B. Varian to Fence requirements for in-ground pools C IT Y O F BOA DATE: 11/19/90 15
LA CHANHASSEN CC DATE:
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�� ---� CASE #: 90-6 VAR
By: Krauss/A1-Jaff/v
1
STAFF REPORT
PROPOSAL: Variance to the Fence Requirements for In-ground Swimming
Pools
1 < LOCATION: 8280 Galpin Boulevard
V
▪ al APPLICANT: E. Jerome and Linda Carlson
▪ CL 8280 Galpin Boulevard
CL
Chanhassen, MN 55317
PRESENT ZONING: RR, Rural Residential
ACREAGE: 75 acres
DENSITY:
ADJACENT ZONING AND
LAND USE: N - RR
r E
E - County Road 117-
W Hwy. 41
i • WATER AND SEWER: Not available to the site.
III!! PHYSICAL CHARACTER. : The site contains a Class A wetland, has
sloping hills to the east and west and heavily
wooded.
2000 LAND USE PLAN: Low Density Residential
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Carlson Variance
November 19, 1990
Page 2
BACKGROUND I
Prior to 1989, the City Zoning Ordinance required fencing for
swimming pools but allowed this requirement to be deleted if it was
determined that the pool was not easily accessible by the public.
Based upon the recommendation of the Public Safety Department, this
provision was eliminated resulting in a requirement that all pools
to have security fencing for safety purposes. This change was made
due to a question of how the standard requirement was to be
determined and to promote consistently high safety standards. The 11 applicant's architect apparently requested a copy of city
ordinances and may or may not have been specific as to what issues
were at stake. He was given a copy of the city ordinance that had
not yet had this section updated. The home was designed with an
unfenced swimming pool even though the applicant was informed on
the building permit that a fence would be required.
APPLICABLE REGULATIONS ,
Section 20-1021 of the Zoning Ordinance states that all in-ground
swimming pools shall be protected by a fence not less than 5 feet
in height.
ANALYSIS '
The applicant is requesting a variance from the Zoning Ordinance
requirement stating that in-ground swimming pools shall have a 5
foot high fence. The home in question is situated on a fairly
unique site. The applicant controls over 75 acres with the home
being centrally located on the property where it overlooks a
wetland. There is only limited visibility from off-site locations
and the home is essentially secluded and far removed from any
exterior property lines, street rights-of-way or adjoining
residences. The site is also partially fenced. There is a split ,
rail fence running along the exterior property line that is
supplemented with a four foot high chain link fence along internal
property lines that is designed consistent with the Minnesota DNR
recommendations. The DNR recommendations are that a fence be no ,
higher than 4 feet with a 1 foot high gap underneath so that it
does not act to impede the movement of wildlife. The applicant has
indicated a willingness to further enclose his property with a 11 similar fence if so desired by the city. It should be noted that
this fence does not specifically satisfy the requirement of the
Zoning Ordinance since it is less than 5 feet high and is not
located adjacent to the pool. The City Building Official has
provided an attached memorandum where he is recommending against
approval of the variance believing that pool fencing is an
appropriate safety requirement. Also attached are letters from the
applicant's architect that outlines the difficulty of accessing the
. home due to it's location on this site plus a letter from the
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Carlson Variance
November 19, 1990
Page 3
I applicant outlining his position in requesting a. variance. Staff
has made the following findings:
' a. That the literal enforcement of this chapter would cause undue
hardship. Undue hardship means that 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 500 feet
of it. The intent of this provision is not to allow a
proliferation of variances but to recognize that and develop
neighborhoods pre-existing standards exist. Variances that
blend with these pre-existing standards without departing
downward from them meet this criteria.
' * The literal enforcement of this ordinance, in all
probability, does not create a traditional hardship.
