE CASE #: 91-9 VAR
By: A1-Jaff:v
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1 STAFF REPORT
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PROPOSAL: A 17 Foot .Shoreland Setback Variance to the Required 75
IFoot for the Purpose of Constructing a Two Terraced Deck
1 Q LOCATION: Lot 2, Block 1, Sathre's Addition - 6605 Horseshoe Curve
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I ---in APPLICANT: Ron Harvieux
6605 Horseshoe Curve
Chanhassen, MN 55317
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PRESENT ZONING: RSF, Residential Single Family
1 ACREAGE: •
IDENSITY:
ADJACENT ZONING AND
LAND USE: N - RSF; single family
IS - Lotus Lake
Q E - RSF; single family
17; W - RSF; single family
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WATER AND SEWER: Available to the site.
I12 PHYSICAL CHARACTER. : The site is a riparian lot to Lotus Lake,
heavily wooded with mature trees and contains
an existing single family residence.
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I2000 LAND USE PLAN: Low Density Residential
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Harvieux Variance
August 26, 1991
Page 2
APPLICABLE REGULATIONS
The Shoreland Ordinance requires that all structures be set at a
distance of 75 feet from the high water mark of a lake.
' BACKGROUND
On September 6, 1989, the City issued a building permit to the
applicant residing at 6605 Horseshoe Curve, allowing him to
11 construct a deck with an 80 foot setback from the high water mark
of Lotus Lake. This permit was for one deck only and met all
requirements set by city ordinances.
' It was the applicant's assumption that he could add two additional
decks (which will be referred to as Phases II and III) if he
schedules framing and footing inspections. The applicant did not
apply for an additional permit for Phases II and III. The Building
Department was called for inspections on the two additional decks.
Through an oversight on their part, several inspections were
' conducted before it was realized that the additional decks had no
permit and, in fact, they encroached into the shoreland setback.
' On July, 9, 1991, Building Inspector Steve Torrell was conducting
an inspection, at the subject property and noticed that Phase III
was at a close distance from the lakeshore, which lead him to check
the building permit file. It was realized that a building permit
' had not been issued for decks Phase II and III. The Building
Department then issued a Stop Work Order and brought the matter to
Planning Department's attention (refer to attached memo from Steve
Kirchman, Building Official) .
ANALYSIS
' This is an after the fact variance request. The applicant is
requesting a 17 foot shoreline setback variance to allow for a deck
to be set approximately 58 feet from the high water mark of Lotus
Lake. The Shoreland Ordinance requires all structures be set at a
minimum distance of• 75 feet from the high water mark.
Staff contacted the Department of Natural Resources and visited the
site with their staff. They advised the city to allow Phase II to
remain as it only encroaches 5 feet into the required 75 foot
setback. They further advised that Phase III be removed completely
due to the close proximity to the lake and the fact that all homes
within 500 feet of this property have a minimum setback of at least
100 feet from the lake. They indicated that allowing Phase III
would set a precedent in the surrounding area. Furthermore, the
Department of Natural Resources has the option of taking the City
to court should the city approve deck Phase III (Attachment #2) .
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Harvieux Variance
August 26, 1991
Page 3
A variance may be granted by the Board of Adjustments and Appeals
or City Council only if all the following criteria are met:
a. That the literal enforcement of this Chapter would cause undue
hardship. "Undue hardship" means the property cannot be put
to reasonable use because of its size, physical surroundings,
shape or topography. Reasonable use includes a use made by a
majority of comparable property within five hundred (500) feet
of it. The intent of this provision is not to allow a
proliferation of variances, but to recognize that in developed
neighborhoods pre-existing standards exist. Variances that
blend with these pre-existing standards without departing from
them meet this criteria. 1
* Staff conducted a survey within 500 feet of the
surrounding area and discovered that all structures had
a minimum setback of at least 100 feet from the high
water mark of Lotus Lake. The required setback must be
maintained. Furthermore, approval of this variance will
depart from previous existing standards of the
neighborhood.
b. That the conditions upon which a petition for a variance is
based are not applicable, generally, to other property within
the same zoning classification.
* The request, if approved, will create a standard that
deviates from the surrounding property.
c. That the purpose of the variation is not based upon a desire I
to increase the value or income potential of the parcel of
land.
• The purpose of the variation is not based upon a desire 1
to increase the value or income potential of the parcel
of land.
d. That the alleged difficulty or hardship is not a self-created
hardship.
* The difficulty or hardship is a result of the applicant
not following proper procedure and the city's oversight.
