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CAS-07_BHOJWANI, GARY & KELLIThe contents of this file have been scanned. Do not add anything to it unless it has been scanned. Thomas J. Campbell Roger N. Knutson Thomas M. Scott Elliott B. Knetsch Joel J. Jamnik Andrea McDowell Poehler Soren M. Mattick John F. Kelly Henry A. Schaeffer, III Alina Schwartz Samuel J. Edmunds Marguerite M. McCarron 1380 Corporate Center Curve Suite 317 • Fagan, MN 55121 651-452-5000 Fax 651-452-5550 www.ck-law.com CAMPBELL KNUTSON Professional Association Dired Did: (651) 234-6222 E-mdlAddress: snelson@ck-law.com September 22, 2009 RECEIVED Ms. Kim Meuwissen SEP 2 3 Z009 City of Chanhassen 7700 Market Boulevard r..ITY OF CHANHASSEN P.O. Box 147 Chanhassen, Minnesota 55317 RE: CHANHASSEN—NHSC.RECORDED DOCUMENTS ➢ Variance 09-07 — Bhojwani Dock at 3301 Shore Drive Planning Case No. 09-07 (Tracts I and L, Registered Land Survey No. 7) Dear Kim: Enclosed for the City's files please find original recorded Variance 09-07 for a 46 foot variance from the allowed 25-foot crossbar for docks for the construction of a crossbar 71 feet in length as measured parallel to the shoreline on the Bhojwani property located at 3301 Shore Drive. The variance was recorded with the County on July 23, 2009 as Torrens Document No. T 171715. Regards, CAMPBELL KNUTSON Professional Association S an R. Nelson, Legal kssistant SRN:ms Enclosure SCANNED Document No. OFFICE OF THE REGISTRAR OF TITLES T 171715 CARVER COUNTY, MINNESOTA Receipt # Cert. # 33217 Fee: $46.00 Certified Recorded on 7/23/M at 10:00 AM ❑ PM 171716 �IIIIIIIIIIII II III Carl strar of r Titles Reg CITY OF CHANHASSEN CARVER AND HENNEPIN COUNTIES, MINNESOTA VARIANCE 09-07 1. Permit. Subject to the terms and conditions set forth herein, the City of Chanhassen hereby grants the following variance: The City Council approves Planning Case 09-07 for a 46-foot variance request from the allowed 25-foot crossbar for docks as shown in plans dated April 17, 2009. Specifically, to approve the construction of a crossbar 71 feet in length as measured parallel to the shoreline. 2. Proms yet . The variance is for property situated in the City of Chanhassen, Carver County, Minnesota, and legally described as follows: 3301 Shore Drive — Tract I and Tract L of Registered Land Survey No. 7 3. Law. If within one (1) year of the issuance of this variance the allowed construction has not been substantially completed, this variance shall lapse. Dated: June 8, 2009 SCANNED (SEAL) STATE OF MINNESOTA ) (ss COUNTY OF CARVER ) CITY OF CHANHASSEN �LBY: I t Thomas sAA..FFurlong, Ma r awn. ��//7 . Todd Gerhardt, City Manager The foregoing instrument was acknowledged before me this 1a day ofY� 2_ 2009 by Thomas A. Furlong, Mayor and Todd Gerhardt, City Manager, of the City of Chanhassen, a Minnesota municipal corporation, on behalf of the corporation and pursuant to authority granted by its City Council. DRAFTED BY: City of Chanhassen 7700 Market Boulevard P.O. Box 147 Chanhassen, MN 55317 (952)227-1100 KIM T. MEUWISSEN ?. Notary Public -Minnesota MY Commission Expires Jen 31, 2010 2 CITY OF CHANHASSEN PLANNING DEPARTMENT 7700 Market Boulevard P.O. Box 147 CHANHASSEN, MN 55317 (952) 227-1100 FAX (952) 227-1110 TO: Campbell Knutson, PA 317 Eagandale Office Center 1380 Corporate Center Curve Eagan, MN 55121 WE ARE SENDING YOU ❑ Shop drawings ❑ Copy of letter LETTER OF TRANSMITTAL DATE JOB NO. 6/15/09 09-07 ATTENTION Sue Nelson RE: Document Recording ® Attached ❑ Under separate cover via the following items: ❑ Prints ❑ Plans ❑ Samples ❑ Specifications ❑ Change Order ❑ Pay Request ❑ COPIES DATE NO. DESCRIPTION 1 6/8/09 09-07 Variance 09-07 Bho'wani Dock 3301 Shore Drive THESE ARE TRANSMITTED as checked below: ❑ For approval ❑ For your use ❑ As requested ❑ For review and comment ❑ FOR BIDS DUE REMARKS COPY TO: Gary Bhojwani ❑ Approved as submitted ❑ Resubmit ❑ Approved as noted ❑ Submit ❑ Returned for corrections ❑ Return ® For Recording ❑ PRINTS RETURNED AFTER LOAN TO US copies for approval copies for distribution corrected prints SIGNED: Ili Ki v Meuw' sen, (952) 227-1107 l � SCANNED It enclosures are not as noted, kindly notify us at once. CITY OF CHANHASSEN CARVER AND HENNEPIN COUNTIES, NIINNESOTA VARIANCE 09-07 1. Permit. Subject to the terms and conditions set forth herein, the City of Chanhassen hereby grants the following variance: The City Council approves Planning Case 09-07 for a 46-foot variance request from the allowed 25-foot crossbar for docks as shown in plans dated April 17, 2009. Specifically, to approve the construction of a crossbar 71 feet in length as measured parallel to the shoreline. 2. Pro rt . The variance is for property situated in the City of Chanhassen, Carver County, Minnesota, and legally described as follows: 3301 Shore Drive — Tract I and Tract L of Registered Land Survey No. 7 3. Lapse. If within one (1) year of the issuance of this variance the allowed construction has not been substantially completed, this variance shall lapse. Dated: June 8, 2009 .w CPT`Y OF CHANHASSEN BY: ( L ak (SEAL) Thomas A. Furlong, AND: Todd Gerhardt, City Manager STATE OF MINNESOTA ) (ss COUNTY OF CARVER ) The foregoing instrument was acknowledged before me this edday of 1Y�� 2009 by Thomas A. Furlong, Mayor and Todd Gerhardt, City Manager, of the City of Chanhassen, a Minnesota municipal corporation, on behalf of the corporation and pursuant to authority granted by its City Council. DRAFTED BY: City of Chanhassen 7700 Market Boulevard P.O. Box 147 Chanhassen, MN 55317 (952)227-1100 ' Y KIM T MEUWISSEN Notary Public -Minnesota My commission Expires Jan 31, 2010 2 CITY OF 7700 Market Boulevard PO Box 147 Chanhassen, MN 55317 Administration Plane: 952,227.1100 Fax: 952.227,1110 Building Inspections Phone:952.227.1180 Fax: 952.227.1190 Engineering Phone: 952.227.1160 Fax: 952.227.1170 RIM Phone: 952.227.1140 Fax: 952.227.1110 Park & Recreation Phone:952.227.1120 Fax: 952.227.1110 Recreation Center 2310 Coulter Boulevard Phone: 952,227.1400 Fax: 952.227.1404 Planning & Natural Resources Phone: 952.227.1 M Fax: 952.227.1110 Pubic Works 1591 Park Road Phone: 952.227.1300 Fax:952.227.1310 Senior Center Phone: 952.227.1125 Fax: 952.227.1110 Web Site wwauchanhassennn.us June 9, 2009 Mr. Gary Bhojwani 3301 Shore Drive Excelsior, MN 55331 RE: Bhojwani Dock Variance — Planning Case 09-07 Dear Mr. Bhojwani: On June 8, 2009, the Chanhassen City Council approved the following motion: "The City Council approves Planning Case 09-07 as shown in plans dated April 17, 2009 for a 46-foot variance request from the allowed 25-foot crossbar for docks." Specifically, the City Council approved the construction of a crossbar 71 feet in length as measured parallel to the shoreline. You may complete your dock per the plan submitted with your variance application signed and dated April 16, 2009. Should you have any additional questions or comments or require assistance with other projects in the future; please do not hesitate to contact me at 952-227-1168 or by email at tiefferv@ci.chanhassen.mn.us. Best Regards, CITY OF SS Terry Je Water Resources Coordinator TJ:ktm c: Todd Gerhardt, City Manager gAplaox2009 planning cases\09-07 bhoiwani dock variancexapproval letter 6-9-09.doc Chanhassen is a Community for Life- Providing for Today and Planning for Tomorrow SCANNED 69-01 Chanhassen City Council - June 8, 2009 Todd Gerhardt: KleinBanks are very accommodating. They'll make anything happen. Mayor Furlong: The Summer Concert Series starts Mr. Hoffman, in a week or so, is that correct? What's the first date? Todd Hoffman: Thursday. Mayor Furlong: This coming Thursday? And is that evening or noon? Do you recall? Todd Hoffman: Evening. Mayor Furlong: Evening. So 7:00? City Center Park this Thursday is the first one and it runs into August on Thursdays throughout. Todd Hoffman: Correct. Thursday either at 7:00 p.m. or noon and the majority in the evening. Mayor Furlong: Majority in the evening so check the city web site if you're interested. There's some great bands coming back this year and entertainment and it should be a lot of fun. We do appreciate the support of K1einBank in sponsoring this series. PUBLIC HEARING: BHO.IWANI DOCK VARIANCE: REOUEST FOR AN AFTER - Mayor Furlong: This is under public hearings, is that the correct placement for that? Todd Gerhardt: That's correct. Mayor Furlong: So we will have, we had a public hearing I know at the Planning Commission. Kate Aanenson: That's correct. Mayor Furlong: We'll do another one tonight? Okay. Very good. Let's start with the staff report please. Terry Jeffery: Mayor Furlong, councilors, thank you. As you noted we're before you tonight with an after the fact request for a variance from Chapter 6, Section 26 which sets the limits for a cross bar of the dock, or that portion of the dock that's measured parallel to the shoreline at 25 feet. The property is located at 3301 Shore Drive, which is located along the north shore of Lake Minnewashta. It's currently zoned single family residential and is guided residential low density in the 2030 plan. As noted the public hearing was held before the Planning Commission on May 19th at which time staff recommended either denial of the variance or 2 slips of the 3 slips. Planning Commission upon discussing it voted unanimously to approve the entire variance as requested. Because this request is currently in the purview of two chapters, a public hearing will be needed tonight as well. I would like to draw your attention to the motion box on page 1 of SCANNED Chanhassen City Council - June 8, 2009 your packet. That's where it says City Council approval requires a majority of the City Council present. That is an error. It should read a four -fifths majority of City Council present which requires a super majority. At this time staff is recommending approval for the variance request. Mayor Furlong: Just a quick question if I could. The requirement for the super majority, is that in one of the sections of the ordinance that covers this? Terry Jeffery: That is Chapter 20, is that correct? Kate Aanenson: Yeah, it's in Chapter 6. Terry Jeffery: Oh 6. Okay. The applicant, when he began constructing this dock this winter, this is the condition of the property in 2006 prior to his purchase of it. And actually the applicant, Mr. Bhojwani has another photograph which shows that the extent of the dock was even greater than what's here. But at that time there were 2 docks on site. One located here and another here with a cross section, if you look at the scale up here. This cross section is about 35 to 40 feet in length. Total area was comparable to what is being proposed, or what is currently been constructed by the applicant. He has, during the process sought to do a number of things that he felt would in essence improve the property. One is originally there was, he chose not to locate the dock down here where it could be a hazard to navigation. Proved to be a safety or otherwise restrict access. Combine the two docks into one. He avoided the wetland area, which is up here. He also chose to locate it at that point where the shore is reach of dock as measured perpendicular to the shoreline would get him to the 4 feet... This is the structure we're talking about at this time. If you look at it, this was taken late spring and it is still in this condition at this time. The entire length will be 71 feet. Three slips measuring 13 feet each. A swim platform measuring 12 feet and then 5 feet in width for each of the 4 dock sections going out, necessitating a 46 foot variance. This first slip was completed with an agreement with the City noting that it would be compliant with the City Code as it is now. It wouldn't exceed the 25 foot cross width. It is important to note that it's staffs opinion that the construction began in good faith. There was no intent to circumvent any of the state or local regulations. A phone call was received. A stop work order was issued and we've been working with the applicant since then to move through the variance process. This right here shows, a rendition of the approximate dock location as proposed. This is to scale. You'll note property line here. Property line here. It's at least a minimum of 450 feet from any adjoining properties. As I said earlier, he chose not to locate the dock here where a much longer dock would be needed to achieve that depth. See the shelf that's there. The wetlands avoid and he took the 2 docks combining them into 1 structure and stuck it where it's out of the navigational channels. We took a look at the lake itself in terms of what are the typical properties on this lake. The table in the upper right hand corner shows the average width of a single family residential lot on Lake Minnewashta is about 125 feet. The median 110 feet. The narrowest lot 32 and the largest one, which is actually the point on Red Cedar, is 750 feet in length. That's the next largest lot frontage after the applicant's dock. So when we looked at 6-23 that the City Council may grant a variance if it's shown that by reason of topography or other physical characteristics, strict compliance would cause an undue hardship. It can be argued that if one size, when looking at compliance issues it's got to be the one size fits all approach may not be appropriate for riparian rights, or riparian ownership rights and that by denying this variance it argued that you would actually limit the reasonable use of the lake based 4 Chanhassen City Council - June 8, 2009 upon the unique nature of this lot and the lot frontage. And again when we talk about hardship or purpose of undue hardship, reasoning may not include use, may include a use made by majority of owners within 500 feet of the property. It's been argued that by limiting the cross bar length a standard would be prescribed which would not be consistent with the amount of lakeshore owned. Further analysis of Chapter 6, it's a term that might be said in every other way and the dock has been put in to be in compliance with the Code. Not to affect navigation. Access to any point on the lake. Safety concerns. Avoid degradation of habitat. Avoid... only one dock which is all that is allowed on a single family property. 50 foot in length or to the point where it's 4 feet deep. He chose to put it where it is specifically for that reason. Now with the exception of the 25 foot cross bar and that is the reason we are here for the variance. He's requesting a 75 foot cross bar. Again it's, it has, by our GIS estimation 1,169 feet of frontage. The applicant, he comes up with a little higher figure but the point is still the same. There's, it's a much larger lot than we're accustomed to on this lake. I'll speak a little bit about the intent. In DNR publication entitled "Docks and Access to Public Waters", which was published in February of 2009 by the DNR, Division of Waters, they talk about 3 points with, in their regulation of docks. First being that intensive shoreland development can cause deterioration of the ecosystem by shading out plants that might provide cover for spawning. For protection from degradation. And for food sources. By not restricting access to the lake bed or the water surface. Lake Minnewashta is a public lake. Anybody who gains legal access to the lake has the right to access any portion of that lake as it being a public water. And finally, finding that balance between what is a reasonable use and what is just a proliferation of docks... looking like a shanty town. Staff's contention that given the nearly 1,200 feet of shoreline, that a 25 foot dock, whether it be 25 or 71 foot still would not constitute necessarily a proliferation of docks on this property being considering 25, not 110...250 feet of cross section if it were divided into 10 separate lots. Staff is recommending approval of this format right here. We originally thought, if it were just to be slip C, without the swim platform, that would be a conforming dock with our code, so there are 2 additional slips that are going on beyond that to a 71 foot cross section. That's all I've prepared at this time but if you do have additional questions I'd be happy to answer them. Mayor Furlong: Thank you. Questions for staff at this time? Mr. McDonald. Councilman McDonald: To begin with, this dock, there was an existing dock on the location at one time and it was removed, correct? Terry Jeffery: There was an existing dock that was removed for the construction of this dock, yes. Councilman McDonald: And it was a non -conforming structure. Terry Jeffery: That is correct. Councilman McDonald: My question comes down, we just recently had some people come through with non -conforming structures and what we've enforced upon them is that if they you know wish to tear down and build back up they must stay within the same structure as the non- conforming structure. What is different about this case that we would allow someone to Chanhassen City Council - June 8, 2009 basically tear down a non -conforming structure and build back on top of that an even larger structure? Terry Jeffery: Mayor Furlong, Councilman McDonald. Two points. I'm not entirely convinced that it would be a larger structure. Simply because when we look at the total surface of these docks compared to what is being proposed, they are very comparable in size. And he has tried to minimize the dock conformity by combining them into one dock. Kate, I don't know if you had something. Kate Aanenson: I just want to be clear that the staff had a different recommendation. The Planning Commission, I just want to make sure that the Planning Commission's recommendation was going forward here now. Councilman McDonald: Okay, but still if you're going to support it I need to ask these questions because it's very pertinent because at the last hearing we would have actually gotten a better structure upon a site but it was turned down because they could not comply with a non- conforming structure rules. Kate Aanenson: Correct, and I'll go back to what the Planning Commission recommended and they felt based on the nexus of the length of that shoreline, that they felt that because there was 2 docks, that combining them together seemed an appropriate scale. Again that was the Planning Commission's findings. Councilman McDonald: Well let's talk about scale because you say there's over 1,000 feet of shoreline but yet to the north end of that is water. Terry Jeffery: It's all wetland. Councilman McDonald: Yeah, it's all wetland so you couldn't build a dock in there because not only would it not comply with our ordinances, it wouldn't apply with the DNR ordinances. Terry Jeffery: Yes, given that there are alternatives available to place that dock, he would not be allowed to put that dock there. Councilman McDonald: Right. And you couldn't put a dock on the point down there because at that point now you stick out into the navigable area so again you're limited as to how far out you could go on the point. So in reality you're limited to a very small space up on the shore as to where a dock can go. Do you have any idea what the length of that total area would be? Terry Jeffery: I believe the applicant had prepared that information at the last meeting and I think if he makes a statement tonight I believe he can address how much it's natural and how much is... Kate Aanenson: I just want to clarify one point too. Even though you have a wetland, we do allow people, and we do have homes on the south side of Lake Minnewashta that their entire property is wetland. We do allow wetland alteration permits and so that's a normal process so Gl Chanhassen City Council - June 8, 2009 that would be a separate process and you know how that would go through but you are allowed to go for a wetland alteration permit. The goal there is to try to mitigate the impact of, to the vegetation as the shoreline district says. Councilman McDonald: Right but in this case there is an alternative so it would be highly unlikely that you would... Kate Aanenson: Right, and that might be the appropriate nexus that you might make an addition that while he could have the dock there, that it might be more appropriate to combine that dock with another dock so you're on the upland portion. So I don't want that to you know, but that might be a separate application. Councilman McDonald: Okay. Then the next thing is within the dock, if we place the limits upon the dock that the ordinance requires, is the applicant barred from gaining access into the navigable waters? Terry Jeffery: No. No. We're, that's one of the things we, to talk about. Were it to go down to this one slip, Slip C, there still would be room for 3 boats to be dock, which is allowed by Code. It would still grant them access to the lake and what is a use commonly shared by other properties on the lake. Councilman McDonald: Okay. That's all the questions I have for staff. Mayor Furlong: Other questions for staff? Councilman Litsey: I had a question if I may. Mayor Furlong: Please Mr. Litsey. Councilman Litsey. Councilman Litsey: How the slips are to be used, does that factor into it at all? In other words, single family home having 3 slips, is the fact that potentially could be rented out or an income generator, does that factor into it at all? I don't even know how they're intended to be used but it seems to me that 3 slips for 1 property owner, maybe they have 3 boats. I don't know. Terry Jeffery: Mayor Furlong. Councilman Litsey. In conversation with the applicant they do in fact have 3. They actually have 4 watercraft. Two jet skis and 3 boats. Slip B and C, they have the hoist that's used there, actually needs to mount to the pilings that are driven in. It doesn't rest on the substrate as typical boat hoists do and that was another consideration in this but they do intend on using all 3 docks. Under Code, under Chapter 6, or 26 it says you must be a blood relative of the person who owns that in order to place a dock, or place a boat on that property so he couldn't rent that slip out to a neighbor. Mayor Furlong: Ms. Aanenson? Kate Aanenson: That's correct. Yep, and that's pretty much complaint driven. We do inspect the beachlots on a more regular basis but generally that seems to be complaint driven. If Chanhassen City Council - June 8, 2009 someone has a lot of extra traffic, someone in the neighborhood, or someone on the lake is going to complain on that. Councilman Litsey: Yeah, okay. And then the initial recommendation by staff of 2 slips versus 3, can you just go over again briefly why the deviation. Terry Jeffery: Yeah I guess, Mayor Furlong, Councilman Utsey. Staff's thought on that was, given the nature of the 2 hoists that the applicant had, it might be reasonable to have those 2 slips to continue with use of those hoists, at the same time minimize the variance request to the greatest extent practical under those conditions. Felt that the third, it's not uncommon at all for people to moor their boat on an open dock along the side of a dock without enclosed on 3 of the 4 sides so I think that was staffs thought in that process. Councilman Litsey: Okay, thanks. Councilwoman Ernst: I just have one clarification question. Mayor Furlong: Councilwoman Ernst. Councilwoman Ernst: I just heard Councilman McDonald say that this possibly was not in compliance with the DNR standards. I was under the impression after reading and minutes from the Planning Commission that it was in compliance with the ordinance. Councilman McDonald: I didn't say what we were talking about was the wetlands. If they tried to build a dock across the wetlands. Councilwoman Ernst: Okay. Okay. But as it stands today it is in compliance with the DNR standards? Terry Jeffery: Mayor Furlong, Councilwoman Ernst. Under current DNR regulations, this is a compliant dock with the exception of one part and that is that it must comply with all local ordinances and regulations. So if this were in a just state owned water, without city regulations, yes. It'd be compliant with DNR regulations. Councilwoman Ernst: Okay, thank you. Mayor Furlong: And for clarification as a part of the city ordinance that it doesn't comply with is the width or what you're referring to as the cross bar. Terry Jeffery: Yes, that is correct. Mayor Furlong: Okay. Other than that the other aspects of the dock at this point comply? Terry Jeffery: That is correct. Mayor Furlong: With city ordinance. Okay. N Chanhassen City Council - June 8, 2009 Councilwoman Ernst: Okay, thank you. Mayor Furlong: Other questions for staff at this time? Mr. Jeffery, question on, this is a variance request under our dock ordinance and we've had some of these in the past. Not many but we've had some and we've had other requests for access rights or putting docks in through wetlands. We've had a number of wetland alteration permits for docks and some have been approved. Some have not been approved is my recollection. Is that your's as well? Terry Jeffery: That is mine as well. I think the bulk of them have been, as you said, they've been for setbacks from the side lots. For access where otherwise riparian rights might not be so clear just going through the wetland or having too narrow of a lot to meet it. And yes, maybe you would like to add. Kate Aanenson: Sure, and we've had some on Lotus Lake recently that they, where they're crossing other property lines that we have denied. Again under strict interpretation, you probably remember the most recent one was that even though they had riparian rights, their HOA, the underlying development contract said that those lots were not to have individual docks and they felt they were being deprived so you upheld the original findings on that too so we've kind of, I think we've tackled pretty much everything from the beachlots to individual homeowners who may or may not have rights to very narrow docks that don't meet the requirements for a dock so we've kind of seen the gamut. Mayor Furlong: Right. Well we've had other, the other ones I remember on Lotus Lake were a, because of the specific characteristics of the property itself, they needed to apply for a variance and that one in particular was granted. Kate Aanenson: Yes. Mayor Furlong: We've had others where they've thought they met the requirements and it was determined that they didn't and those requests were not granted. So I guess. Kate Aanenson: ...unique because to get to the depth of 4 feet, some of these docks end up being a couple hundred feet long, and sometimes they're, in order to stay on your property you have to dissect another dock and it doesn't work. It's problematic so you have to look at each case separately. Mayor Furlong: So it's facts and circumstances and the unique characteristics of each situation. Kate Aanenson: That's correct. And I think that's exactly where the Planning Commission went with their findings on this to look at this circumstance individually. Looking at where it was on the lakeshore to come up with their findings and different from the staff. They said you know this is different and this is how we see it. Mayor Furlong: Okay. The other question I have is the picture you showed, the prior picture with the 2 docks. That one right there. That's actually different than the picture that showed 2 0 Chanhassen City Council - June 8, 2009 docks in the staff report. I'm guessing, was this one an earlier picture? What's the date of this picture here, that you're showing at this time? Terry Jeffery: Mayor Furlong, this was flown in the summer of, or rather spring of 2006. Mayor Furlong: 2006. And the picture in the staff report that showed the 2 seasonal docks. Do you know what year that was? Terry Jeffery: That one was actually much earlier. That's in 1977 aerial photograph. And that was really intended to show that the placement on the south portion as well in that navigable waterway. There have been some version of 2 docks out there really since 1977. Sometimes they've been placed together. On the eastern shoreline. Sometimes they've been divided like that. Predominantly they've been placed together though as shown in the 2006 photograph. Mayor Furlong: In your presentation tonight has been the more predominant. But there have been, 2 docks by itself is a non -conformity? Terry Jeffery: That is correct. That is correct. And in addition this cross bar would be a non- conforming cross bar. It would exceed the 25 foot width. And I believe the applicant, if he does present tonight, has additional photographs. Actually that was given to him in the sales brochure of what the docks could look like on the lake. Mayor Furlong: Alright. And I just wanted to clarify the two different pictures there and you also clarified the timeframe and the fact that there have been 2 docks here for a number of years, even prior to our existing ordinance. Terry Jeffery: Correct. Mayor Furlong: Okay. Any other questions for staff at this time? Councilwoman Tjomhom: I have a couple. Mayor Furlong: Councilwoman Tjornhom. Councilwoman Tjomhom: Just for clarifying my understanding. When you look at Section 6-26 regarding docks, why is it that we have these standards? I mean how did we come up with 50 feet or you know where did these numbers come from? Terry Jeffery: Mayor Furlong, Councilwoman Tjomhom. I can't speak to the specific discussion that went on when those went in place but given, given the desire not to have the entire shoreline covered with docks. To still allow access to the whole part of the lake, I think 25 probably seemed a reasonable use to get 2 docks, or 2 slips in. Allow a swimming platform or whatever, but not be such that the entire shoreline is really a contiguous, a dock. Contiguous dock going all the way around. Excuse me. 10 Chanhassen City Council - June 8, 2009 Councilwoman Tjomhom: So these numbers, it's not for necessarily protection of the lake except for looks, aesthetics? Terry Jeffery: No, no. Mayor Furlong, Councilwoman Tjornhom. No, protection of the habitat that is along the shoreline. If you look at past aerial photos, especially northern Lotus Lake comes to mind where it used to be lily pads and sedges and rushes all throughout that area but as the docks began to proliferate in that area, people either needed to clear out more and more vegetation to gain access or just the boating traffic itself that did. The docks themselves act to shade out the plants that are there and then once you start losing the plants you start losing spawning areas. You start losing places where the smaller fish can hide from predation or where the larger fish can look for food as well as just yes, protection of the shoreline in general. Kate Aanenson: Maybe could add a little bit too. When the Minnewashta Regional Park went onto the lake, I think that started a big discussion too about how many docks and beachlots and those sort of things so they, these codified some standards for docks. And then also looked at, then I believe in the early 90's then we went back to and actually had the dock setback regulations. Some of that was safety too. To look at when people were approaching other docks, was there enough space between because we looked at the average width of some of those lots that were narrower to make sure that there was you know, and again that was some of the reasons why the Planning Commission felt like because it wasn't really a safety issue here with this much frontage but that was some of the rational basis for coming up with those standards. And as we noted earlier where there's different depths of the lake, where you've got 150 feet of wetland, your dock needs to be pretty long to get out to a depth of 4 feet. So there's all different standards so if someone's fishing along that edge, so there's some consistency to say why is your dock so long? Because I have a right to get to 4 feet of depth with my dock so that was some of the basis that they put in place to be consistent on all the lakes so there was a standard. And again as we noted, deviation for whatever reason, the way the property lines come to the lake, the different widths that we have processed variances throughout so some of that again was based on that safety issue. Councilwoman Tjomhom: And if I could ask one more question. Mayor Furlong: Please. Councilwoman Tjornhom: I think I've asked this every time we have a dock variance come up. Do the city codes pertain to every lake or does each lake have their own set of rules? Terry Jeffery: They pertain to every lake in terms of the dock. Councilwoman Tjomhom: Okay. Terry Jeffery: Some may have a slow wake zone at different times than others but Chapter 6 applies to all lakes in the city. Mayor Furlong: Okay? Any other questions at this time? No? At this time then I'd like to invite the applicant to come forward, if there's anything you'd like to address to the council. We 11 Chanhassen City Council - June 8, 2009 did have the benefit of reading the minutes at the Planning Commission. I know you provided quite a bit of information there so if there's anything else you'd like to add this evening. Good evening by the way. Welcome. Gary Bhojwani: Thank you. Good evening Mayor, council members. My name's Gary Bhojwani. I'm the applicant. Do you need me to state address or anything like that for the record? Mayor Furlong: Please. Gary Bhojwani: 3301 Shore Drive, Chanhassen, Minnesota. Mayor Furlong: Thank you. Gary Bhojwani: I'm not sure what the right way is to proceed. I can walk you through maybe an abbreviated version of the comments I made during the Planning Commission. There are a couple of questions that were asked and comments that were made that I would either like to clarify or add to. Mayor Furlong: Okay. Gary Bhojwani: I think it might be better for me just to spend a few minutes if I could to walk you through the comments I made. Would that be appropriate? Mayor Furlong: Yeah, I think in a summary version might be appropriate and then make sure you address the questions that you heard today or... Gary Bhojwani: Yep, I will do that. I made note of those and I'll try and address those. I've got a couple of notes, can I hand those out to you guys? Is that alright? Mayor Furlong: Yes. Gary Bhojwani: I promise I'll move through it quickly. I know you guys are pressed for time. If you just want to take one and hand them down. Todd Gerhardt: Yeah, thanks. Gary Bhojwani: The first thing and probably the most important thing I want to start with, I very much believe Warren Buffet's position that it takes 20 years to earn a reputation and 5 minutes to lose it. It is absolutely imperative to me that the members of the council and the mayor understand that this was a mistake that happened in terms of even starting the construction. This was not an attempt of an end run and I'll explain that in a just a moment. We moved to Minnesota in 2007. It's our first time living on a lake. I grew up in Chicago and my wife grew up in Wisconsin. Neither of us had lived on a lake. We weren't familiar with all of the subtleties that go into lake life, particularly docks and things like that. We hired a contractor. The contractor's here tonight, if you have any questions him. We hired a contractor who's got a 12 Chanhassen City Council - June 8, 2009 lot of experience building these type of docks. We checked him out. Checked out his reputation. His expertise and so on. The docks, to answer one of the questions that was asked. The dock that's been constructed is in full compliance with DNR standards, but for the one provision that Mr. Jeffery pointed out. Again, when we hired the contractor our understanding is that in the spring of 2008 the contractor spoke with city staff to get a general understanding of what would be permissible and not permissible. It appears that there was some type of a misunderstanding because the contractor thought all he needed to comply with were DNR standards. But it's important to note that again under the heading of reputation, I don't want people thinking we were trying to make an end run. That was just not the case. So in addition to that we, once we were notified of a problem we complied completely with all the city's requests. I would like to point out, and I don't want to make an issue of it. Our attorney's here if we, you know if you have technical questions. I would like to point out though for the benefit of the City Council, there is some lack of clarity and some inconsistency between Sections 6 and 20. I'm not an attorney. You know if you guys have technical questions we can have him come up and you can talk to him about that but there is a lack of consistency. I think there are some issues and even city staff would concede that. So the first and most important thing, this was not an end run. Now in terms of the specifics of the dock itself. Just a couple of pictures I'd like to share with you because I think these speak to some of the issues. Let me start with that one. This is the second page in the packet I just handed to you guys. This is an apples and oranges comparison so let me concede that but this is a picture that's taken right off of our dock, across the lake from us. You can see there are 7 slips there. There are multiple residences that share that. It's a completely legitimate use and so on so I'm not trying to say it's the same comparison but I provide the picture as a way to make a point that to the extent someone is concerned about the aesthetics of multiple slips being attached, that bridge has been crossed and then some. So that exists right across from us. Now the salient issue, and I think that even the Planning Commission saw this, was the notion of scale and what we purchased. So the next picture here, I'll put this up. This is a picture of the plot and what you'll see here, when we purchased the home in 2007 it had these 2 docks and this was the approximate location and the configuration. We have pictures to prove that up so it's slightly different than the picture that was shown by Mr. Jeffery in 2006. What we moved it to was this new configuration and one of the main things that we did after input from our neighbors was to shift the dock away from this point, because this is a water skiing point. Folks come around the bend here and they really didn't want this dock here because of the sight line and so on so we moved it all closer. Now one of the other points I'd like to make, the property has on it a structure right here. A kennel building or something of this sort. What I really wanted to do was to build a dock off of that and use that as a boat house but our contractor advised against it. He said look, you've got wetlands over here. Lily pads and so on. You're going to draw all kinds of problems if you try to construct something there. The point I simply try to make with this drawing is that we were very mindful of keeping away from navigable, the navigable point here and we also stayed away from the wetlands. By locating it in the location we did we are not obstructing anybody's navigation. Now the other point that I think is worth making, with approximately our count is 1,260 but we'll use 1,160 or 1,260. The point is, you've got a lot of shoreline here. We are 500 feet at minimum from the nearest neighbor. The neighbors on this side over here can't see the dock. The majority of the neighbors, I think 4 out of the 5 homes that can see the dock from this end have provided letters of support. I believe those are contained in your packet. Now, the other issue that was touched upon a little bit was what we bought, and here's another drawing that I prepared. This is the 13 Chanhassen City Council - June 8, 2009 drawing as it currently exists. 