There is no question that the property is being put to
' appropriate use. However, in this instance, the
ordinance itself may be something of a hardship since it
was never intended to deal with situations as unique as
' this. Staff has no problem enforcing the pool fencing
requirement in traditional residential neighborhoods. In
a traditional setting with a 15, 000 square foot lot, an
' unfenced pool becomes a hazard, not only for the
occupants of the home, but of adjoining parcels where
access is relatively easy. This is clearly not the case
in this instance. It is fairly clear from the layout of
this site that it would take a fairly determined
trespasser to cross property lines provided with fences
and walk the distance from public streets that is
necessary to reach the home. In this case, it is not
' clear to staff whether or not the fence provides any
additional measure of safety. If someone is able to
' reach the home, they would certainly be able to scale a
five foot high fence if they are so determined. The
fence would also protect the applicant's family from pool
hazards and while they are aware of this, they are
' apparently willing to accept whatever safety risks that
may result. The applicant believes that the inclusion of
a fence would disturb the architectural design of the
' home. This is a subjective judgement that staff is
unwilling to comment upon. It is clear from numerous
other instances that fencing can be designed to be
' architecturally appropriate and to provide ample clear
space to preserve views.
b. The conditions upon which a petition for a variance is based
' are not applicable, generally, to other property within the
same zoning classification.
I
Carlson Variance
November 19, 1990
Page 4
* The conditions upon which the petition.for a variance is
based are not applicable generally to other properties
within the same zoning classification. We believe this
parcel is quite unique due to it's size and terrain which
will make this home one of the most secluded in the city..
As such, until some time in the future that this property
may be developed, it is clearly unlike the traditional '
RSF or even RR development that occurs elsewhere in the
community.
c. The purpose of the variation is not based upon a desire to
increase the value or income potential of the parcel of land.
* The purpose of this variance is not based upon a desire
to increase the value or income potential of the parcel
of land but to maintain that look of openness.
d. The alleged difficulty or hardship is not a self created ,
hardship.
* Staff has indicated a belief that this hardship may in
fact be one of an ordinance cannot possibly be designed
to deal with every unique situation. This is not a
hardship in a traditional sense. However, the applicants 11 designed a home to meet their subjective criteria and
while we understand the rationale behind this, we do not
believe this design in itself warrants a finding that a
hardship exists.
e. 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 is located.
* 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 is
located. Staff believes that the size of the property, 11 terrain and the distance a person has to travel to get to
the pool would act to reduce or eliminate the potential
of injury to the general public.
f. 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 variation will not impair an adequate supply ,
of light and air to adjacent property or substantially
increase the congestion of the public streets or increase
I
Carlson Variance
November 19, 1990
Page 5
' the danger of fire or endanger the public safety or
substantially diminish or impair property values within
the neighborhood.
SUMMARY
' This• request puts staff in an unusual and difficult position
relative to making a recommendation. On the one hand we have an
ordinance that we support that was designed for public safety that
reasonably requires safety fencing around a pool. The City
' Building Official has supported the requirement of this fence on
this site for what we generally concede to be responsible reasons.
On the other hand, we have an applicant who claims that the design
I of the home and pool are such that fencing would be inappropriate.
They reasonably state that their home is quite unique in it's
design, location and for the terrain of the site. They have
' responsibly attempted to fence portions of their site and are
willing to expand the fencing if so required. They also appear
willing to live with any direct risk of injury that may result to
their family members by not having a fence. Staff does not believe
' that the fact that the architect appears to have been given an
outdated ordinance should have any bearing on this issue. People
often request ordinances but are not specific as to the purpose and
' while staff attempts to keep them as updated as possible, we will
admit that the process is not perfect. However, an architect or
developer who is looking for specific answers to specific questions
' is clearly in a position and in fact is encouraged to contact city
staff directly so that we may respond to any questions. Lastly, we
note that when the pool permit was issued, it was noted on the
permit that a requirement for fencing did exist and that this was
the expectation. Thus, the pool was built with the knowledge of
the fencing requirement.
' As noted above, staff is in a difficult position with this request.
Our recommendation to the Board of Adjustments and Appeals is based
more on a desire to refrain from being bureaucratic then on hard
criteria findings contained in the ordinance. It is clear to us
that the ordinance, is not and cannot be designed for every
specific or unique situation in the community. It understandably
deals in generalities and those generalities are most often
' correct, otherwise the ordinance should be changed. We are not
recommending that this ordinance be revised since we believe that
it is a justifiable safety requirement. However, we also believe
' that the ordinance never envisioned a situation such as this. We
believe that the danger to the public from this variance is minimal
if not non-existent. We further believe that allowing the pool to
be completed without a fence would not set a precedent elsewhere in
the community since this situation is so clearly unique due to the
size, location and topography of the site. Therefore, we are
11
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Carlson Variance 11
November 19, 1990
Page 6
recommending that the Board of Adjustment consider granting ,
approval to this variance request.