Not having 3 decks does not constitute a traditional
hardship. The applicant has full use of his property
which includes a single family residence and one legal
deck.
e. That the granting of the variance will not be detrimental to
the public welfare or injurious to other land or improvements
in the neighborhood in which the parcel of land is located. I
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Harvieux Variance
August 26, 1991
Page 4 -
r * Granting of this variance will result in setting a
precedent within this neighborhood and introducing new
reduced setbacks.
f. That the proposed variation will not impair an adequate supply
of light and air to adjacent property or substantially
' increase the congestion of the public streets, or increases
the danger of fire, or endanger the public safety or
substantially diminish or impair property values within the
neighborhood.
* The proposed addition will not increase congestion of
the public street or increase the danger of fire, or
' endanger the public safety or substantially diminish or
impair property values within the neighborhood.
Staff fails to find a hardship. Approval of this proposal will
result in setting a new precedent for this neighborhood as well as
implicating the city with the DNR. However, we also recognize that
this problem does not appear to be a result of either Mr. Harvieux
' or the City acting in bad faith. Given the background of this
situation, the MnDNR's position and past city practices, we support
the issuance of the 5 foot setback variance to allow the second
deck to remain. Unfortunately, we find we cannot support the third
deck. We are therefore recommending that it be removed.
' Update - Board of Adjustments and Appeals:
The Board of Adjustments and Appeals reviewed this item at their
August 26, 1991 meeting. Ultimately, a motion to approve a
variance to allow all three decks to remain failed on a positive
2-1 vote, thus the request is being appealed to the City Council.
The two board members who voted in favor of the request cited the
City Building Inspector's responsibility in creating the variances
and the homeowner's attempts to comply to the best of his ability
and rely on advice given by city officials. Board member Watson
' was the dissenting vote who believed the variances were simply too
excessive and that she would have preferred that the third and
closest deck be eliminated as originally proposed in the staff
report.
Peter Beck, the attorney representing the Harvieuxs, indicated that
in his review of state law and DNR policy that their implied
potential threat of suing the city if the variance is granted was
misleading, since in his opinion they did not have the authority to
undertake this action. City Attorney Knutson was present and
generally appeared to agree with Beck that this was the case. Beck
then said that even if there was some potential of litigation that
his client would agree to indemnify and hold harmless the city
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Harvieux Variance
August 26, 1991
Page 5
against any litigation or action that may occur from the DNR if the
variance is approved.
Since the board meeting, staff has held some discussions with Ceil
Strauss of the DNR and with Roger Knutson, City Attorney. Ceil
Strauss still maintains the belief that the DNR has a right to
respond to variances that are granted by the city since the law
gives them oversight authority. Roger Knutson is researching the
matter further, but now believes that there may be some truth to
DNR's position. We will have further information on this available
at the Council meeting. I
Staff fully recognizes the extenuating circumstances that exist
with this request and wishes that the ordinance gave us some
flexibility on these matters. However, we find that we are
continuing to recommend that the variance be granted only for the
second deck. However, should the City Council wish to approve the
variance for all three decks as recommended in the failed motion
from the Board of Adjustments, we have provided a list of findings
of fact and conditions for your review and approval. The
conditions include items proposed by staff and, in addition, those
that were suggested by the applicant's attorney in the interests of
resolving this issue.
RECOMMENDATION 1
Staff is recommending that the City Council deny Phase III of
Variance Request #91-9 and approve Phase II of the variance request 1
for a 5 foot shoreland variance with the following conditions:
1. The applicant shall obtain a building permit for deck Phase
II.
2 . All corrections required by the Building Inspections Division
to the existing deck (Phase II) must be completed prior to
using the deck.
ATTACHMENTS '
1. Findings of Fact and Decision.
2. Memo from Building Official.
3. Letter from DNR.
4. Site plan showing decks Phase I, II and III and letter from
applicant.
5. Approved building permit application.
6. Board of Adjustments and Appeals minutes dated August 26,
1991.
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LHMrttLL , N I4U I ZUPI , JLU I I 6 rULt1 , r .H ep IVO .UU r . UL
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CITY OF CHANHASSEN
CARVER AND HENNEPIN COUNTIES, MINNESOTA
' IN RE:
Application for Ron and Lee Harvieux FINDINGS OF FACT
for a Setback Variance AND DECISION
' On September 9, 1991, the Chanhassen City Council met at its
regularly scheduled meting to consider the Application of Ron and
Lee Harvieux for a Variance to allow a deck within the required 75
' foot setback. The applicant was present and the City Council heard
testimony from all interested persons wishing to speak and now
' makes the following:
' FINDINGS OF FACT
1. The property is zoned RSF.
' 2 . The proposal requires a variance from the 75 foot
shoreland ordinance setback requirement.