2009. The configuration we bought the home with was like this. If you look, and I intentionally, what I did was I took this and I used a little scissors and cut it up to try and show the configuration we've moved to actually takes up less square footage than the way we bought the home. Now, we've now come to learn that when we bought it the docks that were in the water were non -conforming and I don't know what to say to that. I bought the home with 2 docks in the water. They were this configuration and so there was 2 docks like this and this platform was actually, I think he said it was 41 feet. This length. The new configuration is actually slightly smaller but for sake of discussion here let's call it comparable. Our intent wasn't to build something that was totally outside of what we had bought. Now in hindsight should we have known that it was non -conforming and such? I guess but if you were buying a brand new home, or not a brand new home but if you were moving brand new to an area and you bought a home, I think you would assume that what you were buying was generally conforming. Hindsight I wouldn't do that again. I've learned my lesson but here I am. Couple of other things. I think this also carried some weight with the Planning Commission. The 71 foot that is currently constructed and being sought permission to continue with is approximately 6% of our total shoreline. The average shoreline on Lake Minnewashta is 125 feet. If you were to impose that same 6% limitation you would be talking about docks that are 7.5 feet wide, not 25. Similarly the median shoreline on Minnewashta is 110 feet. Again 6% of that would be at 6'/z feet. Not 25 feet. Now, another key issue I think for the council members to know, what's at dispute here is the width of the dock. Not the protrusion into the lake. So we're not affecting navigable waters in that way. We have come away from the point to make water skiing safer. We have stayed away from the lily pads. We were able to secure approximately 20 letters of support from our neighbors, most of whom live on the lake and have visibility to the new structure. I think the main reason we were able to secure that is because they recognize we have been respectful stewards of the property that we own. Indeed of the 1,200 feet or so that we own, 90% of it is in it's natural state, and I think that's pretty significant. Final point I'd ask the council to consider, we're in a situation right now, we can't even go back to what we had because the 2 docks were non -conforming. We bought the house in good faith. Docks in the water. We engaged a reputable contractor. I think an honest miscommunication was made and we're stuck so here we are asking for the variance. Mayor Furlong: Okay, thank you. Any questions for the applicant? Councilman McDonald: Well if I could just make a comment. First of all from reading through all this, I do not believe that you need to apologize for it being an end run. I think it's very clear it was a mistake and it was an honest mistake on everybody's part, so I don't think anyone here is accusing you of any of that. From reading through the record and everything I don't think that charge has been you know leveled against you. I do understand that our ordinances and when you do this can be quite complicated so please you know, do not think that we believe that you tried to do something you know slipped under the radar on us. Having said all that, what I would like to ask is again the question that I asked staff about the length. The actual shore length. If I take out the wetlands and the point, which would create somewhat of a problem to you as far as putting a dock in there, how much actual lake front footage are we then talking about? Gary Bhojwani: I believe we're still talking about in excess in 500 feet. I don't know off the top of my head. One thing I would also point out, Mr. Jeffery provided pictures last time that were 14 Chanhassen City Council - June 8, 2009 taken earlier. I think sometime in the 90's actually there was a dock that came off of the point. The docks have been placed in various locations through the years by the previous property owner. There were pictures to substantiate that. So whether or not it would be a wise placement, it's been placed all over. The docks have been placed all over the property line over the last 30 or 40 years. Councilman McDonald: Right, and I think one thing that was pointed out by the Planning Commission last time is that a lot of this is complaint driven. The City doesn't go around policing everybody individually. There's just too many lakes and too many docks, but once we do receive a complaint we will investigate so, just because someone was allowed to do it before doesn't mean it was correct. It just means maybe no one complained, but I think what you saw were that people evidently didn't like it because they did ask you to move the dock off of the point because of water skiing. The other questions I guess I have is that if we do restrict this down to what the ordinance requires, what kind of hardship does that actually place upon you? Do you have 3 boats that now all of a sudden you have no place to put or just why do you need the additional space? Gary Bhojwani: We do already own 3 boats, so to answer that question. The dock as you saw has already been substantially constructed. Frankly the hardest parts of the construction, and again the contractor's here if you have technical questions. The hardest part of the construction has already taken place, which is driving the pilings. I believe there's 42 pilings and some of them go as much as 18 feet into the ground. So removing these first of all wouldn't happen until the winter time, and second of all it would be a pretty substantial undertaking to get them out of the ground. Councilman McDonald: Well that's an interesting point. Can I go back to staff for just a second? I believe I read in the report that if we did adhere to the ordinance we would not necessarily require the pilings to be removed, is that correct? Terry Jeffery: Mayor Furlong, Councilman McDonald. We would not require them to be moved until such time as conditions were safe that they could drive the rig onto the ice and pull them out at that time. So they would remain in place for the summer. Councilman McDonald: Okay, but the pilings couldn't just remain indefinitely then? Todd Gerhardt: Only if you granted the variance. Councilman McDonald: You have to grant a variance to allow pilings to remain? Okay. I guess that answers that question but what other hardships would you have here? Would you be restricted as far as being able to get out into the navigable waters of the lake or would you suffer any other kind of lack of enjoyment of your property and the dock and boats? Gary Bhojwani: I think the issue from our perspective is, there's probably a couple different perspectives. Number one, we're seeking something that is no more than what we bought the home with. Indeed technically speaking slightly less. So we bought the home in good faith, assuming certain things. We would no longer have that. That's not to say we wouldn't buy the 15 Chanhassen City Council - June 8, 2009 home without it but in terms of a change. Second, we've expended a considerable amount of funds building the dock, and whether that comes out of our contractor's pocket, our pocket, what have you, there's clearly going to be financial impact. We do own the 3 boats. We'd have to deal with that. We also have purchased lifts that are mounted permanently to the pilings so even if you pull the pilings out, now I've got to do something with these lifts. So there are substantial hardships that would go with that. In terms of access to the lake, we still have access to the lake. I'm not disputing that. I think that our attorney has a different perspective on hardship and what the standard is. I'm not the legal guy. We could have him comment on that if you're so interested. Councilman McDonald: Okay. Todd Gerhardt: Mayor, council members. I think at this point I think it would be good to get an opinion from our city attorney on the definition of hardship so as we're looking at the request before us, to truly feel and understand how we define a hardship and if you don't mind we'll have Roger kind of explain that to the council and to the public. Roger Knutson: It's actually not my definition that counts. It's the Court's opinion. Their interpretation. Up until about 20 years ago there'd been a common understanding that hardship meant that without the variance you were deprived of any reasonable use of your property. The Court rejected that roughly 20 years ago, Raoul vs. City of Moorhead. And the Court said no, that's wrong. Hardship does not mean you're prevented from having any reasonable use. It means you're prevented from having a reasonable use. So the question in each situation is, under the circumstances that are unique to this property is, does the ordinance prevent someone from doing what is reasonable. Considering the topography, the size of the property. Under these circumstances present here that are unique to this property that are not shared in common by all other properties is the ordinance preventing what is reasonable. And if the answer to that question is yes, what they're doing is reasonable but the ordinance is preventing it, then a variance is appropriate. And if you answered that question in the negative, then the answer is no. A variance is not appropriate. Councilman McDonald: I have no further questions Mr. Mayor. Mayor Furlong: Okay, thank you. Any other questions for the applicant? Gary Bhojwani: Thank you. Mayor Furlong: Okay, thank you. At this time, we'll go ahead. Let me go back to staff. One of the questions that wasn't addressed and it was an issue that was brought up at the Planning Commission and that resulted in condition number 1 being recommended by the Planning Commission about an annual inspection by the City for purposes of, I read through the minutes. For the sake of those people that didn't, there was some concern about what, structural integrity? Tell me what their concern was and how that... Kate Aanenson: I think that was, the structural integrity but I'm pretty confident and the investment put in this dock that the owner is going to maintain that. So I don't know if we need 16 Chanhassen City Council - June 8, 2009 to do that. Again the complaint basis is normally what we do but that's normally, someone else is going to tell us if someone's dock is disrepair but I think what the person that put that on would be comfortable either way if that was removed too. I think it was just to kind of put it on notice that. Mayor Furlong: Okay. And that was, because generally I haven't seen that type of condition before about us, but you've answered it fine. That it's... Kate Aanenson: Yeah, because we don't have that many permanent docks on the lake. Just to be sure that now it's a permanent dock, that that person maintains that and again based on the investment put in there, I'm pretty confident that would happen anyways. Mayor Furlong: Okay. Alright, so. Kate Aanenson: If it's removed, that would be fine. Mayor Furlong: If that's removed that's fine. Okay, thank you. Todd Gerhardt: Mayor, Council, I think the contractor could also explain that when you put a permanent dock in, you're going to have you know ice moving and he makes a living on adjusting some of those. I mean the property owner wants them to be secure and on occasion they will get loose and he'll go out and repair it, like most people do. Mayor Furlong: Okay, thank you. At this point then, good evening. Peter Johnson: Good evening. Mayor I'm Peter Johnson, counsel to the Bhojwani's and Gary Bhojwani's asked me to make a brief comment to the council if that's acceptable. Mayor Furlong: Please do. Peter Johnson: I did send a letter to the Planning Commission and to the City at the Planning Commission trying to elaborate on the way I saw the legal principles at play in this application and in that letter I did identify my correspondence as part of and as supplement to the Bhojwani application and so my first point is I'd like the letter to be part of the overall record in the deliberations here. It was not clear to me based on the mailing that I got that that was distributed to the City Council but we can. Mayor Furlong: Is this your letter dated April 16th9 Peter Johnson: Yes. Mayor Furlong: Okay. City Council does have it and without objection we'll put that on, for the record as well. Peter Johnson: And I would say first of all that I don't take issue with the comments that have been made by the city attorney regarding the generalized standard for a variance or what a 17 Chanhassen City Council - June 8, 2009 hardship is. However this case involves riparian shoreline and we do have a great deal of law on riparian shoreline in the state and it dates back to the beginning. Riparian shoreline has always had a special set of principles that apply and referenced in my letter the recent case of, to an ordinance that was in effect on Lake Minnetonka. One size fits all dock use application and in that case the Court of Appeals struck down the statute and said in a case where you do not consider, reasonably consider a variance to your one size fits all ordinance where the property clearly is not going to have a fair use of it's riparian shoreline under the ordinance, then the ordinance is, it's ineffective. And so in this case where it's so clearly the case that we've got the largest property on the largest lake in your city. It's a very exceptional, extraordinary, unique piece of property and there is nothing unreasonable or unusual about Mr. Bhojwani's proposed use in the broader contest. You happen to have a number of small lakes with modest parcels and I'm sure, I'm certain that your ordinance is perfectly appropriate for most of them but in this case we think that a variance is appropriate. Thank you. Mayor Furlong: Thank you. Any questions for Mr. Johnson? Councilman McDonald: Could I make a statement? Or should I wait? Mayor Furlong: Well is it making general comments or is relating to his letter? Councilman McDonald: I just wanted to point out that if we're going to talk about riparian rights and we're going to be provided with a case I think we should also look further down within that case because that case does state that riparian rights are subordinate to the public welfare and good and that this case also said that a governmental body does have a right to regulate it's shoreline and docks and there is nothing within this case that says anything about length of breadth or any of those kind of things. The case at Lake Minnetonka was based upon geography of a particular lot and at that point it did begin to impede to within that particular case's riparian rights but in this case with the lot size that we're talking about, those kind of factors do not come into play here. Peter Johnson: Well Lake Minnetonka, their ordinance gives big docks to big lots, little docks to little lots, and in this particular case the way that the lot lines converged, it gave virtually no docking at all but it gave the right to use a row boat or bring a boat up onto shore as access to the lake and the LMCD thought that was reasonable and the Court of Appeals thought it was not. Sc I did not mean to say that the City can't regulate docks. As a matter of fact what I thought I said was that you have the right to regulate docks. You have, and you can regulate reasonably with a one size fits all ordinance also, but the case I cited stands for the proposition that when you are confronted with a unique piece of property that deserves a variance, then you must give the variance. Councilman McDonald: Okay, I would agree with that. Peter Johnson: Thank you. Mayor Furlong: Thank you. At this time, having heard from staff and the applicant I'd like to go ahead and open up the public hearing and invite any interested party to come forward to the B Chanhassen City Council - June 8, 2009 podium, please stating your name and address. No one this evening? Seeing no one without objection then we'll close the public hearing and bring it back to council for discussion. Is there, can we keep going? Thank you. Let's start with discussion or follow up questions if there are any. On this. The issue before us is the, as I understand it, again summarizing the request for the variance is specifically with regard to that cross bar. That's the point that violates, or is not in compliance with our ordinance. Terry Jeffery: That is correct. That is the only part that is not in compliance with our rules. Mayor Furlong: Okay. Our ordinance doesn't, okay. Alright. Thoughts and comments and then we can put it to discussion and see where it takes us. Councilman McDonald: Well the problem I'm having with all this, it comes back to the non- conforming use. We have been very consistent in the past that when you had a non-confomung use, once changes are made to that it must come into conformity. I was yet to see anything with this particular case that would say there's something different. We've talked about shoreline. We've talked about the length of it. We've talked about access. Anything to come into compliance with our ordinance does not create a hardship on the applicant. He can still get in and out of the lake. As a matter of fact with the recommended docks that you had come up with, he could still moor 3 boats. Not as conveniently as he can with the dock but the ordinance is not about convenience. If it were about convenience there are a couple of cases that came through here that we should have been granting variances to and we did not because again we have adhered to the fact that once a non -conforming use is undone, it must come into a conformity and I was yet to see a reason to say that we should go beyond that and grant a variance on this particular issue. But you know having said that, again the problem I'm having is the non- conforming use. I think that there were a lot of things said in the Planning Commission that maybe the ordinances that we were doing were not, I don't want to say legal but were confusing or improper. I do not believe that that is the case and so I don't think that that's a good argument for why this should be allowed or why a variance should be granted. If someone can convince me that we should go back on what we've done in the past I'd be willing to support this but I'm thinking of a particular case last week and there was a lot involved on that one and we adhered to again the, if you change the non -conformity you must come into compliance. Mayor Furlong: Let's talk about that because there have been a number of situations where we've had variance requests where there's been non -conformity. Sometimes are after the fact variances such as this situation. Sometimes it's before the fact and I'm thinking of a few, especially around the lakes where we're dealing with maybe not a dock but hard surface coverage, impervious surface coverage where they exceed the allowable amount and we bring them closer to but maybe not all the way down. We might still grant a variance but not everything that they initially requested. But we make progress so, but let's talk about it. Councilman McDonald: Well on some of those. Yeah, on some of those, Lotus Lake is a good example of those because on the north end of Lotus Lake, in the past couple years there's been a lot of requests for docks. Mayor Furlong: Yes. 19 Chanhassen City Council - June 8, 2009 Councilman McDonald: The north end of Lotus Lake goes across basically wetlands. We have allowed some exceptions in that area but we've also limited people to have access because again when the developments were put in as part of the plat itself it was written in, the restrictions on docks and there had to be community docks versus individual docks except for certain lots. So all of that was written in. Where we granted the variances it was because people could not gain access into the lake so we had to do something there, and we did manage whenever they started making some changes, we did squeeze things back a little bit but again you still allowed access. There was one dock in particular that came down and he would have had to have gone out, done a left turn, come around in order to get into the lake. We denied that one because again it goes back to the way the property was originally platted and everything. The restrictions that were placed upon it, but also because again we wanted to protect the wetlands so. Mayor Furlong: Right and there were, if we're thinking about the same one it was the one that was granted on the north part of Lotus Lake about a year or so ago and there there were unique attributes to that parcel that justified the granting. There have also been some variance requests for, to our dock ordinance that have not been granted. Again because of specific circumstances there. Todd Gerhardt: Mayor, council members. If I could just clarify the issue before us here. Staff is not recommending approval of the variance because there was a non -conforming dock there prior. The question before the City Council this evening is, does the applicant reasonable use of his property? Nothing to do with the previous docks. That has nothing to do with the hardship. I think Roger defined hardship. Does the applicant have reasonable use of his property based on the amount of frontage he has on the lake. That's the question before the council. Roger Knutson: If I could just amplify on that. I would suggest, ignoring the fact that there were, in my judgment anyway, was 1 dock, 2 docks, or any docks there before, he doesn't get a leg, the applicant doesn't get a leg up because there were prior docks there and he's not, he's not, doesn't have a leg down, whatever the equivalent is, because of it either. It just, I would review it as here's an application for a dock. This is a new dock. Does he meet the standard? And the standard, the undue hardship standard is, does the ordinance prevent what, a reasonable use. What the applicant, is the use proposed by the applicant reasonable under the circumstances of his property. Mayor Furlong: Thank you. Other thoughts. Councilwoman Tjomhom. Councilwoman Tjomhom: I'll see if I can try and piece this together and explain I guess my thoughts. When we have a request for a variance I guess I immediately look at the ordinance and does the ordinance seems reasonable to the applicant, and that's why I asked the question regarding square footage and feet and just the overall requirements of docks. How those numbers came to be and why and it seemed reasonable, as you explained to prevent over crowding on docks along lakeshores. And I think in the staff report there was a chart that showed square footage of lakeshore. The averages in town, and a majority of them work with this ordinance. But when you have a property owner and they have roughly, if not more or less 1,200 feet of shoreline, that to me, this ordinance doesn't seem reasonable for someone who 20 Chanhassen City Council - June 8, 2009 owns that much shoreline and the fact that he is wanting to have a structure, one structure. Not two or three but one unit, self contained unit on his 1,200 feet of shoreline to me seems reasonable. As far as a hardship goes, you know we could fight, we could talk all day about what, is a hardship only being able to have 1 boat or 3 boats. You know that's not up for me to decide, but I do know that if I owned 1,200 feet of shoreland I'd probably want to enjoy that shoreland and I'd probably want to have 3 boats. And so I think, like I said, the ordinance, it works a majority of the time but in this case I just don't feel that it's working for this property owner and so I would have to agree with the Planning Commission that we should allow him to continue on with his construction and monitor that with yearly inspections. Mayor Furlong: Okay. Councilwoman Ernst. Councilwoman Ernst: With the data given here this evening it seems that the owner would not have reasonable, a reasonable use of his property if the variance is not granted. In building the dock the owner has actually been very reasonable and building the dock around the wetland area. He's meeting the DNR standards and in reading the Planning Commission minutes and really with him receiving the support of the owners around the, surrounding his area of the lake, I would really recommend that we support this variance and I personally would and I would go on staffs recommendation. Mayor Furlong: Okay, thank you. Mr. Litsey. Councilman Litsey: Along those same lines I guess. I look at what's reasonable use of the property given the amount of shoreline that's here. If you were to look at the median shoreline on Lake Minnewashta it'd be 110 feet approximately. If this was subdividable, which it obviously isn't because of the wetland and stuff, potentially for that tract of property you could be looking at 10 plus docks along that shoreline and so I think given and what's been articulated by our city attorney and what's been presented I think that what's been presented here by the applicant doesn't seem unreasonable to me based upon the amount of shoreline that we're talking about. Mayor Furlong: Okay, thank you. I think as we look at these, in addition to answering the question about reasonable use, which the city attorney has laid out, I think the other factor here just to make sure we're clear is this is an after the fact request so to the extent that the, some of the construction occurred before the issue was raised. I think it's fair and I'm glad to hear that really isn't a factor in our decision. We try to approach these as if it was before the fact and we've done that consistently. So the real question from an ordinance standpoint, whenever we write an ordinance we talk about all the time we try to find that balance between public rights and, or between public interest and private property rights and I think we all realize that one size does not fit all. We try to find that balance but realize and clearly through the process we're going through tonight, that variance request, that is the opportunity through a public process to take a look at the specific facts and circumstances and how that might differ. I think with regard to this particular application, this is a unique property. I think when we look at reasonableness, and it's been stated by others, I think that what is being proposed is a reasonable use. It fits, we talked about DNR criteria in terms of avoiding excessive shoreline development. I think that speaks to the length of shoreline on this parcel relative to the size of the dock. It's not adding 21 Chanhassen City Council - June 8, 2009 docks. It's reducing it. This is you know protecting the natural features of the lake. It's improving the navigable waters so it clearly fits I think within the DNR standards, but is a parcel of this size, is it reasonable to have a dock of this size and that's really what it, what I think the question is and stepping back, all things considered, I think the answer is yes. It does. It is not an unreasonable request. It's a reasonable request. It's a reasonable use and so I do support the variance. I would, if I understand what the Planning Commission was seeking to do with regard to it's condition, and Councilwoman Tjornhom maybe we can talk a little bit about this. I would actually support the variance request but not include the condition on there. I don't know that we need the City to annually inspect this dock, or any dock at this point. We've got other issues in place from a nuisance issues and stuff like that so I don't know that we need to add that on as a condition to require the availability for annual inspection and I think even the wording of that was, if I can find that here quickly. There was some question about whether this would follow with the property or not. It specifically speaks to the applicant. You know a variance goes with the property, is that correct? Kate Aanenson: That's correct. Mayor Furlong: So the variance is going to be there and when we talk about appearance and fitness, I mean those are judgmental calls and I don't know that ultimately it's going to be up to property owners, just like all lakeshore owners in terms of maintaining their docks... Sol understand what the Planning Commission was trying to get to, having read their minutes, and the concern that they were trying to consider, but I'm glad to hear staff would be comfortable and not, if that condition was eliminated and I would certainly support the variance request without that condition. I think that's just a cleaner, better way to go forward so I'm certainly open to discuss that but those were my thoughts on that issue. Councilwoman Tjomhom: I just have, and I read the Planning Commission minutes too. Mayor Furlong: Sure. Councilwoman Tjornhom: I'm just, can staff refresh, and for those who haven't read the council, the Planning Commission minutes, what was the Planning Commission's reasoning for wanting the dock checked? Terry Jeffery: I think it's what Kate was talking about earlier. I think they just wanted to make sure that if we're allowing a permanent structure, which we haven't had a whole lot of on this lake. Allowing canopies on this dock and that was the few complaints we did receive, that was the bulk of it was how are the canopies going to look from my window. That staff would have an opportunity just to look and make sure it was held to good repair but I think Kate said it best when she said the investment that the applicant has made on this dock alone is motivation for him to keep it in good repair. Kate Aanenson: To be clear we do inspect beachlots. Mayor Furlong: Okay. 22 Chanhassen City Council - June 8, 2009 Terry Jeffery: Yep. Kate Aanenson: So I think that's, that was the tie in. I don't want to think that was just flippantly thrown out there. Because on beachlots sometimes there, you know when you have an HOA, a homeowners association, excuse me for the acronym, sometimes they may be in disrepair so we do try to check those and make sure that there's a right number of boats at those beachlots so I think that was just kind of a natural nexus to say well maybe, because this is a permanent dock, we don't have individual permanent docks on the lake that maybe that might be an appropriate tie. And that condition I think was kind of you know. Mayor Furlong: Okay. And that makes sense. I guess, and maybe it's a philosophical issue but unless there's really a public interest for government to be requiring annual inspections of someone's private property, I guess I'd avoid doing that. I haven't heard that here tonight and while there may be some concerns I think I'm comfortable with staff in terms of allowing the property owner to maintain their dock. Going forward. Any other thoughts or comments? We have, if there's no other thoughts or comments we have a motion at the beginning of the staff report. If somebody would like to make a motion. Councilwoman Ernst: I'll make it. City Council, I make a motion that we approve Planning Case 09-07 as shown on plans dated April 17, 2009 for a 46 foot variance request from the allowed 25 foot cross bar for docks as outlined in the staff report and adopt the attached Findings of Fact and Decision. Mayor Furlong: Would you include or exclude the single condition with that motion? Councilwoman Ernst: Excluding the annual inspection. Mayor Furlong: Condition. Councilwoman Ernst: Condition. Mayor Furlong: Okay. As recommended by the Planning Commission? Councilwoman Ernst: As recommended by the Planning Commission. Mayor Furlong: Okay. Is there a second to that motion? Councilwoman Tjornhom: Second. Councilman Utsey: I'll, go ahead. Councilwoman Tjomhom: Sorry Bryan. Councilman Utsey: No, go ahead. Mayor Furlong: Motion's been made and seconded. Any further discussion on the motion? 