RECOMMENDATION 1
For the above mentioned reasons, staff is recommending approval of
Variance Request #90-6 for the following reasons: '
1. We find there to be no danger to the public from this request.
2. This site is uniquely different from normal or typical '
residential development in the City of Chanhassen due to it's
extraordinarily large size, location of the home and site
topography which serves to make it difficult to access. '
3 . The site is fenced sufficiently to put trespassers on notice
that they are intruding onto private property.
4. The ordinance is not designed to accommodate unique situations
such as this.
ATTACHMENTS
1. Site Plan showing location of pool and boundaries of property. '
2. Letter from architect for pool design.
3 . Letter from applicant dated September 25, 1990. '
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1 1/14/90
Board of Adjustments/City Council I
City of Chanhassen
690 Coulter Drive
Chanhassen MN 55317
Re: Jerome and Linda Carlson home
Variance request zoning code Sec. 20-1021
Dear Board and/or Councilmembers;
As the design architect for the Carlson home, I have been requested to offer my professional
opinion regarding the above referenced request for a variance for a swimming pool fence. Using
reasonable judgement, I typically advocate for meeting or exceeding code requirements which I
will try to do here based upon the Zoning Ordinance's six criteria A thru F, Sec 20-58., General
Conditions for Granting. My response is as follows:
A. Undue hardship
First. the original architectural design and site design concepts of optimizing both site
integration and site visibility, would be severly compromised. I would typically expect to
accomplish such concepts on a 70 acre site. Great efforts were made to position function
such that "best" views were had from every exposed area; interior as well as exterior. To
provide such fence negates most all possible view opportunities from the pool deck areas.
Second, this is an undue hardship, in this particular case, simply given the context within
which it would be required. It is essential to prevent the next door neighbor's todler from
inadvertently wandering into a swimming pool area. This is on small or immediately
accessible adjacent lots where it may require walking only a short distance from one yard
into a pool. On the Carlson property, such a traverse through the seventy-plus acres
would require something represented by the following examples:
East approach from Galpin Blvd
-through vehicle security gate, walk about 1/3 mile of gravel road, climb boulder
retaining walls-- or--
-through ditch, over/through Owner's perimeter property fence, through wetlands,
through hundreds of feet of dense woods with rolling terrain, up last 10' high treed hill
South approach '
-through acres of private land, swim/wade Harrison lake, through bog/lowlands, climb
20' high steep embankment
North approach
-through acres of crop land, over/through Owner's perimeter fence, around a pond,
through pine forest, up path rising 20' to house front yard, down driveway, climb
boulder retaining walls
West approach from County 41
-through ditch, up bank, through woods or open pasture, over/through Owner's
interior site fence, through more woods, down 100'+ steep hill, through 100 yards of
natural lowlands, climb 20' high embankment
Page 1 of 2 '
MICHAEL SHARRATT ARCHITECT
7352 Ontario Boulevard Eden Prairie, Minnesota 55346 (612) 937-0184
i •
' All the above examples begin just beyond the Carlson's property lines where there could be
the possibility of future homes. No homes that I am aware of now exist near any of these
locations. Taken in context, all the above approach efforts would, in my opinion, reasonably
exceed the intent and purpose of a 5' high fence. In other words, the Carlson's the seclusion
' and inaccessibilty of the pool area from the public, becomes the most effective fence
!3.Atypical conditions
As illustrated above, the conditions upon which the variance is based are dearly not
applicable, generally, to other typical single family-single residence property.
' C. No increased value
Having or not having another fence on this property would do nothing to effect it's
economic value; it only effects the site's aesthetic and environmental value.
' D. No self-created difficulty
The variety, beauty, and natural serenity of this site, to be enjoyed, could not have been
' created by humans.
E_ Variation not detrimental to neighborhood or public welfare
' There is no traditionally thought of "neighborhood" to detriment, and as illustrated in A
above, is likely a far safer situation to the public welfare than a required fence in a small
lot subdivision.
' F. No created impairments
This variation, from my perspective, would provide no reasonanable cause to impair light
' and air to any adjacent property, increase street congestion, danger of fire, endanger
public safety (as related above in context with the nature of this site), or diminsh or
impair property values.