3. This application is for an "after-the-fact" variance to
allow a deck which is approximately 99% completed to
remain.
4 . The deck was constructed within the setback area due to a
combination of applicant's lack of knowledge of the
building permit process and the applicability of the 75
foot setback requirement to decks, and the City's failure
to identify the violation during several inspections.
5. Requiring the deck to be removed at this time would cause
an undue hardship on the applicant because of his
investment in the deck and the fact that the deck is
virtually completed.
' 6. The purpose of the variance is not to increase the value
or income potential of the property.
7. The hardship is not self-created, because applicant did
apply for a building permit and proceeded as he was
' instructed by the then building inspectors; and has been
created, at least in part, by the City's failure to
identify the violation during several inspection.
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CAMFEELL . KNUTSON . SCOTT & FUCHS . P .A Sep 4 .91 16 :39 No .005 P.6
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B. Granting the variance will not be detrimental to the
public welfare or injurious to other properties in the
neighborhood because the deck is largely screened from
Lotus Lake by several large trees and other natural
vegetation, and the deck serves the beneficial purpose of
covering an unsightly former septic system site.
9. This variance is granted primarily because of the undue
hardship which would be caused by the failure of the City
to identify the violation during several inspection, and
for that reason will not result in setting a precedent
for other properties where correct procedures are
followed.
10. Granting the variance will not substantially diminish or
impair property values within the neighborhood.
11. Granting the variance subject to a condition that no
water oriented accessory structures be allowed within the
75 foot setback area unless and until that portion of the II
deck located within the setback area is removed will have
a positive impact on the views of the property from Lotus
Lake and surrounding properties, as the existing deck is
set back further from the lake, is lower in profile, and
is less visible than a boathouse, gazebo or screen house
could potentially be.
DECISION '
The variance from the zoning ordinance's 75 foot setback
requirement is approved subject to the followin g conditions;
1. Applicant obtain a building permit for entire deck. I
2. All corrections, if any, required by Building Inspections
Division to the existing deck be completed prior to
completing construction.
3. Deck not be used until final inspection has been
successfully completed.
4. No portion of the deck within the 75 foot setback area be
enlarged or added on to any time in the future. I
5. No water oriented accessory structures, including boat
houses, gazebos, screened houses or detached decks, will 11 be allowed on the property unless and until that portion
of the attached deck within the 75 foot setback area is
removed.
6. The applicants indemnify and hold harmless the City, its
officers, agents and employees from any claim, suit,
judgment, damage or cost the City may incur, including I
CAMFBELL , KNUTSON , SCOTT & FUCHS , P .A Sep 4 , 91 16 :40 No .005 P .04
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reasonable attorney's fees as a result o
Y of approving the
variance.
CITY OF CHANHASSEN
By:
Donald J. Chmiel, Mayor
1 ATTEST:
' Don Ashworth, Clerk/Manager
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CITYOF
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CHANHASSEN
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rte': 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317
(612) 937-1900 • FAX (612) 937-5739
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MEMORANDUM 1
TO: Sharmin Al-Jaff , Planner One
FROM: Steve A. Kirchman, Building Official
DATE: July 29, 1991 1
SUBJ : 6605 Horseshoe Curve Deck
BACKGROUND 1
Building Inspector , Steve Torell , issued a stop work order on the
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decks under construction at 6605 Horseshoe Curve on 7-9-91 . The deck
was not being constructed in accordance with the approved plans . The
homeowner was issued a permit for a deck on 9-6-89. The permit was II for a deck of approximately 240 sf . , which was about 80 ' from the lake
at the closest point . A copy of the approved plans is included.
A footing/framing inspection was made on 9-7-89. The footings had
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been poured without inspection, several framing corrections were
noted, and it was noted that a final inspection was required before
using the deck. Further footing inspections were requested and made
on 5-21 -90 , 6-27-90, 8-28-90, and 5-29-91 . All were approved. A II
final inspection was made on 2-19-91 . It was not approved, and it was
noted that the deck should not be used until approval was obtained. 1
ANALYSIS
The deck permit was issued correctly, and the first inspection was for
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the deck as allowed under the permit . All subsequent inspections
should not have been done. Procedures were changed in the middle of
1990 to prevent situations such as this from occurring. Some 1
inspections were made before new procedures were implemented, in other
cases correct procedures were not followed. Procedures now in effect
require that approved plans be available to the inspector for II examination or the inspection will not be done.