23 Chanhassen City Council - June 8, 2009 Councilwoman Ernst moved, Councilwoman Tjornhom seconded that the City Council approves Planning Case #09-07 as shown in plans dated April 17, 2009 for a 46 foot variance request from the allowed 25 foot crossbar for docks as outlined in the staff report and adopt the attached Findings of Fact and Decision. All voted in favor, except Councilman McDonald who opposed, and the motion carried with a vote of 4 to 1. Mayor Furlong: Very good. Thank you everyone. Appreciate everyone's involvement in this. That completes our items of business this evening. We'll move now to council presentations. Any council presentations? Todd Gerhardt: Mayor, council members. We do have a couple here this evening that missed visitor presentations. If you want to do it after council presentations. Mayor Furlong: No, let's take it right now. Let's take it right now. Please come up to the podium. If you could identify yourself. Name and address we'd appreciate it. VISITOR PRESENTATIONS: Jim Kramen: My name is Jim Kramen. This is my wife Grace. Mayor Furlong: Good evening. If you could state your address for the record too please. Jim Kramen: Absolutely. It's 739 Woodhill Drive. What brings out tonight, we recently bought the property about a year ago. What really brings us out tonight is, we've noticed there's been a lot of curbs around our area that have been, really being kind of reconstructed and recently we've noticed some potholes that have been fixed in our road but nothing but our curbs haven't been, this first picture what you see is directly in front of our house the curbs are really just being deteriorated. Being eroded and falling apart. Now that's because up, kind of up both ways here is essentially, we kind of live at the bottom of a hill. Now all the rain goes right down and it kind of accumulates here and the same with the other side. It goes right down the other side. It comes around and it accumulates there. Well, now this picture right here, and this is after, this is probably a good, almost a day after it's been raining and it's still not gone. So not only are the curbs being eroded away but there's just lack of proper drainage, as you can see. And this is kind of an angle and again this is well after the fact of a light rain, which is really just builds up all throughout here right here. And it's just eating away at that. Now this is a well after the fact and as you can see the curb is just being gradually eated away. Councilwoman Tjornhom: Can I ask a question? Mayor Furlong: Yep. Councilwoman Tjornhom: I'm sorry, I couldn't hear what your address was. Jim Kramen: Oh yeah, it's 739 Woodhill Drive. 92 MEMORANDUM TO: Todd Gerhardt, City Manager CITYOF FROM: Terry Jeffery, Water Resources Coordinator CHMNSEN 7700 Market Boulevard DATE: June 8, 2009 PC Box 147 Chanhassen, MN 55317 SUBJ: Bhojwani Dock Variance — Planning Case #09-07 Adn a h;IrAon Phone: 952.227.1100 Fax. 952,227.1110 Routing INpeh:Rmne Phone:952.227.1180 Fax: 952.227.1190 Fn9 Phone: 952,227.1160 Fax: 952.227,1170 Finance Phone: 952,227.1140 Fax: 952.227.1110 Park & Remabn Phone: 952,227.1120 Fax, 952.227.1110 Recreagon Center 2310 Coulter Boulevard Phone: 952.227.1400 Fax: 952,227.1404 Planning & Natural Resources Phone. 952,227.1130 Fax:952,227.1110 PUMIC Works 1591 Park Road Phone: 952.227.1300 Fax: 952.227,1310 Serra Center Phone: 952,227.1125 Fax: 952.227.1110 Web Site hwrw achanhassen.mn.us PROPOSED MOTION: "The City Council approves Planning Case 09-07 as shown in plans dated April 17, 2009 for a 46-foot variance request from the allowed 25-foot crossbar for docks as outlined in the staff report, and adopt the attached Findings of Fact and Decision." City Council approval requires a majority of City Council present. EXECUTIVE SUMMARY The applicant is requesting an after -the -fact variance from Section 6-26(2)(c) of the Chanhassen City Code. This section of the code reads, "The crossbar of any dock shall not measure in excess of 25 feet in length." The applicant has constructed the frame for a dock that will measure 71 feet in length approximately parallel to the shoreline when completed. The total variance requested is 46 feet. Plannine Commission Update A public hearing was held at the May 19, 2009 Planning Commission meeting for this item. The Planning Commission voted 5 to 0 to approve the request for an after - the -fact variance for the construction of a 71-foot dock crossbar as measured parallel to the shoreline. Staff initially recommended approval of two slips which measured 46 feet in crossbar length. The Planning Commission drew the following conclusion: "A one -size -fits -all approach may not be appropriate for riparian property rights. Given that the applicant has more than ten times the length of shoreline as the typical lot on Lake Minnewashta, the denial of their requested use could be viewed as restricting their use and enjoyment of their lake property." The Planning Commission approved the request with the condition that the applicant allows his permanent dock to be inspected by the City for review of appearance and fitness of use on an annual basis. The Planning Commission minutes for May 19, 2009 are item la of the City Council packet. Chanhassen a a CommuNy for life • Providing for Today and Planning for Tomarow Todd Gerhardt Bhojwani Dock Variance June 8, 2009 Page 2 RECOMMENDATION The Planning Commission recommends the City Council adopt the following motion: "The Chanhassen City Council approves Planning Case 09-07 as shown in plans dated April 17, 2009 for a 46-foot variance request from the allowed 25-foot crossbar for docks as outlined in the staff report, and adopts the attached Findings of Fact and Decision, with the following condition: 1. The applicant allows his permanent dock to be inspected by the City for review of appearance and fitness of use on an annual basis. ATTACHMENTS 1. Findings of Fact and Decision. 2. Public Hearing Notice and Affidavit of Mailing. 3. Planning Commission Staff Report (Revised) Dated June 8, 2009. gAplan\2009 planning cases\09-07 bhojwaoi dock varianceexecutive summary Am CITY OF CHANHASSEN CARVER AND HENNEPIN COUNTIES, MINNESOTA FINDINGS OF FACT AND DECISION Application of Gary Bhojwani for an after -the -fact variance for the purpose of constructing a dock with a 71-foot long crossbar — Planning Case 09-07. On May 19, 2009, the Chanhassen Planning Commission met at its regularly scheduled meeting to consider the application. The Planning Commission conducted a public hearing on the proposed variance preceded by published and mailed notice. The City Council makes the following: FINDINGS OF FACT 1. The property is currently zoned Single -Family Residential (RSF). 2. The property is guided in the Chanhassen Comprehensive Plan for Residential — Low Density (1.2 — 4.0 units per net acre) uses. 3. The legal description of the property is Tracts I & L, Registered Land Survey No. 7. 4. Variance Findings — Section 6-23 of the City Code provides the following criteria for the granting of a dock variance: a. By reason of topography, soil conditions or other physical characteristics of the lakeshore site, strict compliance with the dock requirements could cause an exceptional or undue hardship to the enjoyment of the use of the lakeshore site; provided, that a variance may be granted only if the variance does not adversely affect purpose and intent of this chapter. Finding: The applicant's property has more than ten times the length of shoreline of the typical lot on Lake Minnewashta. Because of the unique circumstances involving the exceptional shoreline length it is an undue hardship to restrict the size of the dock on the property because the proposed use under the circumstances is reasonable. b. Undue hardship is defined in Section 20-58 of the City Code to mean that the literal enforcement of this chapter would cause undue hardship. For purposes of the definition of undue hardship, 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 in developed neighborhoods pre-existing standards exist. Variances that blend with these pre-existing standards without departing downward from them meet these criteria. Finding: There are nine single-family residential properties with lake frontage within 500 feet of the applicant's residence. These properties have lake frontage ranging from 85 to 140 feet. All of these properties maintain temporary docks and can, by code, moor up to three boats overnight. None of these properties have a crossbar on any dock in excess of 25 feet as allowed by code but the combined shoreline of these nine lots is shorter than the Applicant's. Limiting the length of the crossbar that the applicant may construct would prescribe a standard which is not consistent with the amount of lakeshore the applicant currently owns and this restriction would, in and of itself, constitute a hardship. 5. The planning report #09-07, dated June 8, 2009, prepared by Terry Jeffery, et al, is incorporated herein. The City Council approves planning Case 09-07 as shown in plans dated received April 17, 2009, for a 46-foot variance request from the allowed 25-foot crossbar for docks. ADOPTED by the Chanhassen City Council this 8`" day of June, 2009. CITY OF CHANHASSEN IM ATTEST: Todd Gerhardt, City Manager/Clerk Thomas A. Furlong, Mayor CITY OF CHANHASSEN AFFIDAVIT OF MAILING NOTICE STATE OF MINNESOTA) ) ss. COUNTY OF CARVER ) I, Karen J. Engelhardt, being first duly sworn, on oath deposes that she is and was on May 28, 2009, the duly qualified and acting Deputy Clerk of the City of Chanhassen, Minnesota; that on said date she caused to be mailed a copy of the attached notice of Public Hearing for the Bhojwani Dock Variance — Planning Case 09-07 to the persons named on attached Exhibit "A", by enclosing a copy of said notice in an envelope addressed to such owner, and depositing the envelopes addressed to all such owners in the United States mail with postage fully prepaid thereon; that the names and addresses of such owners were those appearing as such by the records of the County Treasurer, Carver County, Minnesota, and by other appropriate records. KarpA J. E gelh t, De ty Clerk Subscribed and sworn to before me thisc�� day of Mw l 2009. _ 1 Notary P lic KIM T. MEUWISSEN lw�� Commissbn Ecpires Jen 31, 2010 Notice of Public Hearing Chanhassen City Council Meeting Date & onday, June 8, 2009 at 7:00 p.m. This hearing Time:ay Ton not start until later in the evening, depending the order of the agenda. Location: City Hall Council Chambers, 7700 Market Blvd. Request for an after -the -fact Variance to place a Proposal: dock on property zoned Single Family Residential, RSF Applicant: Gary Bho'wani 3301 Shore Drive Property Location: A location map is on the reverse side of this notice. The purpose of this public hearing is to inform you about the applicant's request and to obtain input from the neighborhood about this project. During the meeting, the Mayor will lead the public hearing What through the following steps: Happens at 1. Staff will give an overview of the proposed the Meeting: project. 2. The applicant will present plans on the project. 3. Comments are received from the public. 4. Public hearing is closed and the City Council discusses the project. If you want to see the plans before the meeting, please visit the City's projects web page at: www.ci.chanhassen.mn.us/serv/plan/09-07.html. If you wish to talk to someone about this project, please contact Terry Jeffery by email at Questions & tiefferv@ci.chanhassen.mn.us or by phone at 952- Comments: 227-1168. If you choose to submit written comments, it is helpful to have one copy to the department in advance of the meeting. Staff will provide copies to the City Council. The staff report for this item will be available online on the project web site listed above the Thursday prior to the City Council meeting. Notice of Public Hearing Chanhassen City Council Meeting Date & Monday, June 8, 2009 at 7:00 p.m. This hearing may not start until later in the evening, depending Time: on the order of the agenda. Location: City Hall Council Chambers, 7700 Market Blvd. Request for an after -the -fact Variance to place a Proposal: dock on property zoned Single Family Residential, RSF Applicant: I ary Bho'wani Property 3301 Shore Drive A location map is on the reverse side of this Location: notice. The purpose of this public hearing is to inform you about the applicant's request and to obtain input from the neighborhood about this project. During the meeting, the Mayor will lead the public hearing What through the following steps: Happens at 1. Staff will give an overview of the proposed the Meeting: project. 2. The applicant will present plans on the project. 3. Comments are received from the public. 4. Public hearing is closed and the City Council discusses the project. If you want to see the plans before the meeting, please visit the City's projects web page at: www.ci.chanhassen.mn.us/serv/plan/09-07.html. If you wish to talk to someone about this project, please contact Terry Jeffery by email at tiefferv@ci.chanhassen.mn.us or by phone at 952- Questions & 227-1168. If you choose to submit written Comments: comments, it is helpful to have one copy to the department in advance of the meeting. Staff will provide copies to the City Council. The staff report for this item will be available online on the project web site listed above the Thursday prior to the City Council meeting. ALAN C & CHRISTINE L LEIDING BARBARA DIANE WINTHEISER BRIAN N & NANCY L TICHY 6331 DOGWOOD AVE 3321 SHORE DR 6240 CYPRESS DR EXCELSIOR MN 55331-8850 EXCELSIOR MN 55331-7815 EXCELSIOR MN 55331-8839 DAVID M DRESSLER 6341 DOGWOOD AVE EXCELSIOR MN 55331-8850 L W INSTON & ELAINE G HAGEN 6300 CYPRESS DR EXCELSIOR MN 55331-8841 MINNEWASHTA SHORES INC C/O PATRICIA CRANE 6341 CYPRESS DR EXCELSIOR MN 55331-8842 PAUL DAVID COFFEY & LAUREL COFFEY 6351 DOGWOOD AVE EXCELSIOR MN 55331-8850 ROBERT M & SUSAN S MACUNA 6340 CYPRESS DR EXCELSIOR MN 55331-8841 WILLIAM J & CATHRYN L FOSSING 6330 CYPRESS DR EXCELSIOR MN 55331-8841 GARY C & KELLI R BHOJWANI 3301 SHORE DR EXCELSIOR MN 55331-7815 LADD N & SIA B LANGUM 6331 CYPRESS DR EXCELSIOR MN 55331-8842 NATHANIEL C MALEN & KATHRYN L MIHULKA 6321 DOGWOOD AVE EXCELSIOR MN 55331-8850 PAUL L & VIRGINIA L RICHIE 3342 SHORE DR EXCELSIOR MN 55331-7814 STEVEN G & JEAN K WOOD 6341 CYPRESS DR EXCELSIOR MN 55331-8842 JONATHAN D & KRISTI K HARRIS 3241 DARTMOUTH DR EXCELSIOR MN 55331-8844 LARRY B & MARY CAROL OPPEGAARD 6310 CYPRESS DR EXCELSIOR MN 55331-8841 PAUL D QUARBERG & JANET JASIN QUARBERG 3311 SHORE DR EXCELSIOR MN 55331-7815 RACHEL MARY LIVINGSTON 3331 SHORE DR EXCELSIOR MN 55331-7815 WILLIAM & JEAN M MCDANIEL 3341 SHORE DR EXCELSIOR MN 55331-7815 Bhojwani Dock Variance Request 3301 Shore Drive Public Hearing Notification Area (300 feet) City Council Meeting June 8, 2009 State Hwy 7 Lake Minnewashta Legend Subject Property - Properties within 300 feet PROPOSED ALTERNATE MOTIONS: "The City Council approves Planning Case 09-07 as shown in plans dated Apra 17, 2009 for a 46-foot variance request from the allowed 25-foot crossbar for docks as outlined in the staff report, and adopts the attached Findings of Fact and Decision." in plans dated r-eeeil, ed April 17, 2009, for- a 46 feet varianee fequest fi;afft dhe AaRived 24 foAt denial.The Planning Ceffunissien feeenunepAs fliat the Cky Cotmeil deny planning Case 09 07 as she%% er"The Planr4ng Commission feeommends dwt the City Couneil approve Planning Case 09 07 as - plans dated _veeiyed April 17 2009 for- e 16 feat variance atefn ahe ..u,....,.a ;te rot _ the - laeefae-.t e f two slips a outlined in site staf0.-epeA . ubjeet to eenditiens, and adopt of the attaehed findings of faet and reeemantenda4i SUMMARY OF REQUEST: The applicant is requesting an after -the -fact variance from Section 6-26(2)(c) of the Chanhassen City Code. This section of the code reads, "The crossbar of any dock shall not measure in excess of 25 feet in length." The applicant has constructed the frame for a dock that will measure 71 feet in length approximately parallel to the shoreline when completed. The total variance requested is 46 feet. LOCATION: 3301 Shore Drive —Tract I and Tract L of Registered Land Survey No. 7 APPLICANT: Gary Bhojwani 3301 Shore Drive Excelsior, MN 55331 PRESENT ZONING: Single -Family Residential (RSF) 2030 LAND USE PLAN: Residential -Low Density (1.2-4 units/acre) ACREAGE: 3.89 Acres LENGTH OF SHORELINE: 1,169 lineal feet Bhojwani Dock Variance Planning Case 09-07 A '�009 June 8, 2009 Page 2 of 8 LEVEL OF CITY DISCRETION IN DECISION -MAKING: The City's discretion in approving or denying a variance is limited to whether or not the proposed project meets the standards in the Boats and Waterways Ordinance for a variance. The City has a relatively high level of discretion with a variance because the applicant is seeking a deviation from established standards. This is a quasi-judicial decision. APPLICABLE REGUATIONS This variance request is subject to Chapter 6. PROPOSAL SUMMARY The applicant is requesting an after -the -fact variance for the construction of a dock that measures 71 feet in length measured parallel to the shoreline. The city code allows a maximum length of 25 feet measured parallel to the shoreline. The site is bordered by Lake Minnewashta on the south and east and is southeast of Cypress Drive. The property is a riparian lot, with an area of 3.89 acres, 1,169 feet of shoreline and is zoned Residential Single Family (RSF). The Planning Commission recommended approval of the applicant's request. Bhojwani Dock Variance Planning Case 09-07 A ' "�009 June 8, 2009 Page 3 of 8 BACKGROUND The applicant purchased the property in 2007. At the time, the site contained two docks with comparable overall length and surface area to the dock proposed by the applicant. Staff located aerial photographs that date back to 1991 that showed two seasonal docks; however, staff was unable to locate any form of documentation permitting the two structures. City Code allows one dock per lakeshore property. This is an existing non -conforming use. Construction on the new dock began in good faith. The applicant's contractor reviewed city code and concluded that construction of the dock did not require a city permit. the two seasonal docks with one permanent and comparable in size d improved sight lines and eliminated the non -conformity of having two docks; however, dock has dimensions that exceed the limits permitted by ordinance. The goal was to combine ock. The new location had the new As construction began, staff received a complaint regarding a dock that was being constructed on Lake Minnewashta. The caller was concerned with the size of the structure. Staff inspected the site and found a dock with three slips. Staff determined that the dock exceeded the 25-foot crossbar length limitation permitted by ordinance. Staff issued a Stop Work Order until a solution could be reached. The applicant requested permission to complete the section of the dock that met ordinance requirements. He entered into an agreement with the city enabling him to complete the fast slip. It was concluded that one slip is in compliance with City Code. The applicant had two choices; bring the dock into compliance or apply for a variance. The applicant elected to apply for a variance. Bhojwani Dock Variance Planning Case 09-07 �_._ 'moo; June 8, 2009 Page 4 of 8 Staff has received 22 emails and/or letters regarding the dock. They have been included for your review. CITY CODE The pertinent sections of the City Code dealing with variances read as follows: Sec.6-23. Variances. (a) The city council may grant a variance from the dock requirements of this article where it is shown that by reason of topography, soil conditions or other physical characteristics of the lakeshore site, strict compliance with the dock requirements could cause an exceptional or undue hardship to the enjoyment of the use of the lakeshore site; provided, that a variance may be granted only if the variance does not adversely affect purpose and intent of this chapter. Sec. 20-58 (a)Undue hardship is addressed in Chapter 20 Section 58 (a). That the literal enforcement of this chapter would cause undue hardship. For purposes of the definition of undue hardship, 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 in developed neighborhoods pre-existing standards exist. Variances that blend with these pre-existing standards without departing downward from them meet these criteria. ANALYSIS Docks are regulated under Chapter 6 of the City Code. The following constitute staffs findings of the applicant's request. Chapter 6, Article lI Structures Section 6-24. Location Restrictions Request No dock, mooring or other structure shall be so located as to: (1) Obstruct the navigation of any lake; When the applicant was considering where to locate the dock, it was decided that it should not be placed at the previous location as other neighbors had expressed concern that the dock was difficult to see due to poor sight lines created by the shape of the shoreline and existing vegetation. The current placement should not pose any obstruction to normal boat traffic on the lake. Bhojwani Dock Variance Planning Case 09-07 May 19 2009 June 8, 2009 Page 5 of 8 Section 6-24. Location Restrictions Request (2) Obstruct reasonable use or access to any other The applicant has 1,169 feet of shoreline. dock, mooring or other structure authorized The current dock location is at least 540 under this chapter; feet from any adjoining property. (3) Present a potential safety hazard; or The applicant selected this placement with the input of their neighbors. The neighbor indicated that the placement of the previous owner's dock was difficult to see and posed a potential hazard when water skiing. (4) Be detrimental to significant fish and wildlife The applicant considered the location of habitat or protected vegetation. the wetland north of the current location when selecting the dock placement. This current placement was selected to avoid impacts to the wetland. Section 6-26 regulates dimensions, number of docks, etc. The following is staff findings: Section 6-26. Docks. Request No more than one dock shall be When the applicant purchased the property in April of 2007 permitted on any lakeshore site. there were two docks located on the property (see attached historical aerial photographs). The applicant is removing this non -conforming use by consolidating these two docks into one dock. This action eliminated the nonconformity of having two docks, however, has created a structure that exceeds maximum crossbar length requirements. No dock shall exceed six feet in The dock extends fifty (50) feet from the shore line. The width and no dock shall exceed applicant stated that he chose this location for several reasons, the greater of the following one of which being that a shorter dock could be used to reach lengths: deeper water. (1) 50 feet; or (2) The minimum straight-line distance necessary to reach a water depth of four feet. Bhojwani Dock Variance Planning Case 09-07 AM '�9 June 8, 2009 Page 6 of 8 Section 6-26. Docks. Request The width (but not the length) The crossbar extends 54 feet north from the main dock and a of the cross -bar of any "T" or swimming platform extends 12 feet south of the main dock. "L" shaped dock shall be Combined with the dock width of five (5) feet, the total length included in the computation of of the crossbar is 71 feet. This has necessitated the variance length described in the request. preceding sentence. The cross- Sp• bar of any such dock shall not measure in excess of 25 feet in 13 5'32'� length. No dock shall encroach upon any dock setback zone; st provided, however, that the I owners of any two abutting Slip A 13• lakeshore sites may erect one common dock within the dock 5. setback zone appurtenant to the t abutting lakeshore sites, if the o dock is the only dock on the two A Q slip a 13' . lakeshore sites and if the dock I+ otherwise conforms with the provisions of this chapter. Slip C 1I3' 5, f 0 12. 3 1 r a'a The applicant has 1,169 feet of shoreline and the dock is located approximately central on the property. There is no encroachment into the dock setback zone. No person shall store fuel upon The applicant has no intention of storing fuel on the dock. any dock. No oscillating, rotating, flashing The applicant has no intention of using a light with any of the or moving sign or light may be prohibited characteristics. used on any dock. No advertising signs shall be The applicant has no intention of displaying any displayed from any dock. advertisement signs on the dock. Access across wetlands shall be The applicant selected the dock location for a variety of subject to the standards set forth reasons. In addition the length needed to reach a suitable in section 20-405. Docks shall water depth, the applicant elected this location to avoid be elevated a minimum of six to impacts to the preserve wetland located north of the current eight inches above the ordinary dock location. The dock will meet the minimum height high water elevation. requirements. Bhojwani Dock Variance Planning Case 09-07 "'mom 2009 June 8, 2009 Page 7 of 8 MISCELLANEOUS As much as 18 feet of the pilings are buried below the lake bottom. This requires special equipment for installation or removal. This equipment is a wheeled vehicle which needs to be driven on the frozen surface of the lake. Due to this fact, the pilings will could not be removed until there are safe ice conditions on the lake. This fact should be considered when rendering a decision on this issue. Corrections will could not occur prior to such a time when travel on the lake is safe. VARIANCE Sec.6-23. (a) Variances. By reason of topography, soil conditions or other physical characteristics of the lakeshore site, strict compliance with the dock requirements could cause an exceptional or undue hardship to the enjoyment of the use of the lakeshore site; provided, that a variance may be granted only if the variance does not adversely affect purpose and intent of this chapter. Finding: There are ne ..,.....:,..., , _ .: of the si4e ♦t.,.would . °,hide , ,,.,Bane, with the City !`ode feqtfifements. A one -size -fits -all approach may not be appropriate for riparian property rights. Given that the applicant has more than ten times the length of shoreline as the typical lot on Lake Minnewashta, the denial of their requested use could be viewed as restricting their use and enjoyment of their lake property. Sec. 20-58 (a) Undue Hardship That the literal enforcement of this chapter would cause undue hardship. For purposes of the definition of undue hardship, 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 in developed neighborhoods pre-existing standards exist. Variances that blend with these pre-existing standards without departing downward from them meet these criteria Finding: There are nine single-family residential properties with lake frontage within 500 feet of the applicant's residence. These properties have lake frontage ranging from 85 to 140 feet. All of these properties maintain temporary docks and can, by code, moor up to three boats overnight. None of these properties have a crossbar on any dock in excess of 25 feet as allowed by code. Given City Code indicates that three boats may be moored overnight, staff concludes that this, coupled with access to the lake, are reasonable uses. The applicant could store three boats without building three individual slips thereby reducing, if not eliminating, the variance requested. The applicant has indicated that the two lifts he has purchased are designed such that they need to be mounted on the pilings rather than resting on the lake bottom. Even allowing for the two lifts, the applicant could eliminate the third slip and the swimming Bhojwani Dock Variance Planning Case 09-07 A44y 19, 2009 June 8, 2009 Page 8 of 8 platform and still have reasonable use of the lake — even allowing overnight dockage of all three watercraft he owns. The third watercraft would not be enclosed within a slip but rather would have to be docked alongside the main dock. This configuration would require a crossbar 41 feet in length and a variance of 16 feet from the allowed 25-foot crossbar. It has been argued that by limiting the length of the crossbar which the applicant may construct, a standard would be prescribed which is not consistent with the amount of lakeshore the applicant currently owns and this restriction would, in and of itself, constitute a hardship. RECOMMENDATION "The Planning Commission meemmen& diat the City Council deny approves Planning Case 09-07 as shown in plans dated received April 17, 2009, for a 46-foot variance request from the allowed 25- foot crossbar for docks as outlined in the staff report, and adopts the attached findings of facts and decision aefien fer deniah" Y.. ... .. .......... . ... ..... .. .. �� HTAI 1. The applieaAr"I Femove the-fne3t aei4hed7 slip Fesulting in two slips 2. The epplicani shallemo:e the platfenn. 4. The overall length of the crossbar shall not exceed 44- 71 feet. 5. The applicant allows his permanent dock to be inspected by the City for review of appearance and fitness of use on an annual basis. ATTACHMENTS 1. Findings of Fact Alternate A (Denial). 2. Findings of Fact Alternate B (Approval). 3. Application. 4. Entails and letters from property owners. 5. Public Hearing Notice and Affidavit of Mailing. 6. Survey dated received April 17, 2009. g:\plan\2009 planning cases\09-07 bhojwani dock varim"\staff report_ cc_060809.doc CITY OF CHANHASSEN CARVER AND HENNEPIN COUNTIES, MINNESOTA FINDINGS OF FACT AND RECONDAENDATION ALTERNATE A Application of Gary Bhojwani for an after -the -fact variance for the purpose of constructing a dock with a 71-foot long crossbar — Planning Case 09-07. On May 19, 2009, the Chanhassen Planning Commission met at its regularly scheduled meeting to consider the application. The Planning Commission conducted a public hearing on the proposed variance preceded by published and mailed notice. The Planning Commission heard testimony from all interested persons wishing to speak and now makes the following: FINDINGS OF FACT 1. The property is currently zoned Single -Family Residential (RSF). 2. The property is guided in the Chanhassen Comprehensive Plan for Residential —Low Density (1.2 — 4.0 units per net acre) uses. 3. The legal description of the property is Tracts I & L, Registered Land Survey No. 7. 4. Variance Findings — Section 6-23 of the City Code provides the following criteria for the granting of a dock variance: a. By reason of topography, soil conditions or other physical characteristics of the lakeshore site, strict compliance with the dock requirements could cause an exceptional or undue hardship to the enjoyment of the use of the Lakeshore site; provided, that a variance may be granted only if the variance does not adversely affect purpose and intent of this chapter. Finding: There are no physical characteristics of the site that would preclude compliance with the City Code requirements. b. Undue hardship is defined in Section 20-58 of the City Code to mean that the literal enforcement of this chapter would cause undue hardship. For purposes of the definition of undue hardship, 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 in developed neighborhoods pre-existing standards exist. Variances that blend with these pre-existing standards without departing downward from them meet these criteria. Finding: There are nine single-family residential properties with lake frontage within 500 feet of the applicant's residence. These properties have lake frontage ranging from 85 to 140 feet. All of these properties maintain temporary docks and can, by code, moor up to three boats overnight. None of these properties have a crossbar on any dock in excess of 25 feet as allowed by code. Given City Code indicates that three boats may be moored overnight, staff concludes that this, coupled with access to the lake, are reasonable uses. The applicant could store three boats without building three individual slips, thereby reducing, if not eliminating, the variance requested. The applicant has indicated that the two lifts he has purchased are designed such that they need to be mounted on the pilings rather than resting on the lake bottom. Even allowing for the two lifts, the applicant could eliminate the third slip and the swimming platform and still have reasonable use of the lake — even allowing overnight dockage of all three watercraft he owns. The third watercraft would not be enclosed within a slip but rather would have to be docked alongside the main dock. This configuration would require a crossbar 41 feet in length and a variance of 16 feet from the allowed 25-foot crossbar. 5. The planning report #09-07, dated May 19, 2009, prepared by Terry Jeffery, et al, is incorporated herein. RECOMMENDATION The Planning Commission recommends that the City Council deny Planning Case 09-07 as shown in plans dated received April 17, 2009, for a 46-foot variance request from the allowed 25- foot crossbar for docks. ADOPTED by the Chanhassen Planning Commission this 19s' day of May, 2009. CHANHASSEN PLANNING COMMISSION RW Its Chairman CITY OF CHANHASSEN CARVER AND HENNEPIN COUNTIES, MINNESOTA FINDINGS OF FACT AND RECOMMENDATION ALTERNATE B IIM Application of Gary Bhojwani for an after -the -fact variance for the purpose of constructing a dock with a 71-foot long crossbar — Planning Case 09-07. On May 19, 2009, the Chanhassen Planning Commission met at its regularly scheduled meeting to consider the application. The Planning Commission conducted a public hearing on the proposed variance preceded by published and mailed notice. The Planning Commission heard testimony from all interested persons wishing to speak and now makes the following: FINDINGS OF FACT 1. The property is currently zoned Single -Family Residential (RSF). 2. The property is guided in the Chanhassen Comprehensive Plan for Residential — Low Density (1.2 — 4.0 units per net acre) uses. 3. The legal description of the property is Tracts I & L, Registered Land Survey No. 7. 