In my profession, I will continue to advocate for meeting exceeds
g or exceeding required code standards as
they may pertain to specific physical situations. My reasonable judgement, in this case, is that
' the Carlson's physical site charateristics and the resultant design opportunities meet or
possibly by far exceed, any reasonable intent of the subject zoning requirement.
II would be pleased to respond further if requested. Please do not hestitate to contact me should
that be necessary.
Thanks for your time and consideration.
Sincerely,
—Vd;4,/
Michael Sharratt
Page 2of2
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Linda&Jerome Carlson
September 25, 1990
Dear City Officials: I
In the spring of 1989, Linda stopped at City Hall and requested
a copy of the ordinances pertaining to building a new home in
Chanhassen.
In reading section 6-12-7 pertaining to "required fences" it
seemed quite obvious that we would not need a fence because
"pools inaccessible from adjacent properties or which are
located on property completely enclosed by a perimeter fence
four (4) feet in height are excluded from this requirement".
At substantial expense we constructed nearly one mile of four
foot high fence around our property. There is about two hundred
yards that remains unfenced because it is an area within the
woods covered by thick brush that is almost impenetrable. The
repair and maintenance of such a fence would also be very high.
Our closest neighbor is more than one quarter of a mile away.
It would be vertually impossible for someone to build within
one quarter of a mile of our new homesite because we are
surrounded by a large wetland known as Harrison Lake, or our
own property.
In August of 1990 our contractor applied for a permit to build
our pool. He was told he would also need to apply for a fence
permit in order to get the pool permit. Just to make sure
things had not changed, we had Mr. Greg Stszemp stop at City
Hall in August of 1990 and request another copy of the zoning
ordinances.
From what we could tell, there had been no change and we pro-
ceeded with our pool location based upon not needing a fence
in addition to our four foot high perimeter fence. We believe
that if you will visit our new homesite, you will agree that
an immediate fence around the pool, in addition to the precau-
tions we have already taken, simply is not necessary.
We respectfully request that we be granted a variance as in-
dicated
on our application.
Kindest regards,V/14.44
4641""Jerome & Linda Carlson
JC/nfp I
ORDINANCE NO. 110
CITY OF CHANHASSEN
CARVER AND HENNEPIN COUNTIES, MINNESOTA
AN ORDINANCE AMENDING CHAPTER 20 OF THE
CHANHASSEN CITY CODE, THE ZONING ORDINANCE
The City Council of the City of Chanhassen Ordains as
follows:
Section 1. The Chanhassen City Code is amended by
adding Section 20-441 to read as follows:
20-441. Enforcement.
' (1) Violation of Article VI, Wetland Protection, or of
the terms of a permit issued thereunder shall be a
' misdemeanor punishable by ninety (90) days in jail
and a $700.00 fine.
' (2) Any person who alters a wetland in violation of
Article VI shall apply for a wetland alteration
permit and shall pay a filing fee double the regu-
lar fee. The City Council may require the violator
' to restore the wetland or take other mitigative
measures.
Section 2. Section 20-1021 of the Chanhassen City Code
is amended to read:
All in-ground swimming pools shall be protected by a
' fence not less than five ( 5) feet in height. All gates
shall have a self closing and self latching latch
installed on the pool side of the fence. All fences
shall be nonclimbable and shall have intermediate rails
or ornamental pattern such that a sphere 4" in diameter
cannot pass through. Subsection (a) does not apply to
' pools which are located on property which are completely
enclosed by perimeter fence five feet in height.
Section 3. This ordinance shall be effective immediately
upon its passage and publication.
Adopted by the City Council of the City of Chanhassen this
28th day of August , 1989.
CITY 0` CHANHASSEN
1
Don-ld J. Jai ie, Mayor
' ATTEST:
D
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CITYOF
tCHANHASSEN
690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317
(612) 937-1900 • FAX (612) 937-5739
h
r
' CITY OF CHANHASSEN
OATH OF OFFICE
I, Richard Wing, do solemnly swear that I will support the
' Constitution of the United States, the Constitution of the State
' of Minnesota, and that I will faithfully, justly and impartially
discharge the duties of the office of City Councilman of the City of
' Chanhassen, Minnesota, to the best of my judgment and ability.
So Help Me, God.
i
' Date: November 19, 1990
Richard Wing
' Subscribed and sworn to
before me this 19th day
of November, 1990.
' Notary Public
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