Framing inspections have not been called for on any of the decks other
than the one inspection on the first deck. Accurate plans of the '
decks need to be examined and a framing inspection must be made
on the additional decks to determine what , if any, corrections are
required. 1
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11 Sharmin Al-Jaff
July 29 , 1991
Page 2
RECOMMENDATION
I recommend the following conditions if the variance is approved and
the deck is permitted to remain:
1 . The applicant is to obtain a permit for the additional
decks .
2 . All corrections , if any, required by the Building
Inspections Division to the existing decks must be
completed prior to continuing with other permitted
construction.
' 3 . Decks may not be used until the final inspection has been
successfully completed.
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STATE OF t
-U`1.'.
DEPARTMENT OF NATURAL RESOURCES II
METRO WATERS, 1200 Warner Road, St. Paul, MN 55106
PHONE NO 772_7910 FILE NO I
August 21, 1991
Ms. Sharmin Al-Jaff
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City of Chanhassen
690 Coulter Drive, Box 147
Chanhassen, Minnesota 55317
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RE: NONCONFORMING DECK, HARVIEUX RESIDENCE, 6605 HORSESHOE CURVE,
LOTUS LAKE (10-6P) , CITY OF CHANHASSEN, CARVER COUNTY
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Dear Ms. Al-Jaf f:
You asked for our recommendation regarding a nonconforming deck on
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Lotus Lake that has recently been brought to the city's attention.
The Harvieux family originally applied for, and received, a permit
for phase 1 of a deck in 1989. Since that time the Harvieux family
has added two additional levels of deck. II
Based on our discussion, and an inspection of the structure on II August 8, 1991, my understanding of the current situation is as
follows:
1. The first addition, or "phase 2 , " encroaches on the
structure setback of 75 feet from the ordinary high water
(OHW) elevation of 896. 3 feet by several feet. A city
inspector inspected the deck addition but a building permit
was never obtained. II
2 . The most recent addition, or "phase 3 , " was under
construction when the city inspector brought the deck
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additions to the attention of the city's planning staff.
Phase 3 of the deck is setback approximately 58 feet from
Lotus, exceeding the required structure setback by II approximately 17 feet. The owners did not obtain a building
permit for the phase 3 of the deck.
3. Neighboring properties generally meet structure setbacks I
of approximately 100 feet.
Both phase 2 and phase 3 do not meet the city's structure setback
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requirements. The city must require the Harvieux family to go
through the city's usual shoreland variance procedure. During the
variance application procedure the applicants must demonstrate II that: 1) hardship exists and 2) the variance would meet the intent
and spirit of the shoreland regulations.
We do not believe the Harvieux family can demonstrate that they I
meet these essential conditions for a variance. We would not
object to the city allowing phase 2 (the middle level of the deck)
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AN EQUAL OPPORTUNITY EMPLOYER I
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Ms. Al-Jaff
' August 21, 1991
Page Two (2)
to remain in place, since it is not a gross nonconformity and the
city inspector did not stop the work during phase 2, however, there
is no justification to allow phase 3 to remain. You are further
' advised that if the city chooses to authorize a variance for both
phase 2 and phase 3, the Department of Natural Resources has the
option of taking the city to court. While I have not consulted
with the Attorney General's office on this particular case, we are
extremely concerned about the precedence of permitting an after-
the-fact variance for this structure when no hardship has been
' demonstrated.
Thank you for the opportunity to comment. Please contact me at 772-
7910 should you have further questions on this matter.
ISincerely,
Ceil Strauss
Area Hydrologist
cc: Ed Fick, Shoreland Hydrologist
Chanhassen Shoreland file
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ICITY OF CHANHASSEN
690 COULTER DRIVE
CHANHASSEN, MN 55317
I (612) 937-1900
DEVELOPMENT REVIEW APPLICATION
IAPPLICANT: POO 4 Lee E4a(V (cox OWNER: carrU2
IADDRESS: &&05 /bhoe (U '\jP ADDRESS:
Ch1 MN SC3 t7 .
I ''rte
TELEPHONE (Day time) 339 '2.q9 \I �O \ TELEPHONE: 474— gq 2-66
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1. Comprehensive Plan Amendment 11. Subdivision
I2. Conditional Use Permit 12. Vacation of ROW
/Easements
1 3. Grading/Excavation Permit 13. Variance
1 4. Interim Use Permit 14. Wetland Alteration Permit
5. Notification Signs 15. Zoning Appeal
6. Planned Unit Development 16. Zoning Ordinance Amendment
I 7. Rezonin �_
9 17. Filing Fees/Attorney Cost
I8. Sign Permits 18. Consultant Fees
9. Sign Plan Review
I10. Site Plan Review TOTAL FEE $ 75 ,�o
IA list of all property owners within 500 feet of the boundaries of the property must
included with the application.