4. Variance Findings — Section 6-23 of the City Code provides the following criteria for the granting of a dock variance: a. By reason of topography, soil conditions or other physical characteristics of the lakeshore site, strict compliance with the dock requirements could cause an exceptional or undue hardship to the enjoyment of the use of the lakeshore site; provided, that a variance may be granted only if the variance does not adversely affect purpose and intent of this chapter. Finding: There are no physical characteristics of the site that would preclude compliance with the City Code requirements. b. Undue hardship is defined in Section 20-58 of the City Code to mean that the literal enforcement of this chapter would cause undue hardship. For purposes of the definition of undue hardship, 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 in developed neighborhoods pre-existing standards exist. Variances that blend with these pre-existing standards without departing downward from them meet these criteria. Finding: There are nine single-family residential properties with lake frontage within 500 feet of the applicant's residence. These properties have lake frontage ranging from 85 to 140 feet. All of these properties maintain temporary docks and can, by code, moor up to three boats overnight. None of these properties have a crossbar on any dock in excess of 25 feet as allowed by code. Given City Code indicates that three boats may be moored overnight, staff concludes that this, coupled with access to the lake, are reasonable uses. The applicant could store three boats without building three individual slips, thereby reducing, if not eliminating, the variance requested. The applicant has indicated that the two lifts he has purchased are designed such that they need to be mounted on the pilings rather than resting on the lake bottom. Even allowing for the two lifts, the applicant could eliminate the third slip and the swimming platform and still have reasonable use of the lake — even allowing overnight dockage of all three watercraft he owns. The third watercraft would not be enclosed within a slip but rather would have to be docked alongside the main dock. This configuration would require a crossbar 41 feet in length and a variance of 16 feet from the allowed 25-foot crossbar. 5. The planning report #09-07, dated May 19, 2009, prepared by Terry Jeffery, et al, is incorporated herein. RECOMMENDATION The Planning Commission recommends that the City Council approve Planning Case 09- 07 as shown in plans dated received April 17, 2009, for a 16-foot variance request from the allowed 25-foot crossbar for docks with the following conditions: 1. The applicant shall remove the most northerly slip resulting in two slips. 2. The applicant shall remove the platform. 3. The final configuration shall comply with the configuration shown below. 4. The overall length of the crossbar shall not exceed 41 feet. ADOPTED by the Chanhassen Planning Commission this 19`" day of May, 2009. CHANHASSEN PLANNING COMMISSION 110 Its Chairman rLQA0C Planning Case No. C l" c-) CITY OF CHANHASSEN 7700 Market Boulevard — P.O. Box 147 Chanhassen, MN 55317 — (952) 227-1100 ,,Tv OF CHANHASSEN RECEIVED DEVELOPMENT REVIEW APPLICATION APR 17 2009 and Address: Gary C. Bhojwani 3301 Shore Drive Excelsior, MN 55331 Contact: Phone:612 345-0930 Fax: Email: gary.bhojwani@allianzlife.com uwner Name ana Haaress: Gary C. Bhojwani 3301 Shore Drive Excelsior, MN 55331 Contact: Phone: 612 345-0930 Fax: Email: gary.bhoiwani@allianzlife.com NOTE: Consultation with City staff is required prior to submittal, including review of development plans Comprehensive Plan Amendment Conditional Use Permit (CUP) Interim Use Permit (IUP) Non -conforming Use Permit Planned Unit Development' Rezoning Sign Permits Sign Plan Review Site Plan Review (SPR)' Subdivision' Temporary Sales Permit Vacation of Right-of-Way/Easements (VAC) X Variance (VAR) �4- eo Wetland Alteration Permit (WAP) Zoning Appeal Zoning Ordinance Amendment X Notification Sign - $200 (City to install and remove) X E�smww for Filing Fees/ orney Cost' 43 UP/SPR/VA A AP/Metes & Bounds - $450 Minor SUB TOTAL FEE $ `iD0 « C.t--* � L I An additional fee of $3.00 per address within the public hearing notification area will be invoiced to the applicant prior to the public hearing. `Sixteen (16) full-size folded copies of the plans must be submitted, including an 8%" X 11" reduced copy for each plan sheet along with a digital copy in TIFF -Group 4 ('.tif) format. "Escrow will be required for other applications through the development contract. Building material samples must be submitted with site plan reviews. NOTE: When multiple applications are processed, the appropriate fee shall be charged for each application. PROJECT NAME: Bhojwani Dock LOCATION: 3301 Shore Drive, Excelsior, MN 55331 LEGAL DESCRIPTION AND PID: -td_7 o Gcr S0 TOTALACREAGE: WETLANDS PRESENT: % YES NO PRESENT ZONING: RSF REQUESTED ZONING: N/A PRESENT LAND USE DESIGNATION: Residential REQUESTED LAND USE DESIGNATION: N/A REASON FOR REQUEST: To allow completion of a permanent dock that is 70 Feet wide (vs. 25 Feet wide) FOR SITE PLAN REVIEW: Include number of existing employees: N/A and new employees: N/A 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. A determination of completeness of the application shall be made within 15 business days of application submittal. A written notice of application deficiencies shall be mailed to the applicant within 15 business days of application. This is to certify that I am making application for the described action by the City and that I am responsible for complying 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. 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. Signature of Applic nt Date */&/D Signature of Fee Ow Date SCANNED GAPLANTorms\Development Review Application.DOC Rev. 1/08 Jeffery, Terry From: Larry Oppegaard [larry.oppegaard@gmail.com] Sent: Tuesday, May 12, 2009 10:02 AM To: Furlong, Tom; Gerhardt, Todd; Aanenson, Kate; Jeffery, Terry; gary.bhojwani@allianzlife.com Subject: Bhojwani Dock May 12, 2009 Chairperson and Members of the Chanhassen Planning commission City of Chanhassen 7700 Market Boulevard Chanhassen, MN 55317 Re: Bhojwani Dock (3301 Shore Drive) Dear Chairperson and Members: My name is Larry Oppegaard, 6310 Cypress Drive, Excelsior MN 55331. Telephone number 952.474.6047. I am a next door neighbor of Kelli and Gary and their three school age children. This will be my fortieth (40) year at the lake. I was also a former president of the Minnewashta Shores Association that is directly adjacent to the their property. The tipping point for me is twofold: • The dock looks great; and certainly doesn't detract from the beauty or usage of Lake Minnewashta. I understand that the width of the dock exceeds the City's stipulated dimensions. However, this dock is fine with me when considered against the dock to shoreline ratio. I have no objection to allowing the Bhojwani's to complete their dock. I would favor a neighborly waiver! Sincerely, Larry B. Oppegaard Jeffery, Terry From: gzilla32 [gzilla32@aol.com] Sent: Friday, May 01, 2009 5:40 PM To: Gary.Bhojwani@allianzlife.com; Furlong, Tom; Gerhardt, Todd; Aanenson, Kate; Jeffery, Terry Subject: Bhojwani Dock Dear Chairperson and Members, My name is Rick Helling. I live on Lake Minnewashta at the address 3672 Landings Drive, Excelsior 55331. My phone number is 952-470-0249. I live west of the Bhojwani's and am familiar with their dock situation. My opinion is that the dock is not an eyesore or a detriment to our beautiful lake. I am aware that the proposed dock exceeds the City s stipulated dimensions. But, I believe that with a shoreline the size of the Bhojwani's (over 1200% a dock of this size is not excessive. I voice no objection to allowing the Bhojwani's to finish construction of their dock. I ask that you allow completion of the dock. Sincerely, Rick Helling Jeffery, Terry From: Jay Wissink jjwissink@thearistosgroup.com] Sent: Friday, May 01, 2009 4:17 PM To: Furlong, Tom; Gerhardt, Todd; Aanenson, Kate; Jeffery, Terry Cc: gary.bhojwani@allianzlife.com Subject: BHOJWANI DOCK Date: May 1, 2009 Chairperson and Members of the Chanhassen Planning commission City of Chanhassen 7700 Market Boulevard Chanhassen, MN 55317 Re. Bhojwani Dock (3301 Shore Drive) Dear Chairperson and Members: My name is Jay Wissink. My address is 6401 Landings Court. My phone number is 952-544-5270. I live near Lake Minnewashta and I am familiar with the Bhojwani's partially completed dock. I do not believe the dock in any way detracts from the beauty or usage of Lake Minnewashta. I understand that the width of the dock exceeds the City's stipulated dimensions (71' vs. 25'). However, a dock of this scale is completely appropriate when considered against the scale of the Bhojwani's total shoreline (over 1200'). I have no objection to allowing the Bhojwani's to complete their dock. I ask you to support the completion of its construction. Sincerely, Jay Wissink Jeffery, Terry From: Dirk Young [dirksbackyard@msn.coml Sent: Friday, May 01, 2009 9:21 AM To: Furlong, Tom; Gerhardt, Todd; Aanenson, Kate; Jeffery, Terry; gary.bhojwani@allianzlife.com Subject: Bhojwani Dock Chairperson and Members of the Chanhassen Planning commission City of Chanhassen 7700 Market Boulevard Chanhassen, MN 55317 Re. Bhoiwani Dock (3301 Shore Drive) Dear Chairperson and Members: My name is Dirk Young. My address is 3830 Maple Circle Excelsior, MN 55331. My phone number is 952-470- 9341. I live in the Pleasant Acres Homeowners Association on the west side of Lake Minnewashta. I have lived here for 17 years and have been boating on Lake Minnewashta for 25 years. I am familiar with the Bhojwani's partially completed dock. I do not believe the dock in any way detracts from the beauty or usage of Lake Minnewashta. I believe that the dock will enhance the lake and make for easier waterskiing access on that part of the lake. I understand that the width of the dock exceeds the City's stipulated dimensions (71' vs. 25). However, a dock of this scale is completely appropriate when considered against the scale of the Bhojwaas total shoreline (over 1200�. I also understand that the contractor received verbal confirmation from the city that the dock could be appropriately constructed. I have no objection to allowing the Bhojwa&s to complete their dock. I ask you to support the completion of its construction. Sincerely, Dirk Young 'D &&r MegYbang, Dirk's Backyard Landscape & Design 3830 Maple Circle Excelsior, MN 55331 (952) 470-9341 Jeffery, Terry From: Weinzetl, Jodi jjodi.weinzetl@medtronic.com] Sent: Friday, May 01, 2009 8:12 AM To: Furlong, Tom; Gerhardt, Todd; Aanenson, Kate; Jeffery, Terry Subject: 3301 Shore Drive - Bhojwani dock Chanhassen Council, I am writing to you in regards to the Bhojwani's dock issue - 3301 Shore Drive on Lake Minnewashta. My husband and I live on Lake Minnewashta and are aware of the Bhojwani's partially completed dock. I am surprised at the issues I have heard about and want to let you know that the dock is not a distraction or a hazard on Lake Minnewashta. I understand the size is out of your required guidelines but based on the Bhojwani's shoreline, is not inappropriate. We have no objection to allowing the Bhojwani's to complete their dock and sure hope you will allow them to do so. If you have questions, feel free to contact myself or my husband Tony. Our home # is 952- 380-3540. Sincerely, Jodi Weinzetl Medtronic Cardiovascular Minneapolis Regional Sales Manager 612-840-3496 (cell) 952-380-3541 (office) 952-380-3542 (fax) 1 Vascular Core Values - Integrity Respect for the Individual Results Orientation Trust Winning Attitude Spirit of Innovation [CONFIDENTIALITY AND PRIVACY NOTICE] Information transmitted by this email is proprietary to Medtronic and is intended for use only by the individual or entity to which it is addressed, and may contain information that is private, privileged, confidential or exempt from disclosure under applicable law. If you are not the intended recipient or it appears that this mail has been forwarded to you without proper authority, you are notified that any use or dissemination of this information in any manner is strictly prohibited. In such cases, please delete this mail from your records. To view this notice in other languages you can either select the following link or manually copy and paste the link into the address bar of a web browser: http://emaildisclaimer.medtronic.com 5 Jeffery, Terry From: Tim Jenzer [tjenzer@yahoo.com] Sent: Friday, May01, 2009 7:29 AM To: Furlong, Tom; Gerhardt, Todd; Aanenson, Kate; Jeffery, Terry Cc: gary.bhojwani@allianzlife.com Date: 4-01-2009 Chairperson and Members of the Chanhassen Planning commission City of Chanhassen 7700 Market Boulevard Chanhassen, MN 55317 Re: Bhojwani Dock (3301 Shore Drive) Dear Chairperson and Members: My name is Tim Jenzer. My address is 3920 Maple Shores Drive, My phone number is 952-470-1904. I live in the Lake Minnewashta area and I am familiar with the Bhojwanrs partially completed dock. I do not believe the dock in any way detracts from the beauty or usage of Lake Minnewashta. I understand that the width of the dock exceeds the City's stipulated dimensions (71' vs. 251. However, a dock of this scale is completely appropriate when considered against the scale of the Bhojwanfs total shoreline (over 1200'). 1 have no objection to allowing the Bhojwanfs to complete their dock. I ask you to support the completion of its construction. Sincerely, Tim Jenzer Jeffery, Terry From: Mary Oppegaard [besidemyself@mchsi.comj Sent: Monday, April 27, 2009 11:08 AM To: Furlong, Tom; Gerhardt, Todd; kaaneson@ci.chanhassen.mn.us; Jeffery, Terry; gary.bhojwani@allianzlife.com April 27, 2009 Chairperson and Members of the Chanhassen Planning Commission City of Chanhassen 7700 Market Boulevard Chanhassen, MN 55317 Re: Bhojwani Dock at 3301 Shore Drive Dear Chairperson and Members, I have lived in our home at Minnewashta Shores since 1970 and am passionate about preserving the health and beauty of Lake Minnewashta. I am familiar with the Bhojwani's new dock project. I support the building and completion of this dock and believe it to be of appropriate scale for the size of Bhojwani's shoreline and to be aesthetically pleasing. Bhojwanis are Minnewahta Iakeshore residents who have demonstrated that they care for our lake in ways that continue to preserve and increase it's water quality and that they appreciate the privilege of being a part of this lake's community experience. Please support the completion of their dock construction. Sincerely, Mary Oppegaard 6310 Cypress Drive Excelsior, MN 55331 952-474-6047 Jeffery, Terry From: Knoll, Peter [pknoll@knwgroup.com] Sent: Monday, April 27, 2009 7:09 AM To: Furlong, Tom; Gerhardt, Todd; Aanenson, Kate; Jeffery, Terry Cc: gary.bhojwani@allianzlife.com; Mary Knoll Subject: Bhojwani Dock in Lake Minnewashta April 27, 2009 Chairperson and Members of the Chanhassen Planning Commission City of Chanhassen 7700 Market Boulevard Chanhassen, MN 55317 Re: Bhojwani Dock - 3301 Shore Drive Dear Chairperson and Members: Our names are Peter & Mary Knoll. Our address is 3131 Dartmouth Drive. Our phone number is 952.470.2193. We live on Lake Minnewashta and are familiar with the Bhojwani's partially completed dock. We find it disturbing that the City of Chanhassen is reconsidering their approval of this dock AFTER granting approval in January 2009. If the City of Chanhassen wants to change any lake policy they should do so on a going forward basis, not retroactively. We do not believe the dock in any way detracts from the beauty or usage of Lake Minnewashta. Additionally, the Bhojwanis moved the footprint of this dock back so that it would in no way interfere with traffic around the point. We understand that the width of the dock exceeds the City's stipulated dimensions (71' vs. 26). However, a dock of this scale is completely appropriate when considered against the scale of the Bhojwani's total shoreline (over 1200'). We have no objection to allowing the Bhojwani's to complete their dock. We ask you to support the completion of its construction. Lastly, if approval is given by ANY person charged with such responsibility within the City of Chanhassen, whether written or oral, the City of Chanhassen should honor their commitment and not bend when another citizen gets vocal. Honor your commitment to The Bhojwanis. Sincerely, Peter & Mary Knoll 3131 Dartmouth Drive Chanhassen. MN *Securities and Investment Advisory Services offered through NFP Securities, Inc. a Broker/Dealer, Member FINRA/SIPC and a Federally Registered Investment Advisor. The KNW Group is an affiliate of NFP Securities, Inc. and a subsidiary of National Financial Partners Corp., the parent company of NFP Securities, Inc. Notice: This e-mail message and any attachment to this e-mail message may contain information that is confidential, proprietary, privileged, legally privileged and/or exempt from disclosure under applicable law. If you are not the intended recipient, please accept this as notice that any disclosure, copying, distribution or use of the information contained in this transmission is strictly prohibited. National Financial Partners Corp. reserves the right, to the extent and under circumstances permitted by applicable law, to retain, monitor and intercept e-mail messages to and from its systems. 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If you have received this e-mail in error, please immediately contact the sender by return e-mail or by telephone at 212-301-4000 and destroy the material in its entirety, whether electronic or hard copy format. 9 Jeffery, Terry From: Ken Johnson [KENJ@CMSDirect.com] Sent: Friday, April 24, 2009 2:20 PM To: Jeffery, Terry Subject: FW: Bhojwani Dock Variance Terry Jeffery — Water Resources Coordinator It has come to my attention the Bhojwani's on Lake Minnewashta (3301 Shore Drive) are being required to stop construction and now seek a variance for a dock that conforms to DNR guidelines. I live on Lake Minnewashta (3748 Landings Dr) and am familiar with the above mentioned partially completed dock. I realize the City has a different requirement than the DNR for size requirements. As a lake resident, I do not see how the planned size of this dock detracts in any way from the aesthetics or usage of Lake Minnewashta — in fact the Regional Park pier has more of an impact. Terry. I support allowing the completion of this dock as quickly as possible. In my opinion the delays imposed just add distractions and costs — be it to the Bhojwani's, the construction company or even to the city staff. I have chaired boards and commissions in another metro city for over 20 years. I know these boards and commissions are advisory to the council. To expedite the completion of construction rather than delay it through a variance process oust to prove a point?). I recommend the City Council just passes a resolution allowing the construction to be completed I believe they can do it. Ken Johnson (952)380-0776 10 Jeffery, Ter From: The Noacks [d.noack@mchsi.com] Sent: Friday, April 24, 2009 9:44 AM To: Furlong, Tom; Gerhardt, Todd; Aanenson, Kate; Jeffery, Terry Cc: gary.bhojwani@allianzlife.com Subject: Bhojwani dock Chairperson and Members of the Chanhassen Planning commission City of Chanhassen 7700 Market Boulevard Chanhassen, MN 55317 Re: Bhojwani Dock (3301 Shore Drive) Dear Chairperson and Members: My name is Don Noack, and I live on Lake Minnewashta. My address is 3764 Landings Dr. I am sending this regarding the Bhojwani s partially completed dock. I do not believe the dock in any way detracts from the beauty or usage of Lake Minnewashta. I understand that the width of the dock exceeds the City's stipulated dimensions (71' vs. 25'). However, a dock of this scale is completely appropriate when considered against the scale of the Bhojwani s total shoreline (over 1200'). 1 have no objection to allowing the Bhojwani's to complete their dock. I ask you to support the completion of its construction. Sincerely, Don Noack 952 470-5342 11 Date: April 24, 2009 Chairperson and Members of the Chanhassen Planning commission City of Chanhassen 7700 Market Boulevard Chanhassen, MN 55317 Re: Bhofarani Dock Dear Chairperson and Members: Our names are John and Lori Weber. Our address is 3220 Dartmouth Drive, Excelsior (Chanhassen) MN, 55331. We also own the Minnewashta Lakeshore Lot directly across the street from our house, Boyer's Sterling Estates Out Lot No. 1. Our phone number is 952-470-1556 • We own a Lakeshore Lot on Lake Minnewashta and live directly across the street from our Minnewashta Lakeshore Lot. I am familiar with the Bhojwani's partially completed dock. • We do not believe the dock in any way detracts from the beauty or usage of Lake Minnewashta. • We understand that the width of the dock exceeds the City's stipulated dimensions (71' vs. 25). However, a dock of this scale is completely appropriate when considered against the scale of the Bhojwani's total shoreline (over 12001. I have no objection to allowing the Bhojwani's to complete their dock. • I ask you to support the completion of its construction. Sincerely, and Lori Weber Jeffery, Terry From: Ladd Langum [Ladd.Langum@chrobinson.com) Sent: Thursday, April 23, 2009 12:56 PM To: Gerhardt, Todd; Furlong, Tom; Aanenson, Kate; Jeffery, Terry Subject: Bhojwani Dock Date: 4/23/09 Chairperson and Members of the Chanhassen Planning commission City of Chanhassen 7700 Market Boulevard Chanhassen, MN 55317 Re: Bhojwani Dock (3301 Shore Drive) Dear Chairperson and Members: My name is Ladd Iangum. My address is 6331 Cypress Drive. My phone number is 952-401-7919. I've lived on Lake Minnewashta since 1962 and currently reside on a property directly adjacent to Bhojwani's. I am familiar with the Bhojwanis partially completed dock as Cve been able to view its progress out of my window since conception. I do not believe the dock in any way detracts from the beauty or usage of Lake Minnewashta. In fact this new structure is by far the most aesthetically appealing dock on the lake at this time. Its location is also an improvement in safety from previous docks on this property as it hugs the shoreline without extending way out into traffic areas of the lake. I understand that the width of the dock exceeds the City's stipulated dimensions (71' vs. 251. However, a dock of this scale is completely appropriate when considered against the scale of the Bhojwani's total shoreline (over 1200'). 1 have no objection to allowing the Bhojwani's to complete their dock. I ask you to support the completion of its construction. Sincerely, Ladd N. Langton Office Ph 952-683-568.3 CeffPh 612-805-5097 This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. If you are not the named addressee you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-mail from your system. Please note that any views or opinions presented in this email are solely those of the author and do not necessarily represent those of CH Robinson. CH Robinson accepts no liability for any damage caused by any virus transmitted by this email. CH Robinson Worldwide, 14701 Chadson Road, Eden Prairie, MN, USA 12 Jeffery, Terry From: mamaharry@aol.com Sent: Thursday, April 23, 2009 9:54 AM To: Furlong, Tom; Gerhardt, Todd; Aanenson, Kate; Jeffery, Terry; gary.bhojwani@allianzlife.com; jonharrisl83645@aol.com Subject: Fwd: Bhojwani Dock 3301 Shore Drive -----Original Message ----- From: mamahany@aol.com To: jonharrisl83645@aol.com Sent: Thu, 23 Apr 2009 9:43 am Subject: Bhojwani Dock 3301 Shore Drive Dear Chairperson and Members, My name is Kristi Hams and we live at 3241 Dartmouth Drive. Our lakeshore is closest in proximity to the Bhojwani dock and we have absolutely no objection to the completion of this project. At twelve times the size of the average homeowner's lakeshore, the property can certainly support the structure. Moreover, we prefer to look at the permanent dock vs. the stacks of docks and canopies you see dragged into other homeowner's yards for seven months out of the year! We support the fact that our neighbors are trying to enhance their property and lifestyle here, and don't believe it's at the expense of anyone else's enjoyment of the lake. I am one of SEVERAL Lake Minnewashta residents who grew up on this lake and returned to buy property and raise our own families here. We have a huge vested interest in not only our own property, but the lake as a whole. There are far bigger concerns (safety, growing milfoil, water quality etc..) that we should be focusing our energy and the time of city officials on. I find it very disappointing that a few neighbors find themselves so resistant to change that they had to stir things up instead of bringing their concerns to the Bhojwani's right away. Furthermore, I think it is extremely unfortunate that the hardworking folks at the dock company could ultimately be affected by the decision made about this project. My husband and I strongly encourage you to allow this project to be completed. Thank you for your consideration of our opinion. Sincerely, Kristi and Jonathan Harris (952)474-2773 Big savings on Dell XPS Laptops and Desktops! Big savings on Dell XPS Laptops and Desktops! 14 April 22, 2009 Chairperson and Members of the Chanhassen Planning commission City of Chanhassen 7700 Market Boulevard Chanhassen, MN 55317 Re: Bhojwani Dock (3301 Shore Drive) Dear Chairperson and Members: Our names our Peter and Pamela Strommen and we live in the same neighborhood and on the same bay as Gary and Kelli Bhojwani. Our property is four lots away from the Bhojwani property. We are aware that a neighbor took action with the city to halt the construction of the Bhojwani dock project. We are also aware of some of the specifics of this complaint and find them unmerited. While the dock exceeds the 25' width allowed by the city of Chanhassen, it is visually small and is very appropriate in the 1200' of shoreline that the Bhojwani's own. The permanent dock is aesthetically pleasing and is more fitting for the Bhojwani property than a temporary one. The Bhojwani's have strived to maintain the integrity of their shoreline and have consistently displayed the attitude of good stewards with their property and the Lake. We believe that a varience to the city ordinance is appropriate and request that you allow the Bhojwani's to complete the dock as it is presently configured. Sincerely, Peter and amela Strommen S eet Address and Contact Information: 3221 Dartmouth Drive Excelsior, MN 55331 Home: 952-470-6372 Work: 763-512-5201 April 22, 2009 Chairperson and Members of the Chanhassen Planning commission City of Chanhassen 7700 Market Boulevard Chanhassen, MN 55317 Re: Bhofwani Dock Dear Chairperson and Members: I am writing you today regarding the Bhojwani family dock. I am a resident of the city of Chanhassen. My address is: 2545 Arrowhead Lane Chanhassen, MN 55317 Home phone: 952.474.2323 • I am familiar with the Bhojwani's partially completed dock. • I do not believe the dock in any way detracts from the beauty or usage of Lake Minnewashta. • I understand that the width of the dock exceeds the City's stipulated dimensions (71' vs. 251. However, a dock of this scale is completely appropriate when considered against the scale of the Bhojwani's total shoreline (over 12001. I have absolutely no objection to allowing the Bhojwani's to complete their dock. • I ask you to support the completion of its construction. Sincerely, Eric J. Thomes Date: April 22, 2009 Chairperson and Members of the Chanhassen Planning commission City of Chanhassen 7700 Market Boulevard Chanhassen, MN 55317 Re: Bhojivani Dock Dear Chairperson and Members: My name is Corey J. Walther My address is 8584 Drake Court Chanhassen, MN 55317 My phone number is 952-294-0868 • I live in Chanhassen and I am familiar with the Bhojwani's partially completed dock. • I do not believe the dock in any way detracts from the beauty or usage of Lake Minnewashta. • I understand that the width of the dock exceeds the City's stipulated dimensions (71' vs. 251. However, a dock of this scale is completely appropriate when considered against the scale of the Bhojwani's total shoreline (over 12001. I have no objection to allowing the Bhojwani's to complete their dock. • I ask you to support the completion of its construction. Sincerely, Corey J. Walther Date April 22, 2009 Chairperson and Members of the Chanhassen Planning commission City of Chanhassen 7700 Market Boulevard Chanhassen, MN 55317 Re: Bhofwani Dock Dear Chairperson and Members: My name is Kevin Bachmann My address is 7140 Hazeltine Blvd., Chanhassen, MN 55331 My phone number is 612-558-1280 • I live on Lake Minnewashta and I am familiar with the Bhojwani's partially completed dock. • I do not believe the dock in any way detracts from the beauty or usage of Lake Minnewashta. • I understand that the width of the dock exceeds the City's stipulated dimensions (71' vs. 251. However, a dock of this scale is completely appropriate when considered against the scale of the Bhojwani's total shoreline (over 1200). I have no objection to allowing the BhojwarWs to complete their dock. • I ask you to support the completion of its construction. Sincerely, Date: April 20, 2009 Chairperson and Members of the Chanhassen Planning commission City of Chanhassen 7700 Market Boulevard Chanhassen, MN 55317 Re., Bhojwan{ Dock (3301 Shore Drive) Dear Chairperson and Planning Commissioners: My name is Paul Quarberg and I live at 3311 Shore Drive, Excelsior, MN 55331 My home phone number is 952-470-0315. I live on Lake Minnewashta and am familiar with the partially completed dock at the Bhojwani's residence. I do not believe the dock in any way detracts from the beauty or usage of Lake Minnewashta nor do 1 have any objection to its completion. It is my understanding that the width of the dock exceeds the City of Chanhassen's dock standards. However, when one considers the shoreline of the Bhojwani's property against that of most lakeshore properties, the width of the dock is completely appropriate. Again, I have no objection to allowing the Bhojwani's to complete their dock and I ask you to support the completion of its construction. S ice ly, ..sue Paul D. QPberg April 20, 2009 Chairperson and Members of the Chanhassen Planning commission City of Chanhassen 7700 Market Boulevard Chanhassen, MN 55317 Re: Bhojwani Dock (3301 Shore Drive) Dear Chairperson and Members: Our names are Kirk and Linda Dickey and we live at 6221 Barberry Circle in Excelsior. We have deeded access and a dock on Lake Minnewashta, which is located three lots from Gary and Kelli Bhojwani's property and is on the same bay. We are aware that action was initiated by a neighbor to halt the construction of the Bhojwani's dock. While the dock exceeds the 25' width allowed by the City of Chanhassen, it is visually small compared to the 1200+ feet of lakeshore that the Bhojwanis own. The timber construction and thoughtful design of the Bhojwani's dock make it aesthetically preferable to the norm on the lake. For example, most lakeshore owners stack their metal dock sections and boat lifts on their lakeshore for the winter. The Bhojwani's timber dock is permanent and blends into the natural lakeshore they maintain year round. In addition, the location of the dock would not obstruct boat traffic. A variance to the city ordinance would be perfectly reasonable in this case. Please allow the Bhojwanis to resume construction and complete their dock project. Dr. Kirk Dickey and Mrs. Linda Dickey Contact Information: 6221 Barberry Circle, Excelsior, MN 55331 952-474-6844 April 19, 2009 Chairperson and Members of the Chanhassen Planning Commission, City of Chanhassen Re: Bhojwani Dock (3301 Shore Drive) Dear Chairperson and Members: My name is Rachel Livingston and I live at 3331 Shore Drive on Lake Minnewashta. I have lived at this residence for six years. I grew up in this neighborhood and spent my entire childhood on this lake. I am aware of the Bhojwani dock project and I do not think that there is anything about the new dock that detracts from the overall beauty of the lake. The dock is in the exact location, and there is no interference with the recreational activity on the lake. In fact, I would say that the property at 3301 Shore Drive has always been, and continues to be, one of the most well kept and glorious pieces of property on Lake Minnewashta . The lake has changed in so many ways since the days of Leach's Resort. And, it has also remained the wonderful, quaint, family friendly lake it was when I was a child. As someone who cherishes and values "the way it used to be" I want to be very clear about the fact that I do not see any reason for time or money to be spent trying to stop the Bhojwani's from completing their dock. I hope that you support the completion of their construction and take into account the fact that when that property came on the market, many of us who live on the lake, worried that a new owner would use that lakeshore in ways that would detract from the natural beauty of that "point." In my opinion, it is their property and their right to put in this dock, and I am incredibly thankful for new owners who value the same beauty and recreational activities that make this lake a wonderful place to livel Sincerely, Rachel Livingston 3331 Shore Drive, Excelsior, MN 55331 952-470-4195 Date4/18/09 Chairperson and Members of the Chanhassen Planning commission City of Chanhassen 7700 Market Boulevard Chanhassen, MN 55317 cc: Tom Furlong- Mayor Chanhassen City Council Todd Gerhardt, City Manager Re: Bhojwani Dock (3301 Shore Drive) Dear Chairperson and Members We are Greg and Robin Niemann and we live in the same neighborhood on the same bay as Gary and Kelli Bhojwani. Our property is 3 lots away from the Bhojwani residence. We were very concerned and upset to find out recently that the Bhojwani's dock project was halted abruptly due to a couple of complaints by other lake residents. We cannot comprehend how this dock wouldn't be more than acceptable in every aspect. Even though we understand that the dock may exceed some maximum size the city allows, it actually looks small and very much acceptable in the context of the total shoreline the Bhojwani's own. In our opinion the Bhojwani's have been ideal stewards of their considerable lake frontage. They have been very sensitive in the design of this particular dock as well as how they use their frontage. They have something like 1300 feet of frontage and most of it is completely natural. How many people would keep it this way, as the Bhojwani's have? We can't imagine a better looking form of dock than natural timbers, so if the complainant's concern is about aesthetics, we think it is only fair to consider the appearance of all the other docks on the lake- many of which are complete eyesores. We would consider filing our own complaint against the owners of those docks (which would be a much more legitimate one) except that we view it as a waste of government resources and our time, in addition to being an overstepping of personal opinion and preference over an individual's private property. Honestly, with stressed budgets and ever -higher taxes we find it very disturbing that we are spending city resources on this argument. Please support the immediate completion of the Bhojwani's dock without further expense to our city and it's residents. Sincerely, Greg and Rorb/in Niemann Street Address and Contact Information- 3231 Dartmouth Drive Excelsior, MN 55331 Home: 952-401-8631 Work (Greg): 651-481-2372 Monday march 22°d City of Chanhassen Terry Jeffery re . Permanent dock structure 3301 shore drive Terry Jeffrey As a 45 year resident of lake minnewashta myself and many other lakeshore owners have worked very hard with city chanhassen carver county county parks to develop and maintain our lake in its natural environment. Carver County has developed a nature park with controlled boat access. City of Chanhassen has developed codes and regulations re structures and non permanent docks on public waters. City of Chanhassen has provided a water resource cordinator to assist owners with compliance of rules regulations. Lake Minnewashta lake shore property owners are proud of our lake . We request that all property owners abide by the same rules and that city enforce city permits and dock code compliance. Tom Merz 3201 dartmouth drive Excelsior; minn 952 474 6205 Please review and advise CITY OF CHANHASSE REED N MAR 2 4 2009 ENGINEERING DEPT. SCANNED City of chanhassen city planning commission TERRY JEFFERY april 27 th 2009 permanent dock at 3301 shore drive Dear Terry In accordance with our phone conversation April 24' 09 I have met with Gary Bhojwani and reviewed his proposed Variance Request. Due to the following a. Size of the property 4 acres b. Length of shoreline 1200 lin feet c. Preservation of existing shore line and habitat I think this is a special piece of property and would hope the City Of Chanhassen Planning Commission will resolve this issue accordingly. Tom Merz 3201 dartmouth drive Excelsior Minn 952 474 6205 CITY OF CHANHASSEN AFFIDAVIT OF MAILING NOTICE STATE OF MINNESOTA) ) ss. COUNTY OF CARVER ) I, Karen J. Engelhardt, being first duly sworn, on oath deposes that she is and was on May 7, 2009, the duly qualified and acting Deputy Clerk of the City of Chanhassen, Minnesota; that on said date she caused to be mailed a copy of the attached notice of Public Hearing for the Bhojwani Dock Variance — Planning Case 09-07 to the persons named on attached Exhibit "A", by enclosing a copy of said notice in an envelope addressed to such owner, and depositing the envelopes addressed to all such owners in the United States mail with postage fully prepaid thereon; that the names and addresses of such owners were those appearing as such by the records of the County Treasurer, Carver County, Minnesota, and by other appropriate records. Subscribed and sworn to before me this Z day of (Y1ct4 i 2009. T I Not P blic :�..