ITwenty-six full size folded copies of the plans must be submitted.
I8W X 11" Reduced copy of transparency for each plan sheet.
* NOTE - When multiple applications are processed, the appropriate fee shall be charged for each application.
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PROJECT NAME OUtk0( ( is k. v6t stairs (rickkt afeMA066
LOCATION �l o H7et1oe al rve t t c & feO Iz(e c6 WS�
LEGAL DESCRIPTION . I
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PRESENT ZONING Z—
REQUESTED ZONING SC-101e-
PRESENT LAND USE DESIGNATION
REQUESTED LAND USE DESIGNATION '
REASON FOR THIS REQUEST e k • osop ,f�0 t/'l'f f
t fro6„
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1. )-fvv Lak h t - or/e(rry
This application must be completed in full and be typewritten or clearly printed and must be accompanied by all information'
and plans required by applicable City Ordinance provisions. Before filing this application, you should confer with the
Planning Department to determine the specific ordinance and procedural requirements applicable to your application.
This is to certify that I am making application for the described action by the City and that I am responsible for complying I
with all City requirements with regard to this request. This application should be processed in my name and I am the party
whom the City should contact regarding any matter pertaining to this application. I have attached a copy of proof of
ownership (either copy of Owner's Duplicate Certificate of Title, Abstract of Title or purchase agreement), or I am the,
authorized person to make this application and the fee owner has also signed this application.
I will keep myself informed of the deadlines for submission of material and the progress of this application. I further,
understand that additional fees may be charged for consulting fees, feasibility studies, etc. with an estimate prior to any
authorization to proceed with the study. The documents and information I have submitted are true and correct to the best
of my knowledge.
i also understand that after the approval or granting of the permit, such permits shall be invalid unless they are recorded
against the title to the property for which the approval/permit is granted within 120 days with the Carver County Recordei's,
Office an. e origi•-I document re urned to City Hall Records.
_ Air/ 7/2x/9/
ignatur- • °•plicant Date
/ 7/234/
-ignature of Fee Owner sate
Application Received on Fee Paid Receipt No. '
This application will be considered by the Planning Commission/Board of Adjustments and Appeals on
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DEVELOPMENT FEE SCHEDULE
1. Comprehensive Plan Amendment
a. $500
b. $100 Minor MUSA line for failing on-site sewers
2. Conditional Use Permit
a: RSF uses -
00
3. Grading Permits
a. Under 50 cubic yards $0
b. 50-1000 cubic yards $50
c. Over 1000 cubic yards - processed
as IUP-use UBC
4. Interim Use Permit
a. RSF uses - $75
b. All Others - $400
5. Notification Signs
$50 rental
$100 damage deposit
6. Planned Unit Development
a. Concept Plan $750 + $50/acre for combined application
includes a., b. & c.
b. Preliminary Development
Plan
c. Final Development Plan
d. Amendment
Minor Amendment - $100
Major Amendment - Same As PUD
' 7. Rezoning - $500
8. Sign Permit
a. Temporary - $35
b. Permanent - $50
9. Sign Plan Review $150
(if separate from site plan)
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10. Site Plan Review I
a. $250 + $10 per 1000 sq.ft. of building
area for commercial and industrial districts + $5 per dwelling unit in residential districts I
b. Administrative Site Plan $100
11. Subdivisior Ordinance I
a. Create less than 3 lots $150 .
b. Create over 3 lots - $400 + $15/lot 1
c. Final Plat - Included in one time fee
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d. Metes and Bounds Division $150 + $50/lot over 3 lots
e. Consolidate lots - $100
I
12. Vacation of ROW/Easements $100
13. J riance - $75 I
14. Wetland Alteration Permit
a. Single Family Residence - $75
b. All other uses - $200
15. Zoning Appeal - $0
16. Zoning Ordinance Amendment - $0
I
17. Filing Fees/Attorney Costs
a. Recording Documents $10 + County Fees
I
b. Recording Plats & Related Documents
1) 1-3 lots $100 + County Fee
I
2) 4-10 lots $125 + County Fee
3) 11-3Q lots $200 + County Fee
4) 31+ lots $350 + County Fee
Attorney's time to ensure Cost billed back to applicant
proper drafting & documentation
I
18. Consultant Fees
Consultants required by the Cost based upon prior written I
City to review development proposal and agreement. Fees
proposals including but not placed in escrow.
I
limited to traffic and water
management issues
I
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RESIDENTIAL DWELLING
CITY OF CHANHASSEN
BUILDING PERMIT APPLICATION
GENERAL INFORMATION
Date: (,lie ,, Single Family: ( Multiple Dwelling: No. or Units:
II
Site Address: Jr (f()S t7t�c h]L`N_ C&
Owner: QCJYI + Le ''.r Yl tiClfUlecue,
Address: /t ( t C NQ'-Se nn{ , Cu ru-(_,
II
Contractor: St (L1
Nf<
Address: e7(:).'h.t-F , Phone: 474.325c, G
II
Lot No: Block No: Subdivision:
Parcel Identification No: Section No: l N}:XL Si: Zoning District:
II
Estimated Completion Date:
*********************************************************************************************************
. NEW DWELLING
Valuation of Home Excluding Land: II
Square FF ofage•
1st Floor:_. .or: 3rd Floor: 4th Floor: Total: I
Heating System: Oil: Gas: - ric: For ir: Hot Water:
Air Conditioning: Yes No I
No. of i Baths: No. of 3/4 Baths: No. of Full Baths: o. of Bedrooms:
No. of Fireplaces: Type - -sonry: Metal: Other: VED
IIBasement Finished: Explain: Unfinn}sbe n
Garage: Atta ected Detached Tuck-under Dimensions AUG 7 1989
Is a variance required: Yes No If so, has variance been approved:M( c � Q�� oA II
******************************************************************************** aF *'*'************
MISCELLANEOUS IMPROVEMENTS, ETC.
Value of Improvement: 7(.." (:),(D , 2 Ol.- I
New: Alter: Repair: Addition: c42 cK
Explain: (7 ■r C c j C.K._
Dimensions: ,71-1. /(`1) Square Feet: 2.10 Q (2OZ.-_J-
***************** *************************************************** **********************************
THIS IS AN APPLICATION FOR A BUILDING PERMIT AND NOT TO BE MISUNDERSTOOD AS THE ACTUAL BUILDING PERMIT.
I
THE UNDERSIGNED HEREBY AGREES TO DO ALL WORK. IN ACCORDANCE WITH THE ORDINANCES OF THE CITY OF CHANHASSEN
AND THE RULIN OF THE BUILDING DEPARTMENT. /� ,, �p
Signature: ),�UJzk, �J('j,e_itAL,t,� Address: //64. %Z-6 �hc_. GA l (lC--- I
Telephone No.:(Work) ,-3," -,--2 c ^ /(5761‘) (Home) 4 74 - 3 (.2.9
************************* ******* *********************************************************************
APPROVALS. i FEES: �5 D 6 I
jJ�L,/ ,,S,�* Plan Fee $
�.�CJ Plan Check k Fee
Building sffi•al / State Fee / do
SAC II Seww er Surcharge
Fire Marshal Park Dedication Fee
Trail Dedication Fee
.0 Sewer Unit II
Lt Planner Planning Case No. Sewer Unit
Interest
Water Meter
Assessment Clerk ''//
TOTAL $ T�,d6 i
Park and Recreation
II
All that part of (ovcrninent Lot 3, Section 1, Township 11C. l;ortr. ^anto ;;e•-• qr• le.� a
If 1lows: neginni rr; at a point on the shore of Long Lake so cull eC.• 1` f. r• "ort',.�rt . . t,•o,.
the So ,"'east corner of Pleasant View, Carver County, Minnesota. arLordirg tc ;-r ;1.,, t,,;,-,.,,
on fil• and of record in the Register of Deeds office, said couh.ty and state. t''' • ror•,
:50 1; ' drst parallel with the Easterly line of said Pleasant View a distance of : `eet to
the t•p,,•• ping of curve; thence on a curve to the right with a radius 136.: feet ; ." ',Inc( or
I 11 fent, thence South 6R° 49' East a distance of 289 feet, thence South i0 l''' l';-1 `eet
to 'Ai( • • •r;. of Long Lake; thence Southwesterly along said lakeshore 12P.3 feet •n ocint
'leginning, containing 1 .99 acres. According to the plat thereof o- 'il, if
t 1rd in the office of the Register of Deeds in and for the County of „•;r,• a'
�i ,r ••ti nnesota.
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Board of Adjustments and Appeals
Minutes of August 26, 1991
Page 2
1 A 17 FOOT SHORELAND SETBACK VARIANCE TO THE REQUIRED 75 FOOT FOR
THE PURPOSE OF CONSTRUCTING A TWO TERRACED DECK, LOT 2, BLOCK 1,
SATHRE'S ADDITION - 6605 HORSESHOE CURVE, RON HARVIEUX
Aanenson presented the staff report.