�4LoIN".� ,,r6t, Dept* Clerk KIM T. MEUWISSEN aE� Notary Public -Minnesota �{ My Commission Expires Jan 31, 2010 Notice of Public Hearing Notice of Public Hearing Chanhassen Planning Commission Meeting Chanhassen Planning Commission Meeting Date & Time: Tuesday, May 19, 2009 at 7:00 p.m. This hearing may not start until later in the evening, de ending on the order of the agenda. Location: City Hall Council Chambers, 7700 Market Blvd. Proposal: Request for an after -the -fact Variance to place a dock on roe zoned Sin le Family Residential, RSF Applicant: Gary Bhojwani Property 3301 Shore Drive Location: A location map Is on the reverse side of this notice. The purpose of this public hearing is to inform you about the applicant's request and to obtain input from the neighborhood about this project. During the meeting, the Chair will lead the What Happens public hearing through the following steps: 1. Staff will give an overview of the proposed project. at the Meeting: 2. The applicant will present plans on the project. 3. Comments are received from the public. 4. Public hearing is closed and the Commission discusses the project. If you want to see the plans before the meeting, please visit the City's projects web page at: www.ci.chanhassen.mn.us/serv/plan/09-07.htmI. If you wish to talk to someone about this project, please contact Terry Jeffery by email at tiefferv@ci.chanhassen.mn.us or by phone Questions & at 952-227-1168. If you choose to submit written comments, it Comments: is helpful to have one copy to the department in advance of the meeting. Staff will provide copies to the Commission. The staff report for this item will be available online on the project web site listed above the Thursday prior to the Planning Commission meeting. City Review Procedure: • Subdivisions, Planned Unit Developments, Site Plan Reviews, Conditional and Interim Uses, Weiland Alterations, Rezonings, Comprehensive Plan Amendments and Code Amendments require a public hearing before the Planning Commission. City ordinances require all property within 500 feet of the subject site to be notified of the application in writing. Any interested party is invited to attend the meeting. • Staff prepares a report on the subject application that includes all pertinent information and a recommendation. These reports are available by request. At the Planning Commission meeting, staff will give a verbal overview of the report and a recommendation. The item will be opened for the public to speak about the proposal as a part of the hearing process. The Commission will close the public hearing and discuss the item and make a recommendation to the City Council. The City Council may reverse, affirm or modify wholly or partly the Planning Commission's recommendation Rezonings, land use and code amendments take a simple majority vote of the City Council except rezonings and land use amendments from residential to commercial/industrial. • Minnesota State Statute 519.99 requires all applications to be processed within 60 days unless the applicant waives this standard. Some applications due to their complexity may take several months to complete. Any person wishing to follow an item through the process should check with the Planning Department regarding its status and scheduling for the City Council meeting. • A neighborhood spokesperson/representative is encouraged to provide a contact for the city. Often developers are encouraged to meet with the neighborhood regarding their proposal. Staff is also available to review the project with any interested person(s). • Because the Planning Commission holds the public hearing, the City Council does not. Minutes are taken and any correspondence regarding the application will be included in the report to the City Council. If you wish to have something to be included in the report, lease contact the Planning Staff person named on the notification. Date & Time: Tuesday, May 19, 2009 at 7:00 P.M. This hearing may not start until later in the evening, depending on the order of the agenda. Location: City Hall Council Chambers, 7700 Market Blvd. Request for an after -the -fact Variance to place a dock on Proposal: ro a zoned Single Family Residential, RSF Applicant Gary Bho'wani Property 3301 Shore Drive Location: A location map Is on the reverse side of this notice. The purpose of this public hearing is to inform you about the applicant's request and to obtain input from the neighborhood about this project. During the meeting, the Chair will lead the public hearing through the following steps: What Happens W 1. Staff will give an overview of the proposed project. at the Meeting: 2. The applicant will present plans on the project. 3. Comments are received from the public. 4. Public hearing is closed and the Commission discusses the project. If you want to see the plans before the meeting, please visit the City's projects web page at: www.ci.chanhassen.mn.us/serv/plan/09-07.html. If you wish to talk to someone about this project, please contact Terry Jeffery by email at tiefferv@ci.chanhassen.mn.us or by phone Questions & at 952-227-1168. If you choose to submit written comments, it Comments: s helpful to have one copy to the department in advance of the meeting. Staff will provide copies to the Commission. The staff report for this item will be available online on the project web site listed above the Thursday prior to the Planning Commission meeting. City Review Procedure: • Subdivisions, Planned Unit Developments, site Plan Reviews, Conditional and Interim Uses, Welland Alterations, Rezonings, Comprehensive Plan Amendments and Code Amendments require a public hearing before the Planning Commission. City ordinances require all property within 500 feet of the subject site to be notified of the application in writing. Any interested party is invited to attend the meeting. • Staff prepares a report on the subject application that includes all pertinent Information and a recommendation. These reports are available by request. At the Planning Commission meeting, staff will give a verbal overview of the report and a recommendation. The item will be opened for the public to speak about the proposal as a part of the hearing process. The Commission will close the public hearing and discuss the item and make a recommendation to the City Council. The City Council may reverse, affirm or modify wholly or partly the Planning Commission's recommendation. Rezonings, land use and code amendments take a simple majority vote of the City Council except rezonings and land use amendments from residential to commerciaUndustrial. • Minnesota state Statute 519.99 requires all applications to be processed within 60 days unless the applicant waives this standard. Some applications due to their complexity may take several months to complete. Any person wishing to follow an item through the process should check with the Planning Department regarding its status and scheduling for the City Council meeting. • A neighborhood spokesperson/representative is encouraged to provide a contact for the city. Often developers are encouraged to meet with the neighborhood regarding their proposal. Staff is also available to review the project with any interested person(s). • Because the Planning Commission holds the public hearing, the City Council does not. Minutes are taken and any correspondence regarding the application will be included in the report to the City Council. If you wish to have something to be included in the report, lease contact the Planning Staff person named on the notification. BOYER BUILDING CORP BRUCE J & JEANNINE T HUBBARD CARVER COUNTY 3435 COUNTY ROAD 101 2841 WASHTA BAY RD 600 4TH ST E MINNETONKA, MN 55345-1017 EXCELSIOR, MN 55331-7821 CHASKA, MN 55318-2102 CHANDA R LYONS 2931 WASHTA BAY RD EXCELSIOR, MN 55331-7823 DONALD K & CHERLYN SUEKER 3111 DARTMOUTH DR EXCELSIOR, MN 55331-8843 GARY A & KATHLEEN A MUSGJERD 6420 TANAGERS PT EXCELSIOR, MN 55331-7833 JEROME E COVENY 2921 WASHTA BAY RD EXCELSIOR, MN 55331-7823 MARK A & YOMARIE OLSEN 2961 WASHTA BAY CT EXCELSIOR, MN 55331-7848 OLIVEWOOD HOMEOWNERS ASSN 6475 TANAGERS PT EXCELSIOR, MN 55331-7833 PETER A & MARY Z KNOLL 3131 DARTMOUTH DR EXCELSIOR, MN 55331-8843 STEPHEN C & KAREN A MARTIN 3211 DARTMOUTH DR EXCELSIOR, MN 55331-8844 THOMASJOSEPH MERZ 3201 DARTMOUTH DR EXCELSIOR, MN 55331-8844 CHRISTINE J LUDTKE 6480 TANAGERS PT EXCELSIOR, MN 55331-7833 DONALD M NICHOLSON 2901 WASHTA BAY RD EXCELSIOR, MN 55331-7823 GAYLE H & DOUGLAS DEHAAN 3071 DARTMOUTH DR EXCELSIOR, MN 55331-7850 JOHN F & MARY C SCHUMACHER 2941 WASHTA BAY RD EXCELSIOR, MN 55331-7823 MICHAEL HUGH GILMORE 2911 WASHTO BAY RD EXCELSIOR, MN 55331-7823 PAUL R & MARY K JOHNSTON 6485 TANAGERS PT EXCELSIOR, MN 55331-7833 ROBERT F & SANDRA K LAPRADE 6470 TANAGERS PT EXCELSIOR, MN 55331-7833 SUSAN I FIEDLER 3121 DARTMOUTH DR EXCELSIOR, MN 55331-8843 WILLIAM C & JUDITH L BRITT 6460 TANAGERS PT EXCELSIOR, MN 55331-7833 DAVID G & STACEY R HURRELL 3081 DARTMOUTH DR EXCELSIOR. MN 55331-7850 ESTATE OF HARRY/LOUISE AHRENS 178 SPRING LAKES PKWY INGRAM, TX 78025-4408 HERBERT J & PATRICIA L PFEFFER 2850 TANAGERS LN EXCELSIOR, MN 55331-7830 KRISTEN L ORTLIP 2831 WASHTA BAY RD EXCELSIOR, MN 55331-7821 MINNEWASHTA HOME OWNERS ASSN 2851 TANAGERS LN EXCELSIOR, MN 55331-7819 PER & E LAURIE JACOBSON 2840 TANAGERS LN EXCELSIOR, MN 55331-7830 STACEY R & MICHELLE R RICKERT 6440 TANAGERS PT EXCELSIOR, MN 55331-7833 THOMAS & JULIE FERGUSON 17645 48TH AVE N PLYMOUTH. MN 55446-2012 ALAN C & CHRISTINE L LEIDING BARBARA DIANE W INTHEISER BRIAN N & NANCY L TICHY 6331 DOGWOOD AVE 3321 SHORE DR 6240 CYPRESS DR EXCELSIOR, MN 55331-8850 EXCELSIOR, MN 55331-7815 EXCELSIOR, MN 55331-8839 DAVID M DRESSLER 6341 DOGWOOD AVE EXCELSIOR, MN 55331-8850 GARY L OLSON 6301 DOGWOOD AVE EXCELSIOR, MN 55331-8850 HENRY & DOLORES A ARNESON 13791 TONBRIDGE CT BONITA SPRINGS, FL 34135-3456 JUSTIN TOWNER 6311 DOGWOOD AVE EXCELSIOR, MN 55331-8850 L WINSTON & ELAINE G HAGEN 6300 CYPRESS DR EXCELSIOR, MN 55331-8841 LYNNEA MARYSE FORSETH 6350 DOGWOOD AVE EXCELSIOR, MN 55331-8867 MINNEWASHTA SHORES INC 6341 CYPRESS DR EXCELSIOR, MN 55331-8842 PAUL D QUARBERG & 3311 SHORE DR EXCELSIOR, MN 55331-7815 DOROTHY L SPENCER 6340 DOGWOOD AVE EXCELSIOR, MN 55331-8867 GREGORY A & ROBIN M NIEMANN 3231 DARTMOUTH DR EXCELSIOR. MN 55331-8844 JOHN L & LORI A WEBER 3220 DARTMOUTH DR EXCELSIOR, MN 55331-7828 KATHLEEN F OESTREICH PO BOX 624 EXCELSIOR, MN 55331-0624 LADD N & SIA B LANGUM 6331 CYPRESS DR EXCELSIOR, MN 55331-8842 MARK L & ELIZABETH A NELSON 3230 DARTMOUTH DR EXCELSIOR, MN 55331-7828 NANCY J VAN EPS 6251 DOGWOOD AVE EXCELSIOR, MN 55331-8849 PAUL DAVID COFFEY & 6351 DOGWOOD AVE EXCELSIOR, MN 55331-8850 GARY C & KELLI R BHOJWANI 3301 SHORE DR EXCELSIOR, MN 55331-7815 HAZEL C JOHNSON 6231 CYPRESS DR EXCELSIOR, MN 55331-8840 JONATHAN D & KRISTI K HARRIS 3241 DARTMOUTH DR EXCELSIOR, MN 55331-8844 KYLE R & TANYA M LOGSLETT 6330 DOGWOOD AVE EXCELSIOR, MN 55331-8867 LARRY B & MARY CAROL OPPEGAARD 6310 CYPRESS DR EXCELSIOR, MN 55331-8841 MICHAEL A SR & TONI L HALLEEN 3351 SHORE DR EXCELSIOR, MN 55331-7815 NATHANIEL C MALEN & 6321 DOGWOOD AVE EXCELSIOR. MN 55331-8850 PAUL L & VIRGINIA L RICHIE 3342 SHORE DR EXCELSIOR, MN 55331-7814 PETER B & PAMELA J STROMMEN RACHEL MARY LIVINGSTON ROBERT M & SUSAN S MACUNA 3221 DARTMOUTH DR 3331 SHORE DR 6340 CYPRESS DR EXCELSIOR, MN 55331-8844 EXCELSIOR, MN 55331-7815 EXCELSIOR, MN 55331-8841 SCOTT A & CHERYL L STURM 6230 CYPRESS DR EXCELSIOR, MN 55331-8839 W ILLIAM J & CATHRYN L FOSSING 6330 CYPRESS DR EXCELSIOR, MN 55331-8841 STEVEN G & JEAN K WOOD WILLIAM & JEAN M MCDANIEL 6341 CYPRESS DR 3341 SHORE DR EXCELSIOR, MN 55331-8842 EXCELSIOR, MN 55331-7815 CITY OF CHANHASSEN RECEIVED APR 17 2009 D(� D°G��1/�' 0 A O L . CHANHASSEN PLANNING DEPT LAKE MINNEWASHTA i M 6M� F.s M Y�iY, V1xM xII�4 P V yMy� I°0. �• �otiw g!�IAIB! mM .� L au n. >4.ti 4wY gg0gvc+06166- a Q Z Z 2 w Y @4 RFWYD ecc- 'IXe Iw,w.l�e un Oxop � XENSIONS CEUWfI TiON CLIENT LO TION xw � r ......, �L CXOELL d NdDSON, I*»•••�• KYLE HUNT k PARTNERS, INC. CHANHASSEN, MINNESOTA S.M.I. PROJECT NO. 62186-010 SCANNED CITY OF CHANHASSEN P O BOX 147 CHANHASSEN MN 55317 06/04/2009 4:02 PM Receipt No. 0101217 CLERK: katie PAYEE: GARY BHOJWANI 3301 SHORE DRIVE EXCELSIOR MN 55331 Planning Case #09-07 --------- ---------------------------- GIS List 99.00 Total Cash Check 3018 Change 99.00 0.00 99.00 0.00 SCANNED City of Chanhassen 7700 Market Boulevard P.O. Box 147 Chanhassen, MN 55317 MOF (952) 227-1100 mmm To: Gary Bhojwani 3301 Shore Drive Excelsior, MN 55331-7815 Invoice SALESPERSON DATE TERMS KTM 5111/09 upon receipt QUANTITY DESCRIPTION UNIT PRICE AMOUNT 33 Property Owners List within 500' of 3301 Shore Drive (33 labels) $3.00 $99.00 TOTAL DUE $99.00 NOTE: This invoice is in accordance with the Development Review Application submitted to the City by the Addressee shown above (copy attached) and must be paid prior to the public hearing scheduled for May 19, 2009. Make all checks payable to: City of Chanhassen Please write the following code on your check: Planning Case #09-07. If you have any questions concerning this invoice, call: (952)-227-1107. THANK YOU FOR YOUR BUSINESS! SCANNED Affidavit of Publication Southwest Newspapers State of Minnesota) )SS. CITY OF CHANHASSEN CARVER & HENNEPIN County of Carver ) COUNTIES NOTICE OF PUBLIC HEARING PLANNING CASE NO.09-07 NOTICE IS HEREBY GIVEN that the Chanhassen City Council Laurie A. Hartmann, being duly sworn, on oath says that she is the publisher or the authorized will hold a public hearing on agent of the publisher of the newspapers known as the Chaska Herald and the Chanhassen Vil- Monday, June 8, 2009, at 7:00 P.M. in the Council Chambers in lager and has full knowledge of the facts herein stated as follows: Chanhassen City Hall, 7700 Market Blvd. The purpose of this hearing is (A) These newspapers have complied with the requirements constituting qualification as a legal to consider a request for an after- newspaper, as provided by Minnesota Statute 331A.02, 331A.07, and other applicable laws, as the -fact variance to place a dock on amended. property locatedatmo1 ShoreDrive. Applicant: Gary Bg the to . plan showing the location of g The printed public notice that is attached to this Affidavit and identified as No - ( ) P the proposal is available for public the was published on the date or dates and in the newspaper stated in the attached Noti and said review on the City's web site at Notice is hereby incorporated as part of this Affidavit. Said notice was cut from the columns of wmw,ci.chanhassen mn us/serv/ the newspaper specified. Printed below is a copy of the lower case alphabet from A to Z, both tdanZ09-07.htm1 or at City Hall inclusive, and is hereby acknowledged as being the kind and size of type used in the composition during regular business hours. AB interested persons are invited to and publication of the Notice: attend this public hearing and express their opinions with respect to this Proposal abcdd ghijkhnnopgrs Terry Jeffery, Water Resources M �� Coordinator Email: �LN gY tjefferyCci.chanhassen.rnn.us Laurie A. Hartmann Phone: 952-227-1168 (Published in the Chanhassen Villager on Thursday, May 28, 2009; No. 4210) Subscribed and sworn before me on thisdV day of 2009 JYMME J. BARK NOTARY PUBLIC - MINNESOTA My Commission Expires 01131/2013 Notarfthc RATE INFORMATION Lowest classified rate paid by commercial users for comparable space.... $31.20 per column inch Maximum rate allowed by law for the above matter ................................ $31.20 per column inch Rate actually charged for the above matter ............................................... $12.43 per column inch SCANNED a9-6 7 CHANHASSEN PLANNING COMMISSION REGULAR MEETING MAY 19, 2009 Acting Chair Larson called the meeting to order at 7:00 p.m. MEMBERS PRESENT: Debbie Larson, Mark Undestad, Denny Laufenburger, Kathleen Thomas and Kevin Dillon MEMBERS ABSENT: Kurt Papke and Dan Keefe STAFF PRESENT: Kate Aanenson, Community Development Director; and Terry Jeffery, Water Resources Coordinator PUBLIC HEARING: LOCATED AT 3301 SHORE DRIVE. APPLICANT: GARY BHOJWANI. PLANNING CASE 09-07. Public Present: Name Address Peter Johnson Kelli & Gary Bhojwani Rachel Livingston Peter Knoll Larry Oppegard Peter Strommen Greg & Robin Niemann Linda & Kirk Dickey Tom Mere John & Kristi Hams Attorney for Applicant 3301 Shore Drive 3331 Shore Drive 3131 Dartmouth Drive 6310 Cypress Drive 3221 Dartmouth Drive 3231 Dartmouth Drive 6221 Barberry Circle 3201 Dartmouth Drive 3241 Dartmouth Drive Rick Helling 3672 Landings Drive Tom Niccum Minnetonka Portable Dredging Ken Johnson 3748 Landings Drive Terry Jeffery presented the staff report for this item. Larson: Kevin, you have any questions? Dillon: So in the letter that the property owners sent, and maybe this question is best addressed to him but I'll ask you anyway, that the language in the subject provision of the city code now being invoked by the City of Chanhassen is not clear. That lack of clarity combined with the March, 2008 guidance received by the contractor from city personnel furthered our contractor's {OMMEO Chanhassen Planning Commission - May 19, 2009 belief that the dock could be constructed without a permit from the City of Chanhassen, etc, etc. Are you familiar with the guidance that the city supposedly gave in 2008? Jeffery: It is my understanding that the contractor stated that he spoke with someone at the city who had indicated that it would not be needed. We have not been able to corroborate that but that's not to say that that didn't take place. Dillon: Okay. That's the only question I have right now. Larson: Denny. Laufenburger: Thank you Madam Chair. Mr. Jeffery, can you talk a little bit about the pilings for me please. I'm assuming the pilings were pounded down into the bed of the lake, is that correct? Jeffery: That is correct. Laufenburger: From a resource, conservation, protection, etc, what damage is done if those pilings remain? Jeffery: Really not much, to be honest. If we look under the Wetland Conservation Act, you're allowed a diminimus of up to 200 square feet within a shoreline wetland. The pilings would be under that. Laufenburger: Have you seen these pilings? Jeffery: I have seen these pilings. Laufenburger: Could you just show us where these pilings exist please. And I'm assuming this is a current photo, is that correct? Jeffery: Yeah, this was taken, I met with the applicant on site. I don't remember the exact date but within the last 3 weeks. Laufenburger: Okay. So the only thing that's been changed on this photo is the measurements and the arrows and the markings, is that correct? Jeffery: Correct. Laufenburger: Alright. So have you been able to identify where the pilings are? Jeffery: Yes, these would be the pilings. There's 1, 2, 3, 4, 5 running on this side. 5 running here. 5 again coming back. Laufenburger: So all of those posts, I'm assuming they're metal posts. u:>i"A2e 2 Chanhassen Planning Commission - May 19, 2009 Jeffery: No, those are wood posts, approximately 18 to 24 inches in diameter. I think the applicant could probably speak better to the size of those but yes, they're wooded posts. Round. Laufenburger: So those are the pilings that are driven down into the lake bed to ensure that this is a permanent structure. Jeffery: That is correct. Laufenburger: As opposed to posts that would be taken out around October or September of any year, right? Jeffery: That is correct. Laufenburger: Do you know Mr. Jeffery is it the, is there evidence that ice shifting on Lake Minnewashta would have no impact on the movement of those timbers? Jeffery: Well, prior to any stabilization and the ice coming out, if you look at these 2 here, they were already shifted. I'm not a structural engineer so I cannot speak to what the sheer strength necessary to move that would be. I think there is no guarantee that it wouldn't shift, but the structure from the supports would diminish that opportunity to shift. But again I'm not a structural engineer. Laufenburger: So clearly if the decision was made that the full 71 feet is not allowed, then some of those posts that are currently above the water, we would expect that they would be removed. Jeffery: That is correct. Once safe ice conditions were present. Laufenburger: Okay. Mr. Jeffery, do you know when the, when the phone call, or when the city was made aware of this construction, do you know were all of the pilings in place at that time? Jeffery: Yes they were. Laufenburger: Okay. So however many there are in there, it looks to be probably 40 plus, they were all in place. Jeffery: Yes. Laufenburger: Okay. Was any of the dock structure, the planking, was any of that in place at the time, do you know? Jeffery: When staff visited the site the joists were in place. Laufenburger: Okay, so that would be the support between the timbers right? Jeffery: Yes. Chanhassen Planning Commission - May 19, 2009 Laufenburger: Bear with me Madam Chair Larson: Okay. Take all the time you want. Laufenburger: In, on page 3 of the staff report, I'm quoting now. It says, I'm assuming the applicant, entered into an agreement with the city enabling him to complete the first slip, which is what you're showing there. The first. Jeffery: That's this area. Laufenburger: Yep. It was concluded that one slip is in compliance with city code. The applicant had two choices. Bring the dock into compliance, and I'm assuming that would mean get rid of everything else, or apply for a variance. The applicant elected to apply for a variance. Do you know did the construction continue at that time? On the stuff beyond that barrier. That temporary barricade, or was that already in place? Jeffery: The decking that you see beyond that barricade is just laying in place. None of it is affixed to the surface. Laufenburger: Okay. Jeffery: So some of it may have been laid out after the fact but I know that they had to bring some materials in and they were trying to get some things in before the ice went out entirely, but to the best of my knowledge no further construction on those two slips occurred. Laufenburger: Okay. Just further in the analysis, this is page 4. Section 6-24. Location restrictions. When the applicant was considering where to locate the dock it was decided that it should not be placed at the previous location. Was that a decision made by the applicant alone based on counsel with neighbors and stuff? Jeffery: Yeah, to my. Laufenburger: Do you have any idea? Jeffery: No, we were not involved. Laufenburger: You were not involved in that decision, okay. Jeffery: No. Laufenburger: Ali, that's not important. Okay, that's all I have for staff at this time. Thank you. Larson: Thank you Denny. Kathleen. Thomas: Yes, I do have a question. You talked a little bit about the DNR standards and being compliant with them except for the part where they're not in compliance with the City of 4 Chanhassen Planning Commission - May 19, 2009 Chanhassen's ordinances. I guess I want to know a little bit more about what their standards are. Do you happen to know? Jeffery: Their standards are very similar to our's. Thomas: Okay. Because I just kind of wanted to kind of get a feel as to what their, you know what the DNR's requirements are, obviously including our code ordinances but I just kind of want to see what else it includes. Jeffery: The DNR has a lot of the same language that we have. That it not be detrimental to significant wildlife habitat or to any plants. That it not obstruct navigation on the lake. That it not obstruct access and that it be of the minimum size necessary to achieve, but they don't define any what is minimum size. Thomas: Okay, so they don't denote like a size. Jeffery: Correct. They do have a separate general permit that was issued last year that talks about, if they had a platform on this. It talks about the size of that, and they couldn't have more than 8 feet. This width of this piece running out could not exceed 8 feet. That's really it for specific hard concrete dimensions that they have. Thomas: Okay. Alright. That's all I need at the moment. Undestad: Just a couple Terry. The, in 2006, can you bring that picture up again? Jeffery: Sure. Undestad: So the T dock there and then the 3 images there, are those boat slips or what? Jeffery: This is actually, I'm sorry, this is actually a cover for a boat slip. Undestad: Okay. So with that configuration and they could have what, 1, 2, 3, 4 or 5 boats in there? Jeffery: Correct, yes. Undestad: Okay. Then the language on the cross bar, dock cross bar, it seems to be kind of the gray area there. Have you looked into, I mean what, I mean I realize what Chanhassen's definition. What we've spelled out in there but is there something more to these definitions that we should know about in there? Jeffery: Not at this time. I know staff is looking at what to do with Chapter 6 but no, I think it's, in staffs opinion and City Council's opinion, cross bar is that length parallel to the shoreline. You know that the letter received from the applicant's attorney contends that that is not the case but it is our interpretation that is that portion parallel to the shoreline. 5 Chanhassen Planning Commission - May 19, 2009 Undestad: Okay. That's all I've got. Larson: Okay, I've got a couple ones. Everybody pretty much covered everything. Laufenburger: Did you have any? Thomas: I talked. Larson: That's okay. I had a question regarding, if you look at the back page where we've got the map of all the properties on here. We have got what I assume is Camp Tanadoona. We've got the Lake Minnewashta Regional Park. We've got various private beaches that are neighborhood beaches. What kind of dockage are they allowed for those properties? Jeffery: Beachlot dockages vary depending on the number of users and what was in their conditional use permit at the time the beachlot was allowed. They're under an entirely different section of the code for what's an allowed use. Larson: Okay. But I mean I'm only familiar with a couple of them but I do recall, I think it was one of the private beaches had quite a few boats. Anyway, so I was just wondering if there was. Jeffery: Yeah it again, it varies depending on what was the original agreement. Larson: So the original agreement would be grandfathered in in other words? Say if you had a property that had a larger. Jeffery: No, in fact beachlots were addressed some years back and placed under it's own section of the city code, so it's separate from single family residential. Larson: Oh, that was what I was going after. Okay. I think that's all I've got at this point. Dillon: I have one additional. Larson: Oh have you got another one? Dillon: So the previous property owner had 2 docks? Larson: That's correct. Dillon: Isn't there only supposed to be 1 dock per parcel? Jeffery: That is correct. Dillon: So did they do that? Jeffery: It was a non -conforming use. It was not compliant with the code. 6 <1 Chanhassen Planning Commission -May 19, 2009 Laufenburger: But to the best of our knowledge couldn't they, to the best of our knowledge we received no complaints from neighbors about those two docks, is that correct? Jeffery: To the best of my knowledge, no. There's, when I reviewed the building file for the property there was no evidence that it was ever a permitted use and there's no evidence of complaints on it. Whether someone took one by the phone I don't know. Larson: Well in the pictures that you showed, showed that when, at one time that one long dock that's by itself was on that point. That looks like an issue, but then, is that the same dock or do we even know if it was moved around? Jeffery: No. Madam Chair, this picture's actually in 1979. I really wanted to utilize it to talk about the safety or navigation concerns that could be associated with a long dock. Larson: Gotch ya. Okay. Alright, anybody. Laufenburger: One more. One more. Larson: Okay Denny, go ahead. Laufenburger: Mr. Jeffery, what's the actual property line on the water that this property owner has? Actual footage. Jeffery: The actual frontage on the lake, Madam Chair. Utilizing GIS software and the aerial photograph that's available, trying as best I can to follow the contours, 1,169 feet. Laufenburger: Okay. 1,169 feet. Is it possible to make a determination how many of those 1,169 feet are actually usable and not prevented from being used because of wetland? Jeffery: It would be possible to do so. I'm not prepared at this time to do that. Laufenburger: Would it be possible to just show us kind of in general where you see that would be? Like that stuff up there, would that be usable? Jeffery: This area right here would not be usable area. From the driveway over is wetland. The rest of this, this was, is, was wetland. The rest of this is fairly usable but really this entire area here is wetland. Laufenburger: Okay. So where the shade of the lake, just a little bit north of where you're drawing in a dock. Go south. Okay, now go north along the shore. Right there. Jeffery: This is, Madam Chair, Mr. Laufenburger, what happens is when they fly their, when the NRCS flies their aerial photography, they do it at different times and then they're put together as a collage. So this is just actually the difference in the lighting taken at different times. Laufenburger: Okay. So we should not interpret that as wetland, okay. Chanhassen Planning Commission - May 19, 2009 Jeffery: And the 19, well here. 2002, you can see the extent of emergent vegetation. That does show up. Not the best quality photograph but. Laufenburger: Okay. Thank you Madam Chair. Larson: Okay. Anybody else? We're good. Have we got an applicant please. Please step up to the podium and state your name and address for the record. Gary Bhojwani: Sure. Gary Bhojwani, 3301 Shore Drive, Chanhassen. I've got a couple of handouts that I'd like to give you, is that alright? Larson: Sure. Gary Bhojwani: Okay. Okay, basically what I've got is an outline of my speaking points and then a couple of exhibits that I'd like to use in my comments. Before I begin, I've never done this before so can I ask a couple of procedural questions? Larson: Sure. Gary Bhojwani: Okay. I don't know how strictly you guys follow Robert's Rules of Orders. I would hope we could have a little bit of an exchange but I want to make sure I respect whatever the rules are. Larson: Well say what you have to say and then we'll do some questions and answers. Gary Bhojwani: Okay, so there'll be an opportunity for me after the initial to interject some comments. Larson: Yes, we'll ask you if anybody has any questions on what you've said, yes. Gary Bhojwani: Okay, good. I noticed obviously that there were some more technical questions along the design of the dock. I'd like to point out that the contractor, Tom Niccum is present. I'd also like to point out that our attorney's present if you have some questions. I heard you make reference to the document that he provided so if you have any technical questions, either one of them are here, it might be appropriate. Alright. So I've tried to put my thoughts together in kind of four broad categories and in some respects the first category is the most important to me. I very much believe in Warren Buffet's view of the world in that it takes 20 years to build a reputation but 5 minutes to ruin it. It's absolutely critical to me that regardless of the outcome, to be clear I'd like my request granted but regardless of the outcome it's absolutely critical to me that no one in this community walk away with the impression that we were trying to break the law or trying to pull some kind of an end run and I'd like to present some facts that I believe will substantiate that. We moved to Minnesota in 2007. It's our first time living on a lake. I grew up in Illinois. My wife grew up in Wisconsin. We moved here from California. We were not familiar with all of the things that maybe people who've lived on lakes all their lives take for granted. We weren't familiar with that. We started talking to a contractor in 2008 about Chanhassen Planning Commission - May 19, 2009 changing our dock. When we bought the home it had 2 docks in the water and we were looking to make some upgrades and so on, and we talked to a number of folks and found a contractor with the appropriate experience, expertise and soon so we had a discussion. Relief on his assertions, and for what it's worth I think that Tom Niccum acted in complete good faith and did everything he thought was in the right way. My understanding from our contractor, and my understanding from city staff is that the dock was constructed, the dock that's in this view right now, is indeed even with the swim platform, even with the 3 slips, the whole bit, is in compliance with DNR standards. My understanding is that the initial rub occurred, if I can use that phrase, when the contractor thought that it was strictly DNR standards and relied on some conversation with city staff. I wasn't a party to those. I don't know. You have a letter from the contractor stating that. He's here present today. I'm sure he can answer any questions. We checked out his reputation. He's constructed countless permanent docks in the area. Talked to a number of people who have worked with him and as newcomers to the community that never lived on a lake, we relied in good faith on his advice and he in turn relied in good faith on a conversation he had with city staff. So we move forward. I also want to be clear, Mr. Laufenburger I heard you ask some questions about when construction stopped and so on and so forth. I would ask city staff to corroborate this. As soon as we became aware of a problem we stopped. There was no shenanigans whatsoever going on. The only thing to this date that has been completed is the one slip that city staff has acknowledged is in compliance. We have signed a legal agreement saying we won't use that as a basis to make some kind of an argument on slips 2 and 3 and the platform. So we conceded that. Any decking you see on slips 2 and 3 frankly were simply for safety concerns. They're just laying there. None of them to this date are fastened. We have 3 small children, hence my reference to the safety concerns. I think that city staff will also concede that there is, at the very least some lack of clarity between Section 6 and Section 20. There are a variety of things that are contradictory between 6 and 20. Little procedural things and more significant things. I'm not the attorney. I'm happy to have the attorney to get involved. I'd rather not do that when he's here and he can walk you through what our assessments are of that. There's some difference of opinion as to the definition of a cross bar. Again, our contractor Tom Niccum who's constructed countless permanent docks asserts that the way the cross bar's defined in the city code is different. I'm not trying to make that argument. I'm not trying to go down that path right now. I'm simply trying to present the case how we got to where we are, and it's absolutely critical to me that regardless of what the outcome is here, that there is no question about our intentions or our integrity. We were not trying an end run. We complied with all city requests as soon as we became aware of a problem. We continue to this date to comply with those requests. Now in terms of the actual substance of the issue, in my mind there are 3 broad arguments to be made, and I've tried to break them out here in steps 2 through 4. The first I refer to as aesthetics and precedent. In the packet I just handed all of you there's a picture. This is a picture taken, do I need to put it here? Does that work? Aanenson: Maybe just slide it over, there you go. Gary Bhojwani: Okay. Aanenson: She'll zoom in on the camera. Yep. M Chanhassen Planning Commission - May 19, 2009 Gary Bhojwani: Okay. This is a picture taken yesterday, standing on our dock. The dock in dispute. Directly across the lake, I don't know what the measurements are, maybe 150-200 yards, that's there. It's an apples to oranges comparison. My understanding is that multiple families use these but as you can see it has 7 slips, plus a fair bit of docking for wave runners. The point I simply wish to make by showing you all of this is if someone has an objection on multiple slips on the basis of aesthetics, that ground has been crossed in multiple places on this lake directly within sight of the dock that's currently in dispute. It's an apples and oranges comparison because this is used by multiple families. I'm not trying to say it's the same thing. I'm simply trying to make a point that certainly in terms of aesthetics, that precedent has been breached. The second issue I want to point out, and I've got a picture here and it's not going to show up but this is a picture from the brochure that was used when we purchased the home. There were 2 docks. I'm going to draw your attention up here. Contrary to the picture Mr. Jeffery showed you dated 2006, both docks had canopies. Here's one dock you can see. On the picture it looks like it just went straight out with nothing over it. That's not an accurate picture. I'm guessing maybe they took the picture when the dock was in the midst of construction but you can clearly see the canopy on the one that went straight out. There was another dock that went parallel with the shore. You can see here as the swim platform, and you can see here there was a dock and a canopy. There are at least 10 different residents present here I'm sure that can corroborate my assertion that the picture doesn't reflect what has accurately been the case, both when we bought the home and the 2 years that we've used it. You are correct Mr. Laufenburger in that no complaint was ever made, to our knowledge certainly in the 2 years that we lived there and it sounds like to the city's knowledge in the multiple years that the prior owners had those 2 docks with 2 canopies and a swim platform up and in place. Again there are ample neighbors who can corroborate that was the case for many, many years. Now, I'd ask you to think about when you're moving from a place like California to a place like Minnesota. You've grown up in Illinois and Wisconsin. Would you reasonably assume that when you buy a home from a very reputable, very decent family by the way. When you buy a home from a family that's been living on that lake for 40 years, and the day you close on the home, the docks are already in the water. It's part of the transaction. Would you assume that that was legal? We did. In hindsight maybe we shouldn't have but I've got to tell you if I had the same fact pattern again, I'd make the same assumption again. I would assume it was a legal transaction, and that's important for a significant reason. I want to show you another picture, and this is not to scale. I don't have Mr. Jeffery's access to software. I want to draw your attention over to this side. When we bought the home this was the dock configuration. There were 2 docks. One that went straight out where a boat pulled in straight this way, and one that was parallel to the shore where a boat pulled in this way, with a swim platform. That's the configuration when we bought the house in 2007. That's the configuration that was maintained in '07 and '08. Only in '09 did we attempt to move to this configuration. Now what's notable about this configuration, first of all I show you by the square footage that it covers not being any more than the home when it was when we bought it. I'll come to that in a moment. But significantly we moved it away from the point. We have a number of our neighbors that are waterskiers and we had heard over the years that when they were coming around the point, maintaining this dock that had been there for many years, that we purchased the home with and we ourselves had for 2 years while we lived there. Maintaining that dock posed a hazard. Taking that into account, we moved the dock away from the point. We moved it closer to shore. Again it's not to scale but I'm trying to illustrate the point. Now, I wanted to put the dock over here. Our contractor, and the reason I want to do that, we have a 10 Chanhassen Planning Commission - May 19, 2009 building here and it would have been perfect to have this be our boathouse and have the dock come out here. Our contractor said Gary, you're going to cause yourself a lot of problems because this area here is a wetland. It's got lily pads. Stay away from it. Stay closer to the shore. Strike the balance between getting away from the point but staying away from the lily pads. So we put it over here on the contractor's advice. The contractor was clearly trying to do the right thing and trying to comply with what he thought were the governing standards, i.e. the DNR. Now, the other point I want to make, if you take a look, I took the drawing that the city provided. The bottom is the city's drawing, which is a good approximation of what we built. It is exactly the same square footage as what we bought. All we did is take this configuration, turn it and we took the platform that used to be here and put it over here. Truth be told, on the old dock this platform was twice as wide. It was a double. We didn't increase the amount of square footage we took up from the home at the time we bought it. Now, the next issue for me I refer to on this outline as usage of the lake. Number one, I think it's critical to remember that what's at issue here is the width of the dock. Not the protrusion into the lake. There's no dispute that we've stayed within the 50 feet requirement. What is at dispute right now is that we've exceeded the 25 foot width. That's relevant from a boating standpoint. If we were arguing about exceeding the protrusion into the lake by 40 feet, that becomes much more relevant when you're talking about impeding upon navigable waters. I've demonstrated to you and the neighbors again. You could feel free to ask any of them. There's a number of them here. We've moved away from the point. We've improved the location of it from a safety standpoint. We've avoided the lily pads. Mr. Laufenburger you asked a question earlier about the amount of lakeshore that could be used or built. I forget exactly how you phrased it. I don't remember, but I think there's a relevant distinction to be made. When you think about this dock, our measurements are actually 1,260 feet but let's just use 1,200 to keep the numbers nice and round. Laufenburger: Let's use 1,169. Gary Bhojwani: Fair enough. 1,169. We've walked the property by the way. It measures 1,260 but let's use 1,169. That, the usage, even at 71 foot equates to approximately 6% of the shoreline that we own. By the city's statistics, the average shoreline is 125 foot. 6% of that we equate to 7 'h feet wide docks. Not 25 foot as is permissible. If you use the median of 110 foot, that would equate to roughly 6.6 feet. The point is, if you look at the overall scale, we're not out of whack. I think the other relevant issue from a layman's perspective. I'm not an attorney. I don't have the education or official to practice law. From a layman's perspective, think about the way we compute taxes. Think about the way we restrict hard cover requirements. There's usually some sense of proportion. Rightfully so. I'm not arguing that we should be allowed to have 10 or 20 slips. I'm not suggesting that at all. What I am suggesting is that the City allows 3 boats to be moored overnight. It's completely the same as what we bought the house in 2007. I think it's noteworthy that there were no complaints before. I've shown you other pictures where clearly there are slips much bigger than this one. And probably the final factor I have listed as 4 here, as other ... before I go onto that. I think it's because we've tried to be responsible stewards of this beautiful piece of property that we're lucky enough to own, that we have a substantial amount of neighborhood support. I have a number of my neighbors here. I'd ask them to raise their hands if they're in support of this dock being completed. We wouldn't have that kind of support if we were behaving irresponsibly. Now for me the final issue I've put under the heading of other, I can't go back to even what I had. We now know that 2 docks are, what did you call it? Not a 11 Chanhassen Planning Commission - May 19, 2009 conforming use. We've already incurred a lot of expense and a lot of effort. Both of the city proposals as were presented are less than what we had. Than what we bought in good faith. Final point, and I don't, I'm making a leap here. I don't know this to be true for sure. I know it's true for my neighbor's perspective. I assume the city also shares an interest in us not subdividing this property. We have no intention of doing it. We didn't buy it for that reason. It's not in our interest, but the point I would simply make is that everything like this that we do increases the likelihood that us or future owners wouldn't do that. In closing I believe there's a middle ground to be found here that allows us to get what we'd like, and allows the city to continue to ensure that a very unique piece of property is cared for. With that I guess I'd like to stop and open it up for Q and A. Larson: Alright Kevin, you said you had a question for him. Dillon: Yeah. So the picture you showed with the 7, whatever it is, is that owned by one, is that on one piece of property? Gary Bhojwani: You know I don't, I believe it's a neighborhood association. I don't know for sure. Aanenson: Can I address that, since I did that project. That actual subdivision, there was individual lots that could have gotten a wetland alteration permit. We've done probably 3 or 4 of these throughout the city and instead of putting individual lots, we worked with the DNR and put them all in one spot so instead of having 7 individual slips and doing a wetland impact on each of those lots, we combined them together for preservation of the lake so they're all together on one lot. Audience: That was done ... that was marsh. Aanenson: Yes. They got a wetland alteration permit in one spot as opposed to 7 lots. Yes. And the DNR supported that and they recommend that highly, yes. Laufenburger: So that picture reflects compliance. Aanenson: That's correct. And also just to be clear on the wetland, the beachlot ordinance is a little bit different. I don't want to spend too much time on that but the beachlot ordinance, and it requires significantly larger lot. Larger shoreland and a bigger acreage requirement than a standard lot. Gary Bhojwani: My understanding is there's no other private residence on Minnewashta that owns more shoreline than we do. So to the extent that the lot is larger I think... Larson: I don't know the answer to that. Aanenson: Well it requires 300 feet of shoreline and, 200 feet of shoreline and 30,000 square feet. 12 ;c Chanhassen Planning Commission -May 19, 2009 Gary Bhojwani: We would seem to exceed both of those thresholds with 4 acres and 1,169 feet. Dillon: That's the only question. Larson: Mr. Laufenburger. Laufenburger: How old are your children? Gary Bhojwani: I have twins that just turned 10 and a boy who's 13 who hit his first home run tonight. Laufenburger: Just as a point of fact, this compliance with DNR. I think we recognize compliance with DNR is important, but the DNR clearly stipulates as Mr. Jeffery's identified, that you must also comply with local so the fact that the dock complies with DNR and does not comply with local ordinances, in my interpretation, and that's our job here, that would not comply. Gary Bhojwani: I understand. The point I was simply trying to make was to explain how we got here. Laufenburger: Sure. GaryBhojwani: There's a, I want to be clear. I'm trying to walk a balance here because the attorney and the contractor will tell you that there's a different of opinion even on that issue. I'm trying not to go down that path. I'm trying to argue from a common sense perspective. Laufenburger: You're doing a fine job Mr. Bhojwani. Just regarding your last comment, you say that you're, you have no intention of doing subdivision. In fact if you wanted to do that, as long as it complied with ordinances with the city of Chanhassen you're certainly welcome to do that. How you deal with your property, that's up to you. I think I'm speaking that correctly, am I not? Aanenson: Well just a clarification. Just looking at it, I haven't looked at, that's the first I've heard of this. You have to have 90 feet of frontage on a public street so in order to get another lot in there, it appears that it would need a variance so therefore you could deny the subdivision based on not having frontage on a local street, so that would be a whole separate process so I'm just saying it's not, it appears that it wouldn't be just an easily straight forward subdivision meeting requirements of the code. On the face of it. Laufenburger: That's all the questions I have. Larson: Kathleen. Thomas: Yeah I do. My question is, you talked about like coming to like a medium between in what you want and what the city wants and I'm assuming you've looked at the recommendations on what the city is you know offering up as you know a denial or changing it to 16, the variance. 13 Chanhassen Planning Commission - May 19, 2009 Where do you feel like that would be, you would accept any of those things or are you looking for very much your full 71 foot dock and that's what you'd like so that's what you'd like to have? I'm just trying to get a feel as to what your you know, where your head's at. Gary Bhojwani: I understand. Both of the city proposals are less than what we had, and that's part of the reason I mean frankly with the amount of time and money we've spent on this variance process I would have, if I had any idea I would have never done it. But I would really hate to go through all this and end up with less than what we had, which is really the reason I'm pushing that. In terms of being able to find a middle ground, I'm not the expert in this. I've never done this before. My attorney tells me there are agreements you can strike with cities about conditional use where we make certain commitments about preserving something or doing something or not doing something in exchange for this and if we violate that then we lose this privilege. This type of thing. I think there is a middle ground to be struck. I don't know how that process works. I've never done it. Thomas: Okay, that's good. Thank you. Larson: Mark. Undestad: I have no questions right now. Larson: Okay. I think I'm good at the moment too. Very good. Thank you very much. I guess at this point then we will open up the hearing to the public. If there's anybody that would like to step up to the podium and make a comment, please do so at this time. State your name and address for the record please. Tom Metz: Well, I'm probably the only I don't know necessarily would be called the dissenter. I don't like all my notes... Larson: What's your name sir? Tom Merz: ... but my wife tells me I have a tendency to. Larson: Name and address please. Tom Metz: Ah, my name is Tom Merz. I live at 3201 Dartmouth Drive. That's the north shore. I look directly south to the park and I look directly at the Bhojwani family. Gary Bhojwani: Bhojwani. Tom Men: Bhojwani, excuse me. You know I'll try to make this short because some of the questions have been answered. I think that to my neighbors, a lot of them I'm the old guy who lives on the hill and I've got nothing better to do than attack the Bhojwani family. Others I've spent 4 years in the original, when the Carver County park was originally set up in the late 70's. I was part of that planning and developing. I was on the Planning Commission for 4 years in the middle 80's and at that time we were addressing all of the dock issues and we were addressing 14 .A Chanhassen Planning Commission - May 19, 2009 the planning issues and I think that one thing that we really accomplished during that time that we closed down all of the so called public accesses to the lake and we relocated them into Carver County park, and we have control of a nice, at this point, I feel we have a nice park and it's nicely controlled for what we call non -riparian boat access of approximately 45 boats. I think that when I listen to Minnetonka Dredging and, you know they're a 100 year old company. They've been around, to have not secured some type of a written approval or some type of a permit, I don't know where you could build this type of structure without something more than just somebody talking about it. I have problems with the City of Chanhassen in handling this project because I'm the one who made placed the original call in about mid -March and I stated that the dock was under construction and I was informed that yes, we do have an ordinance that prohibits permanent docks and we do have an ordinance that prohibits permanent canopies. Two weeks later I got a call back from the City and they said well we're sorry Mr. Merz, but no we don't have such an ordinance. We thought we did but it's not part of our rules. I said you know it's unfortunate because a lot of things have been said and a lot of conversation has happened because we had this conversation. I think finally in this variance there is no winners. I think whatever decision you people make tonight is going to come back, be with us for a lot of years. I hope that in your wisdom you'll come up with a fair decision that will protect the property owners and grant some leniency for Mr. Bhojwani. Finally I think that no matter what's decided tonight, I hope that we can put this issue behind us and walk out of here and say that you know we've always been good neighbors and good friends and whatever is decided tonight will stay here so I hope you have a good summer and enjoy your summer. Thank you. Larson: Thank you. Dillon: I have a question. Tom Merz: Yes. Dillon: So you've got two letters to the Planning Commission here. Tom Merz: Yes. Dillon: And the first one I read it, sounds like you were against granting the variance. Tom Men: Correct. Dillon: The second one, I didn't really reach a conclusion in what you're saying here... Tom Merz: At that time I actually had a meeting with Mr. Bhojwani and we discussed it and you know I thought that taking into consideration the man has 4 acres of property, 1,200 feet of Lakeshore and he maintains it well, that it is a special piece of property so I thought that my letter was stating that I hope that you people can come up with some type of a reasonable compromise and that was the intention of it. Dillon: So but would you support the variance as it stands today? 15 Chanhassen Planning Commission - May 19, 2009 Tom Merz: With the 3 docks? Dillon: Yeah. Tom Merz: No. Larson: How about for the other one? For the one dock. Tom Merz: Two docks? Larson: The second option, have you got that up there Terry? Tom Merz: That's a tough, I mean you're asking me. Well I would think that at that point if you granted. Larson: The Alternate B. Tom Merz: You know what, what is the, what are we accomplishing here? I mean so yes. would think at this point if you ask me to say specifically to me 2 docks would be acceptable. Larson: What I'm trying to accomplish here is to find out what is okay with, in your opinion as opposed to. Tom Merz: You know like I said I've been fooling around with this lake for 30-40 years and it isn't going to affect me. I probably won't be here in 10 to 15 years so I think it's the long term effect. What you're going to do when they develop the, you know the Camp Tanadoona property. What you're going to do when they develop some other people. You're setting a precedent and I think this is an unusual piece of property and it deserves some leniency. Is that 2 or 3 docks? I don't know. I'd probably support 2. 3, it seems to be very excessive but you're asking for something that, so yes. That was the way I looked at it, that's what I was thinking. Larson: Okay. That's all I was wondering. Undestad: I got one question here too. You were, you been on the lake 30 to 40 years. Tom Merz: Oh, 50 years. Undestad: Okay. The picture they showed before that had 2 docks on there at that point, nobody said anything then when those docks were built or any issues with them. Tom Merl: That's quality docks and quality stuff, just like this piece of property that he has. This is nothing but quality. Undestad: No, I mean the docks that are on the Bhojwani's. Tom Merz: What's that? 16 .14 Chanhassen Planning Commission - May 19, 2009 Undestad: The docks that show on their property back in 2006. I'm not sure when they were built. Tom Men: Oh I think they're Niccum docks and they're the straight metal docks. Undestad: Yeah, these right here. I guess my question is, you were there that long. You saw these docks go in and those were okay at that time in your mind? Tom Merz: Yes. Audience: ...permanent docks. Undestad: They're what? They're not permanent docks? Larson: Just one moment. You can come up and speak when he's finished. That's okay. Tom Merz: Yeah the difference is that they were not permanent docks and the difference is that they do not have permanent canopies that go with permanent docks and that stay there all winter. And that's my personal agenda but you know that isn't something that we have rules to live by and I expect everybody, you know when I got involved in this I thought we should all live by the same rules. But that's a personal issue. It has nothing to, you know we're here to argue about what he's allowed to do and not allowed to do. Not whether I think he should have the canopies on it. Larson: Alright. Anybody else? Than you very much sir. Would anybody else like to step up and give their opinion? Please state your name and address for the record. Ken Johnson: Ken Johnson, 3748 Landings Drive. Another one of the old guys. I'm 67, going to be 68 this year. I'm very much in favor of this variance. I personally have a dock that, well I mean our lot is 100 feet wide. I have a dock 2 feet longer than half the length of a football field because it's only 31/2 feet deep at the end. So I mean I have considerably more length and out into the lake. I hardly know of a dock that does not have a swim platform on it on the lake. I think that would be absolutely unreasonable to not have that swim platform. I look at this and you see the same type of 2 docks in there that the same amount of dock space. I think it's really unreasonable, I mean for city staff to come back afterwards and want somebody to tear something out. I think that that's really unreasonable by your part and city staff. I don't know who you know is driving this but I'm not impressed with that. This is something that I think is very workable. I also was involved with something with the DNR on raising the lake level on another lake and what they did, and this is something that you can think about. I mean this is all in. I mean the only thing that's not down is the boards that go across. That in that case, I mean what the DNR did is they granted a 5 year temporary permit on raising the lake level and just adding to a dam and with reviewing it after 5 years, and if there was no issues and no complaints, then it was made permanent. I mean it's been made permanent at this time and that and I think that's a very workable solution on your part to grant a temporary variance on the other 2 slips for 17 Chanhassen Planning Commission - May 19, 2009 a period of time and if there's no complaints during that period of time, you can make it permanent. Thank you. Dillon: Just a note. I think you kind of made a comment about the city staff. They were reacting to a complaint that one of your neighbors phoned in so. Ken Johnson: That's one of what hundreds of people on the lake. Dillon: It doesn't matter. I think for them not to respond to that and do the investigation, they wouldn't have been doing their jobs. So just in defense of them I mean. Ken Johnson: Well I mean it's doing an investigation and finding out, you know if you look at the facts and you have 2 docks. You have the same number of square feet that, you know everything is being done the way that it's supposed to be done. No, I am not impressed with city staff in this part. That is my comment and my opinion. Dillon: You're entitled to your opinion but they were just doing their jobs. Ken Johnson: That's your opinion. Larson: Okay. Anybody else? Peter Knoll: Peter Knoll, 3131 Dartmouth. My understanding that even if there's any variation that's going to happen to this property, it's going to be done in the winter. So the structure's going to exist in the summer of 2009, correct? Larson: Right. Peter Knoll: So a recommendation would probably be, from my perspective, if you had a seasonal variance you would have a time period to evaluate the permanent structure to see if there is any further complaint based upon the structure and re-evaluate it in the winter of 2010. Larson: Thank you very much. Would anyone else like to step up and give their opinion? Larry Oppegard: Larry Oppegard, 6310 Cypress Drive. The Oppegard family is starting it's 40'" summer on Lake Minnewashta and we've been involved also in some of the past good deeds that have been happening on Lake Minnewashta. The regional park. Development of the old Leech's resort and you know I speak in full favor of this. We're neighbors. We were neighbors for 40 years to the people that own this property and although I can't speak formally on behalf of the Minnewashta Shores Association, which is 21 landowners, I have done my own informal survey and have found that all those that I've talked to would be in favor as well. Thank you. Larson: Thank you very much. Anybody else? John Harris: Hi. My name is John Hams. I live at 3241 Dartmouth Drive. Can you help me out with one slide. It's the one that has a yellow property line outline and it also shows some 18 Chanhassen Planning Commission - May 19, 2009 other neighboring lots. Like a photo aerial. Yeah, that one. That's perfect. Can I go up there and just point on the map? Is that okay? Aanenson: Sure. John Harris: Okay. So I live right here. And the Niemann's are here. They live right here. And the Strommen's are here. They live right here. And who else? Rachel Oppegard is here and she lives right here. Larry and Mary live, is this it? Larry Oppegard: Next one. Other way. John Harris: Okay, right here. Sorry. And the Knoll's, I'm not sure which lot is their's but basically the, I want to say the core of the neighborhood that is in direct view of the Bhojwani property is here and we're all here in support of the variance and I just want it duly noted and just illustrate with the photo where we live and we're here in support of the variance. That's it. Thanks. Larson: Okay, thanks very much. Rick Helling: My name's Rick Helling, 3672 Landings Drive. I just want to say, we moved in the summer of 2006. Same kind of thing as the Bhojwani's. Did not live on a lake before. We had our own issues with our dock. Our house was being built when we were out of town. We weren't even here. There was a complaint from a neighbor, excuse me, very similar to this. Our dock was too far out to the water. Too long. Niccum Docks actually was our builder as well. Brent Niccum. Not Tom. But we heard about it long distance and took care of the problem. I mean we told them you know, we didn't know any better. When we met our neighbors and found out who it was who complained, we talked to them personally and said you know we're sorry. We weren't trying to do anything wrong. I think this is exactly what's happening here. In the end it all got taken care of. Our dock's in compliance now but it's a similar situation. We just, we didn't know. I've never lived on a lake before. We built a nice new house. We're trying to put a nice dock in and make it fit with the property. Fit with our new home and we unknowingly did not comply with the regulations and once we found out we fixed it. In this situation I think is very similar. The only difference is, you know they put a lot more money into it. This is a permanent structure, which to my knowledge from what I understand tonight is not, that's not against the compliance. It seems to be okay to have a permanent structure and a permanent canopy. It's just the square footage that we're talking about and the 71 feet or, compared to the 25, whatever it may be. His property is obviously the most shoreline on the lake. I think it deserves, everybody who's spoken tonight will admit it's a special property. Special family owned it before them. When he bought the property, when the Bhojwani's bought the property there was a certain amount of dockage that was there. They're not looking to make it any larger than what they had when they bought it. I think that's a point that can't be overlooked. It's not like they're trying to build a dock that was twice as big as what they had when they bought the house. The dock is the same size. It's just that it's being brought together into one dock. They thought they were doing everything the right way. Unfortunately things happen and they found out they're not and they're hoping they can get a little help from the city to make it happen smoothly so I just wanted to say my, from our situation our family, we had a 19 Chanhassen Planning Commission - May 19, 2009 similar deal and I can state for not living on a lake and not knowing exactly how things work, you know you don't want to come into a new neighborhood like Gary said and step on your neighbors toes and have everybody think oh you're better than us or you're trying to do something that nobody else has done before. I can honestly say in our case that was not you know the issue and we have great neighbors. We live on a great lake and I know Gary feels the same way. He's not trying to do anything that you know, out of the ordinary or try to get special treatment. He just wanted to have a nice dock for his family and have the same amount of dock as he had when he bought the home but just in a different configuration. That's all I have to say. Larson: Thank you. Peter Johnson: I'm Peter Johnson. I'm the attorney that Gary Bhojwani and Minnetonka Portable Dredging have consulted regarding this matter. I'd like to make just a very brief comment about what my perspective is after reviewing the legal aspects of it. I think the first thing that I think you should keep in mind is that under property law in the State of Minnesota riparian rights are given a very high level of priority in kind of the basket of rights that a property owner has. And in fact you know many of our national and state boundaries, county property, property, individual property boundaries are all set based on what riparian rights will accrue to the property owner. And with that background on Lake Minnetonka a Court of Appeals has just recently ruled that a one size fits all, cookie cutter ordinance that regulates dock users is okay so long as a city looks at the unique characteristics of properties that would suffer an undue hardship and applies a variance process and allows the property owner reasonable use of their riparian shoreland so that's the legal principle behind this variance application. There does not seem to be much dispute about the fact that this is a unique property based on it's size and the amount of lineal feet of shoreline. So then the question that's related to that is whether or not your ordinance allows this property owner reasonable use of his riparian shoreland. And in that regard I noticed in your staff report, on page 7, I think they did a nice job of outlining what the variance request would be in saying that will strict compliance with the dock regulation cause an undue hardship in the enjoyment of the shoreline site. Fair enough. But when they go to apply or suggest a finding to this panel they came up with there's no physical characteristics of the site that would preclude compliance with city code requirements. That's not the standard at all. The finding would be, is there a way under your ordinance for this homeowner to make reasonable usable use, reasonable use of 1,200 feet of shoreline. And my answer is, well if a single dock slip 24, 25 feet wide is all that any lakeshore owner will ever be able to use no matter what, and if that's a reasonable use. Or not an unreasonable restriction on use, well then your, you've, you've taken the same position that the LMCD did which was we've got an ordinance. We're going to hang in there. We're going to apply it against every property and a Court of Appeals turned him around and said no, you cannot do that. You cannot place unreasonable restrictions on a homeowner's use of his entire shoreland so. I think that ruling is pretty clear that the Bhojwani's should be granted a variance from your ordinance. So if I can ask, or answer questions, I'm happy to try and do so but that is the extent of my comments. Thank you. Larson: No questions? Anybody else? Laufenburger: Before you do, before you close the public hearing I'd request to talk to Mr. Niccum. Is that possible? 