' Peter Beck, attorney with Larkin, Hoffman Law Firm, spoke on behalf
of the applicant. He indicated that the applicant obtained a
building permit and scheduled inspections, consistent with his
' understanding of the process. The city inspectors erred, in his
opinion, in approving the footings. He then commented on the
letter from the DNR that was contained within the staff report,
' indicating that the DNR reserved the right to sue the city if a
variance were to be approved since it is in violation of DNR
Shoreland Setback Standards. He indicated that his reading of the
law states that the DNR performs and advisory service and the city
' has the sole authority to issue variances to the Shoreland
Ordinance.
' City Attorney Knutson confirmed this understanding.
Mr. Beck continued that his belief, the hardship is there due to
' the city's mistakes and that there is a substantial investment.
Furthermore, he believed that no adverse visual impact would exist
on the lake. He then passed out photos of other similar setback
situations located around Lotus Lake. He suggested that the deck
' be allowed to remain with no other water oriented accessory
structures allowed on the property, as proposes a compromise.
' Krauss indicated that accessory structures such as those suggested
by Mr. Beck on riparian lots such as these are all obligated to
meet the 75 foot setback standard. Thus, the compromise offered by
Beck did not seem to result in any net improvement for the city.
Mayor Chmiel indicated that two wrongs do not make a right in this
instance and that permits for the full 3 decks were never granted.
He questioned the DNR letter to the city. He did not want to see
the city obligated to defend the property owner if the variance was
approved and the DNR did decide to take legal action.
' Workman stated that he would prefer to reject the request but could
not due to an error in the city's review of the application.
Mr. Harvieux stated that he never intended to be misleading and
that inspections were requested and approved and he attempted to
comply with city standards. He was never informed of a problem
until it was too late and the deck was in place.
Acting Chair Watson inquired about the DNR. She stated a belief
that the threat contained in the letter was out of character.
I
Board of Adjustments and Appeals 11
Minutes of August 26, 1991
Page 3
Workman moved approval of the 17 foot variance to allow the 3 decks
to remain contingent upon obtaining a building permit and making
any necessary corrections, deck not to be used until final
inspection is granted, no portion of the deck located within the
setback is to be expanded in the future, no water oriented use
accessory buildings to be located in the 75 foot setback area and
also condition upon the applicant agreeing in writing to bear all
responsibility for defending against any action that may be taken
by the DNR to contest the variance. Chmiel seconded the motion.
Workman and Chmiel voted in favor of the motion and Watson was
opposed.
The item will be appealed to the City Council on September 9, 1991.
C. W. FREEMAN FOR A VARIANCE TO ALLOW A SECOND SUMMER RESIDENCE TO
BE LOCATED ON PROPERTY ZONED RSF AND LOCATED ON LOTS 8-10 AND A
PORTION OF LOT 7, SUNSET HILL, 7431 DOGWOOD ROAD.
Aanenson gave the staff report.
Acting Chair Watson indicated that she had received a letter from
Janet M. Quist in support of the action tonight.
Aanenson indicated that she had received a call from a party that
did not wish to give his name, who indicated that he had signed the
Jessup petition in favor of this request. However, the caller
indicated that he was not in fact in favor of it and claims to have
signed the petition under some duress.
The applicant described his request. He indicated that he
originally had four homes and that the guest house had been on the
site for 43 years. He stated that it was in family ownership and
he was going to retire with his wife to the new home. He stated
that they needed the old cottage solely for family gatherings. He
indicated that this is not the first guest house on the lake and
that a garage located on the adjacent property had been used in a
guest house in the past, although it no longer was in use. Mr.
Freeman acknowledged that he did sign the building permit prepared
by staff which contained the condition that the guest house either
be removed or made uninhabitable prior to obtaining a certificate
of occupancy. However, he implied that he was forced to sign to
obtain his building permit. He believed that his septic system was
over built and fully capable of accommodating the two units.
Martin Jones, a neighbor, testified that the cabin was there since
before he moved in the neighborhood in 1950 and he spoke in support
of keeping it.
Workman questioned about the precedence setting value if this were
to be approved.
1
DNR METRO REGION 6 TEL :612-772-7977 Sep 09 91 16 :42 No .010 P .02
tr-
fI^A,y1^'^nVST ATE `(fib F
DEPARTMENT OF NATURAL RESOURCES
Metro Waters, 1200 Warner Rd. , St. Paul, MN 55106
PHONE NO, 772-7910 PILE NO
IIseptember 9, 1991
IMs. To Ann Olsen
City of Chanhassen
1 690 Coulter Drive
Chanhassen, Minnesota 55317
1 RE: Nonconforming Deck, Harvieux Residence, 6605 Horseshoe Curve,
Lotus Lake (10-6P) , city of Chanhassen, Hennepin County
Dear Ms. Olsen:
IIWe understand that the city's Board of Adjustment denied the
Harvieux variance request on a 2-1 split vote, and that the matter
I will now go before the City Council on appeal. We also understand
that the applicant's attorney stated that the Department of Natural
Resources' recommendation did not have to be followed and that the
Department did not have the authority to take the matter to court.
1 The intent of this letter is twofold: 1) to clarify misconceptions
regarding the Department's role in shoreland management variance
requests, and 2) to provide further comment on the Harvieux
I I variance request.
The Department of Natural Resources' duties and responsibilities
I include protection of the state's shorelands under the Shoreland
Management Act, Minnesota Statute 105.485 (1988) (recodified by
Laws of Minn. 1990 ch. 391, art. 6. , Sec. 25, as Section 103F.201. )
The city of Chanhassen has a shoreland management ordinance
II approved by the Department of Natural Resources pursuant to State
law. Once a shoreland ordinance has been approved by the
Department, it is the Department's responsibility to provide
II technical assistance, oversight, and guidance for the city in their
administration of the ordinance. To accomplish this, the city is
required to provide the Department with copies of: 1) notices of
any public hearings to consider variances, amendments or
I conditional uses permits at least 10 days before the hearings, and
2) copies of approved amendments and plats, and final decisions
granting variances or conditional uses within 10 days of final
II action. The legislature has directed that the administration of
the regulations be delegated to the local unit of government. Thus
local control is maintained, and the State can ensure that the
II State laws are enforced. s
•
I
IAN EQUAL OPPORTUNITY EMPLOYER
DNR METRO REGION 6 TEL :612-772-7977 Sep 09 91 16 :43 No .010 P .03
ir
Ms. Jo Ann Olsen
city of Chanhassen
September 9, 1991
Page (2)
The Department's oversight responsibility dictates that we take
action to ensure the quality of surface waters are preserved and
enhanced, and that the public interests are served. It is the
Department's preference to work with the local units of government,
providing: background technical information, explanations of
confusing provisions of the ordinance, and general support in
educating the public on the intent and content of the regulations.
However, in the case where the local unit of government chooses to
allow activities contrary to the shoreland management regulations,
the Department has and could again seek relief in district court.
The Department has the authority, as does any person aggrieved by
the city's decision, to appeal the city's decision on a variance or
conditional use permit to the district court (pursuant to Minnesota
Statutes 462. 361, Subdivision 1) .
I understand that the reference, in my earlier letter, to
consulting the Attorney General's office led to some confusion.
That reference was not at all related to the Department's authority
to appeal the decision in district court; I was referring to
getting advice from the Attorney General's office on whether the
compromise I suggested (to allow the middle deck to remain) should
even be offered, vis-a-vis requiring all nonconforming structures
to be removed. For your information, I have since received copies
of the documentation for a similar after-the-fact request that
occurred within the past year in Spicer, Minnesota. In the Spicer
case, the Department filed a lawsuit against the city; however, a
settlement was reached out of court. The lowest of the three decks
was removed entirely and the middle deck was allowed to be
retained, provided specified vegetative planting was completed by
the property owner.
As noted in my earlier letter, the Harvieux family must demonstrate
that they must meet the conditions for a variance. Pursuant to
Minn. Stat. 462. 357, Subd. 6, (2) the Board of Adjustment only has
the authority to approve a variance where "strict enforcement would
cause undue hardship because of circumstances unique to the
1' individual property under consideration, and to grant such
variances only when it is demonstrated that such actions will be in
keeping with the spirit and intent of the ordinance. " The fact
DNR METRO REGION 6 TEL :E12-772-7977 Sep 09 91 16 : 43 No .010 P .04
' Ms. Jo Ann Olsen
City of Chanhassen
September 9, 1991
1 Page (3)
' that this is an after-the-fact request must have no bearing on the
decision. Any "hardship" claims based on the fact that the deck
has already been built are invalid in that the landowner brought
the hardship upon themselves and ". . .economic considerations alone
shall not constitute an undue hardship if reasonable use for the
property exists under the terms of the ordinance" (Minn. Stat.
' 462 . 357, Subd. 6, (2) .
We encourage the city of Chanhassen to closely evaluate the law and
the facts of this case. Please contact me at 772-7910 should you
have further questions on this matter.
sincerely,
(:1019
Ceil Strauss
1
Area Hydrologist
cc: John Line Stine, Regional Hydrologist
I' Ed Fick, Shoreland Hydrologist
Chanhassen Shoreland file
s'
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