20 Chanhassen Planning Commission - May 19, 2009 Larson: You certainly may. Mr. Niccum, are you here? Tom Niccum: I'm Tom Niccum. I live at 1754 Shorewood in Mound. Larson: Okay. Laufenburger: Mr. Niccum, you've been building, you or your family have been building docks for quite a while. Is that correct? Tom Niccum: Yep. Laufenburger: How many docks have you built in the city of Chanhassen? Tom Niccum: None. Laufenburger: With exception of this one? Tom Niccum: Right. Laufenburger: This is the first one? Tom Niccum: Right, and we're separate from what he was talking about Niccum Dock. Laufenburger: Brent? Tom Niccum: That's separate from us. Laufenburger: Okay. Okay. Mr. Niccum in your letter you, or your, what you shared, you said that you had a conversation with city staff. Tom Niccum: I had a conversation with somebody, yeah. Laufenburger: Who was that person? Tom Niccum: Well it was a lady that I talked to and I talked over the rules the way I was looking at them as far as that T or L and you know to me a T or an L is at the end of a dock and it goes along kind of with what the DNR had been working on about the size of the platforms and the, on the end of the docks and so I looked at that as far as this one was going to be considerably less than 25 feet. And that's where that came from. You know my interpretation of that. Laufenburger: So what portion of the dock was going to be less than 25 feet in your view? Tom Niccum: The swim platform. 21 Chanhassen Planning Commission - May 19, 2009 Laufenburger: Mr. Niccum. What was it? The swim platform, which is now characterized as 12 feet with 8 feet width, is that right? Tom Niccum: Yeah. Laufenburger: Do you normally pull permits from other jurisdictions, Lake Minnetonka, things like that? Tom Niccum: We've built other permanent docks in other cities. Lino Lakes and areas where we did not have to. They complied with the DNR and as long as they complied with the DNR there was no city permits required. So no. On Minnetonka we deal with the LMCD. Laufenburger: Okay. That's all I had. Larson: That's all you have? Anybody else? Okay, thank you very much. Any follow-up's on that? Well with that I will close. Let's discuss this amongst us guys. It's got to be Mark. Undestad: Alright. Well, couple things. I mean great turnout and to me it looks like the Bhojwani's did their part in trying to make things better than the way it was. You know there were some comments about giving them temporary or conditional use permits or try this or try that. You know a lot of good support from the neighbors. Nobody has a problem with it. To me though I don't think that's, whether the neighbors, I mean it's important but I think the issue right now is more has to do with our specific code right and how it reads for that property and what I think is going to happen, even for future properties is some of these 100 foot lots start getting bought up into 2 or 3 lots into 1 lot. Dock sizes and things like that. You know the City, there was a comment that you know somebody needs to look at what to do with Chapter 6. I think we all know there is something with Chapter 6 that needs to get restructured in there. I think when they had the dock system in 2006, or they had 5 boats in there, they're not trying to put more boats in than what's ever been there before. You know an issue and a fact that there's an alternative for an approval of a partial variance on here. The difference between a partial variance and just granting the variance is one boat. I guess I'd look at that as you know more of an all or none type thing. Then again the hardship, the physical characteristics, it is the physical characteristic in my mind is the size of the lot itself. It's a physical characteristic. It's a big lot. Nobody else out there has the same issues out there, and again I think that goes back to when Chapter 6 was created it was probably looking more along the 100-125 foot lots and things out there that you know again I believe are going to change over time so. In my mind I think there is an issue. There's something we've got to work out in Chapter 6 and that there is based on the size of that lot and itself as a physical characteristic that I think there's a reason to allow the entire variance in there in my opinion. Larson: Thank you. Kathleen. Thomas: I kind of am stepping along the same line as Mark as well. I look at, it kind of reminds me of this whole non -conforming dock which is just like the case we had last week. We had the non -conforming house and we had the 2 homes and they were building a large home and it didn't comply with what the City wanted because they're going to build something incredibly much 22 j Chanhassen Planning Commission - May 19, 2009 more bigger than what was currently on the lot but, and so I look at, it kind of relates in the aspect that they had these docks on the property when they bought the property. They were part of the entire, they were part of the property and so we're looking now at they're redoing the docks. Making them better. Making them so we don't take them out and have them on a shoreline all year round, and they're the same size. So I look at it kind of, and I looked at the property. It's 4 acres. No one else has that on the lake and it only kind of makes sense that they are allowed to have the dock size that they do because if it was even split up between, I mean just trying to calculate it out, 4 properties. I mean I now that it can't you know or it would cost another variance. 4 properties, that could be like a potential of like a 100 foot. You know everybody having their own 25 foot dock. I see that there is something we need to look at with the code but for this property I feel like there is a hardship and it's large enough. Why the variance? It's all or nothing I think and I'd be for it. Larson: Denny. Let's see. I think that, as I read this, it's really hard to ignore the fact that the Bhojwani's have spent a lot of money already and whether they knew it or not, the spending of that money was at risk and I think their spending of that money was at risk because, I'm not going to affix blame here. The amount of money that was going to be spent for the contractor, who Mr. Bhojwani said he trusted his judgment, that he didn't do complete due diligence on securing exact approval. Exact specifics. I think that's a risk that Mr. Bhojwani should have perhaps pushed a little harder on. So I think about if this variance came to us before any money was invest in putting pilings in or putting the dock in, how might we respond and I think this is an exceptional property and I think it requires an exceptional view of what is acceptable for reasonable use of the dock. I appreciate that the previous owner may have had a non -conforming dock, but there was no complaints. Apparently there were no complaints about that dock. What Mr. Bhojwani and, Mr. and Mrs. Bhojwani are trying to do in describing their intent in making this dock no more intrusion than the total square footage of the previous dock, I think that's warranted. I look at one element of this that is just really sticking out for me and that's the proportional nature of this dock as compared to the other properties. Even if we, even if we say that the visual, usable portion of this property is even just half of the 1,169, that's still over 500 feet of usable and proportional, 25 feet on a 100 foot wide property would be 125 foot wide on this property, even by it's minimum standards. My perception of Mr. Bhojwani is that he's a good neighbor. I think we should feel good in Chanhassen about having the Bhojwani family in Chanhassen. I knew the previous owners. I know that they were stand up citizens in the community. I think the Bhojwani's, while they're here, they will be the same. So I'm in favor, along with what Commissioner Undestad said, I'm in favor of granting this a full 71 feet with a stipulation. I don't know much about ice movement of dock pillars and stuff like that. I know there's a reason why my brother in law takes his dock out of Maple Lake every year because he wants to protect the dock so, I don't know what kind of damage ice movement may do on these pillars. Certainly we have evidence, as Mr. Jeffery showed in one of the photographs, that two of those pillars that were not supported had some movement. I don't know if this is possible but I'd like to take ongoing inspection of that dock to ensure that over time it does not deteriorate with ice movement. If there is any deterioration steps are taken to ensure that it's returned to it's original point of view so that's my view. Larson: Okay. 23 Chanhassen Planning Commission - May 19, 2009 Dillon: I think I can probably answer your rhetorical question on what would we do if this was brought to us before work had started. It would be to deny it so I mean, I don't think we, you know I mean that's just the way things go usually. I mean there's a little leverage that the homeowner has right now and that even setting all that stuff aside, I mean I think the most important thing to me is the people that showed up here tonight that are going to be most, if you want to adversely affected, either aesthetically or otherwise are, don't feel it. I mean they're very much in favor of this so in addition to the ones who spoke, there's a whole slew of letters here. Although they use the same 3 bullet points in each letter, I mean you know if, but still they could have said, if they felt otherwise I'm sure they would have said so. So given the fact the scale of the property, the proportionality of the dock, the consistency with what was previously there, which I think is one of the biggest issues for me. You know kind of no good deed goes unpunished. I mean trying to do the right thing and get a new dock. I'm in favor of approving the variance and so that's what I'll say. Larson: Okay. Well, my thoughts on this are, first of all clearly the Chanhassen has city codes put in place for a reason, and the reason for that is very well thought out and it's to protect the lake. It's to protect other homeowners and the integrity of everything that is on the lake. That said, many good points have been made here this evening. I know, and I felt just even by reading the staff report and everything we got prior to this meeting, that the Bhojwani's intent was honorable. I believe that they went into this with good intentions. Wanting to do it correctly. They put faith in the dock builder and maybe that, like Denny had said, wasn't necessarily the most correct way to do that but, there are other parts of the lake where there are multiple docks. However as was, I'll echo what these guys had said earlier, is if you were to put a dock on each property and each homeowner was allowed a 25 foot wide dock, all the way around the lake, it would be a lot of docks. I think what Mr. Bhojwani is requesting is reasonable. He's been very careful as to not disturb the wetlands. The placement of the dock is good. Let's see here, what else did I want to mention? The fact that this property could equal you know 5 to 8 additional properties, like Kathleen said, you would have that many more docks if that property were able to be subdivided, which we won't bother with that but it is a unique property. The majority of the neighbors are in favor. I don't think it's setting a precedence in the city of Chanhassen on this lake just because it is a unique property. Going forward, if there were another request such as this, I think each request should be decided on a case by case basis. Let's see here. The location I think I mentioned that. Previously there was a dangerous dock out towards the point, which was bad for waterskiers. The way he's got this situated is much better. It's really not the Planning Commission's place to alter or change the city code. It is however a place where we can discuss what makes sense, and I think in this case my opinion is that it would make sense to allow the variance, the full variance as it stands. Dillon: So Chair? Larson: So like a, we've got two options here. One's to deny and then one's to go for Plan B. What if we want to approve? 013 Chanhassen Planning Commission - May 19, 2009 Aanenson: I have scripted a third motion and amended the Findings of Fact if someone wants to make a motion first, then I'd be happy to help you amend the Findings of Fact that would reflect that. Undestad: Just a quick comment here. Couple things. I guess on the, would we approve it or not or look at it based on if there was any money spent prior to the, I don't think that's accurate. I mean whether you spent money or had it in place or did anything, we'd still look at this based on does it make sense. Dillon: Oh I know. I understand his rhetorical question and I was giving a rhetorical answer. Undestad: Just didn't want it out there. And yeah I guess the other point was, you know whether or not we use language right here in the recommendation. Aanenson: Yeah, I guess what I would suggest if you wanted to, if you were choosing to recommend approval of the application, if you went with the second motion and the Planning Commission recommends that the City Council approve Planning Case 09-07 as shown on plans dated April 17, 2009. That would be. And then you would strike 1 through 4. And then I'll let you, if you want to add some other qualifications, you had some other discussion points there. And then if we could just go to the Findings of Fact. We should also have those matched. So if you go to the second Findings of Fact. I'm on Alternative B. So the findings there, the second finding, undue hardship. I'm assuming what you're leaning towards, and I'll let you clarify that, is that you're leaning towards since this is the largest property in that immediate area, 3.89 acres with a shoreline of 1,169 feet, that would be the rational nexus for granting this variance. What I'm understanding from what you're saying. If that helps. Larson: Is anybody ready to make a motion? Laufenburger: Yeah, I'll try it. Undestad: Can we have one question answered though just before we do that? Larson: Yeah. Undestad: Now the comment you made about having this inspected or looked at, is there something in place... Aanenson: Yes. With a variance you can add a reasonable condition so if that's something you wanted to have staff monitor on an annual basis, that's fine. You can just make that one of the conditions then of the motion. Dillon: But even if that is a friendly amendment or whatever it is, I mean it's up to the City Council to decide. Aanenson: That's correct. You're just recommending for their review, that's correct. 25 Chanhassen Planning Commission - May 19, 2009 Undestad: Yeah. Laufenburger: You should clarify that, that we make recommendations. Aanenson: She did, yeah. Laufenburger: Did she do that? Aanenson: I think so, yeah. Larson: Yeah. Laufenburger: Madam Chair? Larson: Yes. Laufenburger: I move that the Planning Commission recommends that the City Council approve Planning Case 09-07 as shown in plans dated April 17, 2009 for a 46 foot variance request from the allowed 25 foot cross bar for docks as outlined in the staff report, and adopt the attached Findings of Fact letter B for approval with an additional condition that the applicant allows his permanent dock to be inspected by city for review of appearance and fitness of use on an annual basis. Larson: Do we want to have an end to that? Forever? I mean do we give a. Laufenburger: Well by definition the applicant, as long as the applicant is the owner of the property because if he sells his property then he's no longer the applicant. Larson: Got it. Okay. Do I have a second? Dillon: Second. Larson: Okay. I'll take a vote. Laufenburger moved, Dillon seconded that the Planning Commission recommends that the City Council approve Planning Case 09-07 as shown in plans dated April 17, 2009 for a 46 foot variance request from the allowed 25 foot cross bar for docks as outlined in the staff report, and adopt the attached Findings of Fact as amended, with the following condition: The applicant allows his permanent dock to be inspected by the City for review of appearance and fitness of use on an annual basis. All voted in favor and the motion carried unanimously with a vote of 5 to 0. Larson: Motion passes. 26 Chanhassen Planning Commission - May 19, 2009 Aanenson: For the record Madam Chair, for those in the audience. This does require a meeting before the City Council which is scheduled for June 8's, so this will be heard at the City Council on June 8`s. Larson: June 8`s, okay. Thank you. APPROVAL OF MINUTES: Commissioner Undestad noted the verbatim and summary minutes of the Planning Commission meeting dated May 5, 2009 as presented. Acting Chair Larson adjourned the Planning Commission meeting at 8:35 p.m. Submitted by Kate Aanenson Community Development Director Prepared by Nann Opheim RI PROPOSED ALTERNATE MOTIONS: "The Planning Commission recommends that the City Council deny Planning Case 09-07 as shown in plans dated received April 17, 2009, for a 46-foot variance request from the allowed 25- foot crossbar for docks as outlined in the staff report, and adopt of the attached findings of fact for denial." p -or- "The Planning Commission recommends that the City Council approve Planning Case 09-07 as shown in plans dated received April 17, 2009, for a 16-foot variance from the allowed 25-foot crossbar for docks for the placement of two slips as outlined in the staff report subject to conditions, and adopt of the attached findings of fact and recommendation." SUMMARY OF REQUEST: The applicant is requesting an after -the -fact variance from Section 6-26(2)(c) of the Chanhassen City Code. This section of the code reads, "The crossbar of any dock shall not measure in excess of 25 feet in length." The applicant has constructed the frame for a dock that will measure 71 feet in length approximately parallel to the shoreline when completed. The total variance requested is 46 feet. LOCATION: 3301 Shore Drive — Tract I and Tract L of Registered Land Survey No. 7 APPLICANT: Gary Bhojwani 3301 Shore Drive Excelsior, MN 55331 PRESENT ZONING: Single -Family Residential (RSF) 2030 LAND USE PLAN: Residential -Low Density (1.2-4 units/acre) ACREAGE: 3.89 Acres LENGTH OF SHORELINE: 1,169 lineal feet LEVEL OF CITY DISCRETION IN DECISION -MAKING: The City's discretion in approving or denying a variance is limited to whether or not the proposed project meets the standards in the Boats and Waterways Ordinance for a variance. The City has a relatively high level of discretion with a variance because the applicant is seeking a deviation from established standards. This is a quasi-judicial decision. Bhojwani Dock Variance Planning Case 09-07 May 19, 2009 Page 2 of 9 APPLICABLE REGUATIONS This variance request is subject to Chapter 6. PROPOSAL SUMMARY The applicant is requesting an after -the -fact variance for the construction of a dock that measures 71 feet in length measured parallel to the shoreline. The city code allows a maximum length of 25 feet measured parallel to the shoreline. The site is bordered by Lake Minnewashta on the south and east and is southeast of Cypress Drive. The property is a riparian lot, with an area of 3.89 acres, 1,169 feet of shoreline and is zoned Residential Single Family (RSF). Staff is recommending denial of the applicant's request with an alternate motion for approval. Bhojwani Dock Variance Planning Case 09-07 May 19, 2009 Page 3 of 9 The applicant purchased the property in 2007. At the time, the site contained two docks with comparable overall length and surface area to the dock proposed by the applicant. Staff located aerial photographs that date back to 1991 that showed two seasonal docks; however, staff was unable to locate any form of documentation permitting the two structures. City Code allows one dock per lakeshore property. This is an existing non -conforming use. Construction on the new dock began in good faith. The applicant's contractor reviewed city code and concluded that construction of the dock did not require a city permit. The goal was to combine the two seasonal docks with one permanent and comparable in size dock. The new location had improved sight lines and eliminated the non -conformity of having two docks; however, the new dock has dimensions that exceed the limits permitted by ordinance. As construction began, staff received a complaint regarding a dock that was being constructed on Lake Minnewashta. The caller was concerned with the size of the structure. Staff inspected the site and found a dock with three slips. Staff determined that the dock exceeded the 25-foot crossbar length limitation permitted by ordinance. Staff issued a Stop Work Order until a solution could be reached. The applicant requested percussion to complete the section of the dock that met ordinance requirements. He entered into an agreement with the city enabling him to complete the first slip. It was concluded that one slip is in compliance with City Code. The applicant had two choices; bring the dock into compliance or apply for a variance. The applicant elected to apply for a variance. Bhojwani Dock Variance Planning Case 09-07 May 19, 2009 Page 4 of 9 Staff has received 22 emails and/or letters regarding the dock. They have been included for your review. CITY CODE The pertinent sections of the City Code dealing with variances read as follows: Sec.6-23. Variances. (a) The city council may grant a variance from the dock requirements of this article where it is shown that by reason of topography, soil conditions or other physical characteristics of the lakeshore site, strict compliance with the dock requirements could cause an exceptional or undue hardship to the enjoyment of the use of the lakeshore site, provided, that a variance may be granted only if the variance does not adversely affect purpose and intent of this chapter. Sec. 20-58 (a)Undue hardship is addressed in Chapter 20 Section 58 (a). That the literal enforcement of this chapter would cause undue hardship. For purposes of the definition of undue hardship, 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 in developed neighborhoods pre-existing standards exist. Variances that blend with these pre-existing standards without departing downward from them meet these criteria. ANALYSIS Docks are regulated under Chapter 6 of the City Code. The following constitute staffs findings of the applicant's request. Chapter 6, Article II Structures Section 6-24. Location Restrictions Request No dock, mooring or other structure shall be so located as to: (1) Obstruct the navigation of any lake; When the applicant was considering where to locate the dock, it was decided that it should not be placed at the previous location as other neighbors had expressed concern that the dock was difficult to see due to poor sight lines created by the shape of the shoreline and existing vegetation. The current placement should not pose any obstruction to normal boat traffic on the lake. Bhojwani Dock Variance Planning Case 09-07 May 19, 2009 Page 5 of 9 Section 6-24. Location Restrictions Request (2) Obstruct reasonable use or access to any other The applicant has 1,169 feet of shoreline. dock, mooring or other structure authorized The current dock location is at least 540 under this chapter, feet from any adjoining property. (3) Present a potential safety hazard; or The applicant selected this placement with the input of their neighbors. The neighbor indicated that the placement of the previous owner's dock was difficult to see and posed a potential hazard when water skiing. (4) Be detrimental to significant fish and wildlife The applicant considered the location of habitat or protected vegetation. the wetland north of the current location when selecting the dock placement. This current placement was selected to avoid impacts to the wetland. Section 6-26 regulates dimensions, number of docks, etc. The following is staffs findings: Section 6-26. Docks. Request No more than one dock shall be When the applicant purchased the property in April of 2007 permitted on any lakeshore site. there were two docks located on the property (see attached historical aerial photographs). The applicant is removing this non -conforming use by consolidating these two docks into one dock. This action eliminated the nonconformity of having two docks, however, has created a structure that exceeds maximum crossbar length requirements. No dock shall exceed six feet in The dock extends fifty (50) feet from the shore line. The width and no dock shall exceed applicant stated that he chose this location for several reasons, the greater of the following one of which being that a shorter dock could be used to reach lengths: deeper water. (1) 50 feet; or (2) The minimum straight-line distance necessary to reach a water depth of four feet. Bhojwani Dock Variance Planning Case 09-07 May 19, 2009 Page 6 of 9 Section 6-26. Docks. Request The width (but not the length) The crossbar extends 54 feet north from the main dock and a of the cross -bar of any "T" or swimming platform extends 12 feet south of the main dock. "L" shaped dock shall be Combined with the dock width of five (5) feet, the total length included in the computation of of the crossbar is 71 feet. This has necessitated the variance length described in the request. preceding sentence. The cross- 50• —� bar of any such dock shall not measure in excess of 25 feet in 13• 5'�-32'� length. No dock shall encroach upon any dock setback zone; e provided, however, that the t owners of any two abutting Slip A 13' lakeshore sites may erect one common dock within the dock 5 setback zone appurtenant to the abutting lakeshore sites, if the t o dock is the only dock on the two A slip a 13, lakeshore sites and if the dock }I otherwise conforms with the provisions of this chapter. Slip C 13' 1 v 5' t 3 12 1 � 8'+ The applicant has 1,169 feet of shoreline and the dock is located approximately central on the property. There is no encroachment into the dock setback zone. No person shall store fuel upon The applicant has no intention of storing fuel on the dock. any dock. No oscillating, rotating, flashing The applicant has no intention of using a light with any of the or moving sign or light may be prohibited characteristics. used on any dock. No advertising signs shall be The applicant has no intention of displaying any displayed from any dock. advertisement signs on the dock. Access across wetlands shall be The applicant selected the dock location for a variety of subject to the standards set forth reasons. In addition the length needed to reach a suitable in section 20-405. Docks shall water depth, the applicant elected this location to avoid be elevated a minimum of six to impacts to the preserve wetland located north of the current eight inches above the ordinary dock location. The dock will meet the minimum height high water elevation. requirements- Bhojwani Dock Variance Planning Case 09-07 May 19, 2009 Page 7 of 9 MISCELLANEOUS As much as 18 feet of the pilings are buried below the lake bottom. This requires special equipment for installation or removal. This equipment is a wheeled vehicle which needs to be driven on the frozen surface of the lake. Due to this fact, the pilings will not be removed until there are safe ice conditions on the lake. This fact should be considered when rendering a decision on this issue. Corrections will not occur prior to such a time when travel on the lake is safe. VARIANCE Sec.6-23. (a) Variances. By reason of topography, soil conditions or other physical characteristics of the lakeshore site, strict compliance with the dock requirements could cause an exceptional or undue hardship to the enjoyment of the use of the lakeshore site; provided, that a variance may be granted only if the variance does not adversely affect purpose and intent of this chapter. Finding: There are no physical characteristics of the site that would preclude compliance with the City Code requirements. Sec. 20-58 (a) Undue Hardship That the literal enforcement of this chapter would cause undue hardship. For purposes of the definition of undue hardship, 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 in developed neighborhoods pre-existing standards exist. Variances that blend with these pre-existing standards without departing downward from them meet these criteria. Finding: There are nine single-family residential properties with lake frontage within 500 feet of the applicant's residence. These properties have lake frontage ranging from 85 to 140 feet. All of these properties maintain temporary docks and can, by code, moor up to three boats overnight. None of these properties have a crossbar on any dock in excess of 25 feet as allowed by code. Given City Code indicates that three boats may be moored overnight, staff concludes that this, coupled with access to the lake, are reasonable uses. The applicant could store three boats without building three individual slips thereby reducing, if not eliminating, the variance requested. The applicant has indicated that the two lifts he has purchased are designed such that they need to be mounted on the pilings rather than resting on the lake bottom. Even allowing for the two lifts, the applicant could eliminate the third slip and the swimming platform and still have reasonable use of the lake — even allowing overnight dockage of all three watercraft he owns. The third watercraft would not be enclosed within a slip but rather Bhojwani Dock Variance Planning Case 09-07 May 19, 2009 Page 8 of 9 would have to be docked alongside the main dock. This configuration would require a crossbar 41 feet in length and a variance of 16 feet from the allowed 25-foot crossbar. RECOMMENDATION "The Planning Commission recommends that the City Council deny Planning Case 09-07 as shown in plans dated received April 17, 2009, for a 46-foot variance request from the allowed 25-foot crossbar for docks as outlined in the staff report, and adopt the attached findings of facts for denial." Should the Planning Commission recommend to the City Council approval of this request, staff recommends the following motion: "The Planning Commission recommends that the City Council approve Planning Case 09-07 for a 16-foot variance to the length of a crossbar as shown in plans dated received April 17, 2009, and adopt the attached findings of fact for approval with the following conditions: 1. The applicant shall remove the most northerly slip resulting in two slips. 2. The applicant shall remove the platform. 3. The final configuration shall comply with the configuration shown below. 4. The overall length of the crossbar shall not exceed 41 feet. Bhojwani Dock Variance Planning Case 09-07 May 19, 2009 Page 9 of 9 1. Findings of Fact Alternate A (Denial). 2. Findings of Fact Alternate B (Approval). 3. Application. 4. Emails and letters from property owners. 5. Public Hearing Notice and Affidavit of Mailing. 6. Survey dated received April 17, 2009. g:\plan\2009 planning cases\09-07 bhojwani dock "rime6staff report fiml.doc Affidavit of Publication Southwest Newspapers CITY OF CHANHASSEN CAxvColsrEPrr1 State of Minnesota) NOTICE OF PUBLIC HEARIN(; )SS. PLANNING CASE NO.09-07 NOTICE IS HEREBY GIVEN County of Carver ) that the Chanhassen Planning Commission will hold a public hearing on Tuesday, May 19, 2009, at T00p.m. in the CouncilChambers in Chanhassen City Hall, 7700 Laurie A. Hartmann, being duly sworn, on oath says that she is the publisher or the authorized Market Blvd. The purpose of this agent of the publisher of the newspapers (mown as the Chaska Herald and the Chanhassen Vd- hearing is to consider a request for an after -the -fact Variance to place a lager and has full knowledge of the facts herein stated as follows: dock on property located at aa01 Shore Drive. Applicant: Gary ry A These news have complied with the requirements constituting qualification as a legal ( ) �> p g q Bhojwani. newspaper, as provided by Minnesota Statute 331A.02, 331A.07, and other applicable laws,as A plan showing the location of amended. the proposal is available for public review on the City's web site at (B) The printed public notice that is attached to this Affidavit and identified as No. y3V.3 www.ci ebanhasEpli,nin.us/serv/ was published on the date or dates and in the newspaper stated in the attached Notice and said plan/09-07.html or at City Hall during regular business hours. AR Notice is hereby incorporated as part of this Affidavit. Said notice was cut from the columns of interested persons are invited to the news specified. Printed below is a of the lower case alphabet from A to Z, both spcer cAPY Ph attend this public hearing and inclusive, and is hereby acknowledged as being the kind and size of type used in the composition express their opinions with respect and publication of the Notice: to this proposal. Terry Jeffery, Water Resources Coordinator Email: abcdefgh4lklmnopgrstu - tieffervC&.ci h h mn Phone: 952-227-1168 Y (Published in the Chanhassen Laurie A. Hartmann Villager on Thursday, May 7, 2009 No. 4203) Subscribed and sworn before me on this day of ��c/ , 2009 JYMME J. BARK NOTARY PUBLIC - MINNESOTA i A No lic My Commission Expires 01/31/2013 RATE INFORMATION Lowest classified rate paid by commercial users for comparable space.... S31.20 per column inch Maximum rate allowed by law for the above matter ................................. $31.20 per column inch Rate actually charged for the above matter ............................................... S12.43 percohmm inch SCANNED CITY OF CHANHASSEN CARVER & HENNEPIN COUNTIES NOTICE OF PUBLIC HEARING PLANNING CASE NO.09-07 NOTICE IS HEREBY GIVEN that the Chanhassen Planning Commission will hold a public hearing on Tuesday, May 19, 2009, at 7:00 p.m. in the Council Chambers in Chanhassen City Hall, 7700 Market Blvd. The purpose of this hearing is to consider a request for an after -the - fact Variance to place a dock on property located at 3301 Shore Drive. Applicant: Gary Bhojwani. A plan showing the location of the proposal is available for public review on the City's web site at www.ci.chanhassen.mn.us/sere/plan/09-07.html or at City Hall during regular business hours. All interested persons are invited to attend this public hearing and express their opinions with respect to this proposal. Terry Jeffery, Water Resources Coordinator Email: tiefferv@ci.chanhassen.mn.us Phone: 952-227-1168 (Publish in the Chanhassen Villager on May 7, 2009) SCANNED Date: April 23, 2009 Chairperson and Members of the Chanhassen Planning commission City of Chanhassen 7700 Market Boulevard Chanhassen, MN 55317 Re: Bhojwani Dock Dear Chairperson and Members: My name is Angela Weaver My address is 6220 Barberry Circle Excelsior, MN 55331 My phone number is 952 401-8918 CITY OF CHANHASSEN RECEIVED JUN 0 2 2009 CHANHASSEN PLANNING DEFT • I live on Lake Minnewashta and I am familiar with the Bhojwani's partially completed dock. • I do not believe the dock in any way detracts from the beauty or usage of Lake Minnewashta. • I understand that the width of the dock exceeds the City's stipulated dimensions (71'vs. 25). However, a dock of this scale is completely appropriate when considered against the scale of the Bhojwani's total shoreline (over 12001. I have no objection to allowing the Bhojwani's to complete their dock. • I ask you to support the completion of its construction. Sincerely, ECANNE u_ u • IM ►IX Jul TO: Terry Jeffery, Water Resources Coordinator FROM: Jerntt Mohn, Building Official DATE: April 21, 2009 SUBJ: Review of variance request place a dock property located at 3301 Shore Drive. Applicant Gary Bhojwani Planning Case: 09-07 I have reviewed the above request for a variance and have no comment. GAPLAN\2009 Planning Cases109-07 Bhojwani Dock Valiaoce\buildingofficialcom ts.doc 8CANNN) City of Chanhassen 7700 Market Boulevard P.O. Box 147 Chanhassen, MN 55317 (952)227-1100 Date: April 20, 2009 To: Development Plan Referral Agencies From: Planning Department Review Response Deadline: iMay 8, 2009 By: Terry Jeffery, Water Resources Coordinator Subject: Request for an after -the -fact Variance to place a dock on property zoned Single Family Residential (RSF) located at 3301 Shore Drive. Applicant: Gary Bhojwani Planning Case: 09-07 PID: 25-6700090 The above described application for approval of a land development proposal was filed with the Chanhassen Planning Department on April 17, 2009. The 60day review period ends June 16, 2009. In order for us to provide a complete analysis of issues for Planning Commission and City Council review, we would appreciate your comments and recommendations concerning the impact of this proposal on traffic circulation, existing and proposed future utility services, storm water drainage, and the need for acquiring public lands or easements for park sites, street extensions or improvements, and utilities. Where specific needs or problems exist, we would like to have a written report to this effect from the agency concerned so that we can make a recommendation to the Planning Commission and City Council. This application is scheduled for consideration by the Chanhassen Planning Commission on May 19, 2009 at 7:00 p.rYL in the Council Chambers at Chanhassen City Hall. We would appreciate receiving your comments by no later than May 8, 2009. You may also appear at the Planning Commission meeting if you so desire. Your cooperation and assistance is greatly appreciated. 1. City Departments: a. City Engineer b. City Attorney c. City Park Director d. Fire Marshal e. Building Official f. Water Resources Coordinator g. Forester h. Community Development Director 2. Carver Soil & Water Conservation District 3. MN Dept. of Transportation 4. MN Dept. of Natural Resources 5. U.S. Army Corps of Engineers 6. U.S. Fish & Wildlife 7. Carver County a. Engineer b. Environmental Services 8. Watershed District Engineer a. Riley -Purgatory -Bluff Creek b. Lower Minnesota River c. Minnehaha Creek 9. Telephone Company (Qwest or Spnnt/United) 10. Electric Company (Xcel Energy or MN Valley) 11. Mediacom 12. CenterPoint Energy Minnegasco SCANNED Location Map (Subject Property Highlighted in Yellow) Bhojwani Dock Variance Request 3301 Shore Drive Planning Case 2009-07 SCAT V[D PID# 256700090 l � 1�Y CopytiphtA2009,-Diver County, Minnesota Legend parcel information Cerr FA& Property Address: Taxpayer Information: 3301 SHORE DR GARY C & KELLI R BHOJWANI USNOW EXCELSIOR, MN 3301 SHORE DR ./ salves I EXCELSIOR, MN 55331 MrAm [Parcel Properties ra.yitrr .` CIS Acres: 3.89537741 Year Built 1999 [�� Homestead: Y Above Grade Finished SQ IT: 7054 �✓ Callum School District: 0276 Fs Irma arcel Location lahta Section: OS Plst Information: I'm Ml Township: 116 IRLS 7 fdryM Range: 023 ITRACTS I & L [Payable Year 2010 t Sale Information Sale Date: 04/190007 Est. Market Value Land: $2224300 Sale Price: $4337500 Eat Market Value Building: $1337400 QualiBed/Unqualified: QUALIFIED SALE Map Created: 4-20.2009 Est Market Value Total: S356I700 CARVER COUNTY CIS DISCLAIMER: This map was created using Carver Countys Geographic Information Systems (GIS), it is a compilation of information and data from various City, County, State, and Federal offices. This map is not a surveyed or legally recorded map and is intended to be used as a reference. Carver County is not responsible for any inaccuracies contained herein. Ic SCANNED CITY OF CHANHASSEN P 0 BOX 147 CHANHASSEN MN 55317 04/21/2009 11:14 AM Receipt No. 0098837 CLERK: katie PAYEE: GARY BHOJWANI 3301 SHORE DRIVE EXCELSIOR MN 55331 Planning Case 09-07 ------------------------------------------------------- Use & Variance 200.00 Sign Rent 200.00 Recording Fees 50.00 Total Cash Check 3009 Change �116111W$h1 0.00 450.00 0.00 $CANNED 3301 ScpNNED 3301 Shore Drive • Excelsior, MN 55331-7815 • 952.474.4995 gbhojwani@msn.com April 17, 2009 Chairperson and Members of the Chanhassen Planning Commission City of Chanhassen c/o Mr. Terry Jeffery 7700 Market Boulevard Chanhassen, MN 55317 Re: Bhojwani Dock Variance Request Dear Chairperson and Members: VIA COURIER CITY OF CHANHASSEN RECEIVED APR 17 2009 CHANHASSEN PLANNING DEPT I attach herewith the following documents in pursuit of our variance request: 1) A $450 check payable to the City a) $200 for the variance; b) $50 for the recording fees; c) $200 (refundable) for the notification signs; d) I understand that I will also owe $3 per recipient for the required mailing notification. Once the final list of recipients is determined, please let me know how much we owe; and e) Please let me know if there are other fees I may have missed. 2) The completed development review application (1 mwel. Some of the sections did not seem relevant, but please let me know if I missed something. 3) A plot plan (1 page) showing our property lines, etc. (I received same from the City.) I have hand - drawn the approximate location of the dock on the plot plan; that notation is obviously not to scale. 4) A drawing showing the total dimensions of the dock itself 11 pay -el. 5) A written summary of the responses to questions 5 and 6a. — 6f. 13 pages) from the page entitled City of Chanhassen — Variances". 6) A letter from the contractor 13 pagesl containing various details and a schematic of the dock. 7) A letter and a legal citation from our attorney 112 pages). The instructions requested 16 copies and some type of electronic format. I understand that those requirements are relevant for more substantive requests (ie, subdivisions). If I have misunderstood and you need me to also satisfy those requirements, please do let me know. The best way to reach me is on my cell phone (612.345.0930). 1 may also be reached during business hours at: 763.765.6707, via facsimile at 763.582.6102, or via e-mail at Gary.Bhojwani@allianzlife.com. Thank you for your time. /GCB Attachments DOCI{ Cover Letter_0417.doc SCANNED All c�Wkwoys S' 3 3Z' Slips 6atiy 0h03wani "VfAtr%erf�r poCh m K-s'-A GTY OF CHANHASSEN RECEIVED APR 17 2009 CHANHASSEN PLANNING DEPT SCANNED 5) WRITTEN DESCRIPTION OF VARANCE REQUEST: This is a variance request to allow completion of construction for a dock on the shoreline of 3301 Shore Drive. (Construction of the proposed dock has already commenced. All support pilings were installed during the winter.) Although it complies with all DNR standards and the City's standard for length, the dock deviates from the maximum width standards of the City of Chanhassen (71 feet vs. 25 feet). 6) WRITTEN JUSTIFICATIONS BASED ON STIPULATED CRITERIA: a) The literal enforcement of this chapter would cause undue hardship. i) TRUE. ii) When considered with the scale of the property, a dock of this size is proportional in scale, a long distance from any neighbor, and allows us to enjoy reasonable use of the property's extensive lakeshore. iii) We purchased this home in 2007. The prior owner kept two unconnected seasonal docks on the property which are of a size comparable to the current permanent dock and which were configured in a manner that included a swim platform/seating area. Those seasonal docks were included in the 2007 purchase of the home and were actually "in the water" before we physically moved into the home in May, 2007. We understand that the prior homeowner maintained this dual dock configuration for many years prior to our possession of the property and we have continued to use the docks in the two years during which we have owned the property. We never received a complaint from any neighbor and had no reason to believe we were in violation of any ordinance. iv) The new permanent dock has 3 connected boat slips. We already own 3 boats. (If we are required to reduce or remove the permanent dock, what should be done with the boats that are already owned?) v) Removal or reduction of the current dock plans would result in significant and unrecoverable expense ($75,000+) for the homeowner and the contractor. b) There are unique conditions on our property that are not present on other properties within the same zoning classification. i) TRUE. u) The subject property is extremely unique. We believe that there are no other privately owned properties of similar scale and shape in the City of Chanhassen. This property consists of: (1) Over 4 acres; and (2) A peninsula with over 1260 feet of shoreline. (Presently we maintain approximately 90% of the shoreline in a natural state, unburdened by docks, piers, or other improvements. In effect, 90% of our shoreline is already dedicated to preserving local wildlife, wetlands, cat -tails, etc.) c) The purpose of the variance is not based upon a desire to increase the value or income potential of the parcel of land. i) TRUE. ii) The variance is based upon a desire to allow us to maintain past levels of use along the shoreline and to have a centralized location for our watercraft (versus 2 unconnected docks). We have been good neighbors in the past and intend to continue being good neighbors. We seek only to enjoy our property in a way that SCANNED is commensurate to the scale of the land and length and character of the shoreline we own. d) Is the alleged difficulty or hardship self created? i) The hardship stems primarily from the unique character of the property. However, the hardship has been made more severe and more immediate as a result of a legitimate and unintentional misunderstanding. (1) The contractor sought and received guidance from the City of Chanhassen in March, 2008 that he may proceed with construction of such a dock. Based on this advice to the contractor, we paid a deposit in 2008 of 1/3a the total cost ($25,000). (2) The commencement of actual construction of the dock began in January, 2009, at which time we paid the next installment to the contractor. (3) The Minnetonka -based contractor (Tom Niccum of Minnetonka Portable Dredging) is well known in this field and has long experience constructing other such docks in the area. This design and construction is in compliance with the regulations of the DNR, which the contractor thought was the sole governing entity over the construction specifications. (4) We relied in good faith on the reputation, expertise and experience of the contractor in moving forward with this significant expense. ii) The language in the subject provisions of the city code now being invoked by the City of Chanhassen is not clear. That lack of clarity, combined with the March, 2008 guidance received by the contractor from City personnel, furthered our contractor's belief that the dock could be constructed without a permit from the City of Chanhassen so long as it was in compliance with DNR standards (which it is). Please see also the attached letters from our attorney and contractor. 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. i) TRUE. ii) The proposed dock is located more than 600 feet from our nearest neighbor. iii) Construction of a permanent dock allowing for the docking of 3 boats is commensurate with the scale of both the home and considerable shoreline of the property (over 4 acres and 1260 feet). iv) Boating will not be impeded by this dock. The proposed dock does not extend beyond the permissible 50 feet into the lake. (The width of the dock, not the length, is what is at dispute.) Furthermore, the proposed dock has been located on a portion of the peninsula and at a proximity to the shoreline that would not otherwise allow for regular boating. v) Fishing and wildlife will not be impeded by this dock. We have already dedicated approximately 90% (over 1,000 feet) of our shoreline to the preservation of local wildlife, wetlands, cat -tails, etc. 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. i) TRUE. We submit this Application without prejudice to the rights we have under Minnesota law as owners of the property. Mr. Tom Niccum (our contractor) has prepared a brief letter in support of this Application. We have asked our Attorney, Mr. Peter W. Johnson, to review the background facts, the wording of your ordinances, and the legal effect of the "Stop Work Order" that was issued. He has prepared an opinion letter which is also submitted herewith. We ask that the letters from Tom Niccum and Peter Johnson be considered by you in your deliberations and that they are made a part of the record in this proceeding. SLANNEO Rpr 17 09 09:34a Minnetonka Portable Dredging, Inc. 50 West Lake Street Excelsior, MN 55331 (952)474-9454 April 16, 2009 Chairperson and Members of the Chanhassen Planning Commission City of Chanhassen 7700 Market Boulevard P. 0. Box 147 Chanhassen, MN 55317 RePermanent dock being constructed by Gary and Kelli Bhojwani at 3301 Shore Drive in Chanhassen Dear Chairperson and Members I am President of Minnetonka Portable Dredging. Our company was hired to construct permanent dock for the Bhojwanis on their property at 3301 Shore Drive in Chanhassen. Attached is a schematic drawing of the dock configuration I prepared showing the proposed configuration for the dock. The dock is designed to be 50 ft in length and is five feet wide over most of its length. The swim platform is 8 feet wide and 12 feet long. The dock has three slips each having an interior measurement of 13 ft x 32 ft. The dock layout would not generally be considered or referred to as an "L or T shaped dock'. I spoke to Chanhassen City staff about the project in the spring of 2008. 1 intended to buy materials for the project even before the design had been finalized. I described the type of dock to a planning staff person in very general terms. After that conversation, I was left with the impression that Chanhassen ordinances would allow construction of the planned dock. Near the end of 2008, a specific plan for the dock was agreed to with the Bhojwanis. I then reviewed the Chanhassen ordinances before starting construction of the dock. Based on my review, I concluded that construction of the dock did not require a city permit. We did not intend to violate Chanhassen's ordinances. When construction was commenced, I believed that the only applicable restriction on dock width were the setbacks from the property boundaries abutting other property owners and length was restricted to 50 feet. Minnetonka Portable Dredging began constructing the dock from the lake ice in January of 2009. Neither Minnetonka Portable Dredging nor the Bhojwanis received any objection from the City until all machine driven piles had been installed for the complete dock layout. In mid March city staff contacted me and requested that I submit a permit application to the City. After we complied with that request, the city staff visited the site and issued the Stop Work Order. I met with Sharmeen AI Jaff and Terry Jeffrey on or about March 23, 2009. 1 explained that without the structural strength provided by bracing and decking, the unsupported piles would Rpr 17 09 09:34a p.2 Chairperson and Members of the Chanhassen Planning Commission April 16, 2009 Page 2 likely be damaged by wind-blown ice. I requested permission to complete the bracing and decking. That request was denied. I then requested permission to put bracing and decking on the portion of the dock that city staff acknowledged did not require a city permit. Staff confirmed that the request seemed reasonable but indicated they could not withdraw any aspect of the Stop Work Order without first confirming their authority to do so. The city staff agreed to promptly respond to my request. It was not until April 6, that I finally received a response from the City. Unfortunately, while I honored the City's Stop Work Order and waited for permission to continue construction, shifting ice Caused significant damage to several of the unsupported piles. The language in the city ordinance (6-26(c)) restricts cross -bars to 25 feet of width only on "T and L shaped docks" and then provides that the dock may not encroach into the dock setback zone defined as a buffer zone between abutting properties along the shoreline. Other dock regulators in the area (such as the DNR or the LMCD) regulate the width of docks solely or primarily in reference to "side -yard setbacks" (i.e. setbacks from abutting lakeshore properties). As the ordinance is written, both experienced lakeshore property owners and professionals in the trade would likely interpret the ordinance just as I did. Most such readers of your ordinance would not conclude that the language restricting the length of the cross -bar on a "T or L shaped dock" was intended to limit the width of all docks, regardless of configuration. City staff has argued that Section 6-26(c) is clarified by the Definitions found at Ordinance Section 1-2. But "cross -bar" and "dock cross -bar' are defined to apply only on "L shaped and T shaped docks". The terms "T shaped dock" and "L shaped dock" are not defined by the ordinance. There is no restriction in the ordinance on overall width of dock structures that applies to all docks regardless of configuration. Our company has been engaged in business locally for many years. We proceeded with construction in good faith. The Bhojwanis' dock is comparable to many of the docks we've constructed for residential property owners over the years. Demolition and removal of the dock will not benefit any abutting owner or any public interest. I request that the Planning Commission recommend approval of the variance requested by the Bhojwanis. Thank you. Very truly our Tom Niccum A l wc� kc,woyb 4" 3 32. g1 ps 45av �ko,wai)l PutApv\er�r pocA 2, 2� �-eA M. SCANNED This address by appointment only: 1305 COMMERCE BOULEVARD MOUND, MINNESOTA 55364 April 16, 2009 PETER W. JOHNSON ATTORNEY AT LAW Please direct all correspondence/inquiries to: 15250 WAYZATA BOULEVARD, SUITE 103 WAYZATA, MINNESOTA 55391 TELEPHONE (952) 475-1901 FACSIMILE (952) 476.0007 EMAIL- PETERJ@PETERWJOHNSON.COM DIRECT DIAL: (952) 475-1907 CELLULAR: (612) 741-1907 Chairperson and Members of the Chanhassen Planning Commission City of Chanhassen 7700 Market Boulevard P. O. Box 147 Chanhassen, MN 55317 Re: Permanent dock being constructed by Gary and Kelli Bhojwani at 3301 Shore Drive in Chanhassen Dear Chairperson and Members: I represent Gary and Kalil Bhojwani concerning their application for a variance allowing them to complete construction of a permanent dock being constructed by Minnetonka Portable Dredging on their property at 3301 Shore Drive. I also represent Minnetonka Portable Dredging. This letter is submitted as a supplement to the Bhojwanis' Variance Application and will discuss the legal principles that should inform the Planning Commission's recommendation to the City Council. The important background facts are detailed in a separate letter from Tom Niccum of Minnetonka Portable Dredging. Most importantly, Mr. Niccum reviewed the Chanhassen ordinances before commencing construction of the dock and he concluded in good faith that construction of the dock did not require a city permit. The dock is designed to be 50 ft in length and is five feet wide over most of its length. The swim platform is 8 feet wide and 12 feet long. The dock has three slips each having an interior measurement of 13 ft x 32 ft. Its total width is 71 feet. All of the piling had been installed before either the Bhojwanis or Minnetonka Portable Dredging were contacted by the City. Both the Bhojwanis and Minnetonka Portable Dredging have cooperated with the City and have honored the Stop Work Order that was issued on site. They did so notwithstanding the risks posed by the shifting lake ice. While awaiting a response to Mr. Niccum's request that the Stop Work Order be amended to allow necessary bracing and Chairperson and Members of the Chanhassen Planning Commission April 16, 2009 Page 2 decking, the dock was damaged by shifting lake ice during the spring thaw. The variance requested by the Bhojwanis is supported by a very real hardship that is not of their creation. They purchased their home two years ago and during their ownership they continued to use two seasonal docks that had been in use by the previous owner, apparently without complaint. The seasonal docks that were on the Bhojwani property during prior years had little or no little impact on abutting property owners because the docks were located at a considerable distance from the common property lines. The new dock is even more isolated from abutting properties. The scientific literature has established that some environmental consequences are associated with the use of docks and piers on our northern lakes. A bibliography of reviewed materials can be made available on request. According to the literature, the impact of the "shadow" cast by a typical dock has the affect of diminishing "aquatic plant abundance" resulting in a loss of macrophyte habitat directly under the pier. Environmentalists are rightly concerned that allowing uncontrolled proliferation of residential docks along a section of shoreline might cause unanticipated consequences. The main concern voiced in the scientific literature is directed at uncontrolled proliferation and density of adjacent dock uses overall. I found no consensus on what concentration of docking structures would result in a measurable environmental impact. Importantly, I have found no studies in the literature showing a detrimental environmental impact from a single dock in a location separated from other structures. There is no consensus on how to reduce the expected impact from a concentrated proliferation of docks. Shorter docks will bring power boats closer to shore, causing disruption of bottom sediments. Boats stored in the water cast more of a shadow on the bottom and cause more disruption of plant growth patterns compared to boats stored on a lift. The shadow cast by an elevated docks has less impact than a dock constructed just above the waterline. Even the environmental community seems to acknowledge that an isolated docks or pier are a relatively benign human activity. That said, applying the City's 25 foot dock width limitation to all residential property, regardless of scale or lineal feet of shoreline imposes an unreasonable burden on a property owner with 1260 feet of shoreline and may actually over time result in land uses which are detrimental to the environment. If a property owner can't use more than 25 feet of shoreline for docking there will be increased development pressure to split or divide larger riparian parcels. Chanhassen's interest in limiting the proliferation will be well served by granting the Bhojwanis the requested variance. The City's ability to use and enforce a "one size fits all" regulation is an efficient and reasonable approach to regulation only if exceptions are allowed for unique circumstances which allows exceptions to avoid undue hardship. The Bhojwanis have requested that they be allowed to use 71 lineal feet of shoreline for docking purposes. The remaining 1189 lineal feet of their shoreline will continue to provide an unburdened natural habitat for aquatic animals and plants. ANALYSIS The Bhojwanis' property consists of almost 3.9 acres and has more than 1,000 lineal feet of shoreline on Minnewashta Lake. The partially constructed dock is located along the eastern shore at a substantial distance from either of the two properties which adjoin the Bhojwani's Chairperson and Members of the Chanhassen Planning Commission April 16, 2009 Page 3 property. At that point in the shoreline, the water depth accommodates a shorter dock and ensures that any activities at the dock are buffered from abutting property owners by almost 500 feet of unused shoreline in either direction. (In fact, because the property is a peninsula and the dock is located on the east side, the dock is not even visible to the neighbors that live to the Bhojwanis west side. As for the neighbors that live to the east of the Bhojwanis, there is at least 300 feet of shoreline between the dock and the eastern -most border of the Bhojwanis property line. In addition, there is a plot of open land between where the Bhojwanis eastern -most property line ends and the east neighbor's property begins. The net effect is that there is approximately 500 feet of shoreline between either edge of the dock and the Bhojwanis nearest neighbor to either side.) The relevant provisions of the Chanhassen Ordinances are Sections 6-4 and 6-26. Section 6- 4(a) provides that no permit is required for any dock that is erected or maintained in compliance with the other provisions of chapter 6. Section 6-26 provides in relevant part: "(a) No more than one dock shall be permitted on any lakeshore site. (b) No dock shall exceed six feet in width and no dock shall exceed the greater of the following lengths: 0 ) 50 feet; or (2) The minimum straight-line distance necessary to reach a water depth of four feet. (c) The width (but not the length) of the cross -bar of any "T" or "L" shaped dock shall be included in the computation of length described in the preceding sentence. The cross -bar of any such dock shall not measure in excess of 25 feet in length. No dock shall encroach upon any dock setback zone; provided, however, that the owners of any two abutting Lakeshore sites may erect one common dock within the dock setback zone appurtenant to the abutting lakeshore sites, if the dock is the only dock on the two lakeshore sites and if the dock otherwise conforms with the provisions of this chapter." THE STATUTE IS IMPERMISSIBLY VAGUE AS ENFORCED The ordinance text is poorly drafted, particularly given the interpretation claimed by city staff. The ordinance includes no clear language limiting the complete or overall width of any or all docks. To support the city's interpretation, the ordinance should include clear language that putting the public on notice that no dock shall be more than 25 feet wide. In contrast, the language in the city ordinance restricts cross bars to 25 feet of width on only on "T and L shaped docks" and then provides that the dock may not encroach into the dock setback zone defined as a buffer zone between abutting properties along the shoreline. Under Minnesota law, an ordinance is interpreted to give the words used their "common and well understood meaning". Few people with experience in selling, designing or installing docks would understand the language of the ordinance to prohibit construction of the dock designed (and partially constructed) for the Bhojwanis by Minnetonka Portable Dredging. SCANNED Chairperson and Members of the Chanhassen Planning Commission April 16, 2009 Page 4 It is highly relevant that other dock regulators in the area regulate the width of docks solely or primarily in reference to "side -yard setbacks" (i.e. setbacks from abutting lakeshore properties). As drawn, both experienced lakeshore property owners and professionals in the trade would likely interpret the ordinance just as Tom Niccum did. Most such readers would not conclude that the language restricting the length of the cross -bar on a T or L shaped dock was intended to limit the width of all docks, regardless of configuration. City staff has argued that Section 6-26(c) is clarified by the Definitions found at Ordinance Section 1-2. The relevant sub -sections read as follows: "Cross -bar means that portion of any L shaped or T shaped dock which is approximately parallel in alignment to the adjoining shoreline or ordinary high water mark. See Dock Cross -bar. (6) Dock cross -bar means that portion of any "L" shaped or "T" shaped dock which is approximately parallel in alignment to the adjoining shoreline or ordinary high water mark. See Cross bar. (20)" These sections do not add clarity. The terms "cross -bar' and "dock cross -bar' are both expressly defined to apply only on L shaped and T shaped docks. The terms "T shaped dock" and "L shaped dock" are not defined by the ordinance. There is no restriction in the ordinance on overall width of dock structures that applies to all docks regardless of configuration. The City of Chanhassen is obligated to enforce its ordinances in a reasonable manner. An ordinance that mandates a permit for construction must be especially clear. The City has no right to order a valuable improvement to real property demolished based upon an ordinance that doesn't put the public on notice that a permit for the construction was required. Similarly, a city has no right to order construction stopped at an arbitrary point during construction when doing so exposes the improvement to known hazards. Whether an ordinance is sufficiently clear is considered in the context of the specific fact situation presented. So while the Chanhassen ordinance may be sufficiently clear for a property owner who intends to construct an L shaped dock, it is impermissibly vague for a property owner constructing a dock with multiple dock slips on a parcel with extensive shoreline and no encroachments into the setback zones. I'm confident that our courts would find the regulation unconstitutional as is now being applied to the Bhojwani dock. According to Gergen, at. al. vs City of Mantorville, A05-1717, Ct. of App. Published (2009) there are three primary rules of construction that govern the interpretation of a city ordinance. First, ordinances are given their plain and ordinary meaning. Frank's Nursery Sales. Inc., 295 N.W.2d at 608. Second, ordinances should be construed strictly against a municipality and in favor of a landowner. Id. at 608-09. Third, ordinances must be considered in light of their underlying policy goals. Id. at 609. The Court added that "rules that govern the construction of statutes are applicable to the construction of ordinances." citing Smith v. Barry, 219 Minn. 182, 187, 17 N.W.2d 324, 327 (1944). The ordinance was interpreted according to its plain and ordinary meaning by Tom Niccum. He SCANNED Chairperson and Members of the Chanhassen Planning Commission April 16, 2009 Page 5 believed that the dock could be constructed without a permit from the City of Chanhassen. Now, support piers for the entire dock structure have been installed at considerable expense. The Bhojwanis have relied on Mr. Niccum's expertise. All parties have acted in good faith. The parties do not wish to argue or litigate over the conflicting interpretations. However, it the Planning Commission, in making its recommendations, should take into account that the ambiguities in the Chanhassen ordinance contributed to the hardships now faced by the Bhojwanis. IMPERMISSIBLE RESTRICTION ON RIPARIAN RIGHTS Chanhassen has interpreted its ordinances to restrict the Bhojwanis' docking rights to a single 25 foot wide dock on a property with more than a thousand feet of shoreline. Clearly, if the City is unwilling to permit exceptions to its "one size fits all" approach to regulation, the Bhojwanis' ability to use and enjoy their riparian shoreline will be significantly impacted. The City has not identified any compelling or important public interest that is protected by such a draconian restriction. Minnesota's property laws have consistently protected the rights of riparian owners to the use and enjoyment of their riparian shoreline. The Bhojwanis' riparian property rights may be regulated by the City of Chanhassen, but such regulations must protect an important public interest and must be carefully tailored so as not to impose unreasonable regulation on the Bhojwani's use and enjoyment of their riparian shoreline. A recent case decided by the Minnesota Court of Appeals is right on point. I've attached a copy of the Court's decision in Lake Minnetonka Conservation District vs Canning A05-1811 Mn. Ct. App. Unpublished (2006). In that case, the Court of Appeals reviewed enforcement of a "one size fits all" docking regulation by the Lake Minnetonka Conservation District (the "LMCD"). The Court struck down the LMCD's effort to impose a single rigid standard on all lakeshore homeowners. The Court found that the LMCD had impermissibly restricted a property owner's riparian rights by failing to grant a variance. Specifically, the Court ruled that the LMCD's strict application of its dock regulations and its reluctance to consider "the equities involved" seriously compromised the property owner's riparian rights. In reaching its decision, the Court of Appeals relied on well established precedents, stating: "The owner of riparian land enjoys the right of exclusive access to water that is directly in front of his or her waterfront property, and "title extends to the low-water mark." State, by Head v. Slotness, 289 Minn. 485, 487, 185 N.W.2d 530, 532 (1971). Riparian rights include the right to build and maintain suitable "wharves, piers, landings, and docks on and in front of riparian land to the point of navigability. Id.; State v. Korrer, 127 Minn. 60, 71-72, 148 N.W. 617, 622 (1914). A riparian owner "has a right to make such use of the lake over its entire surface, in common with all other abutting owners, provided such use is reasonable and does not unduly interfere with the exercise of similar rights on the part of other abutting owners." Johnson v. Seifert, 257 Minn. 159, 169, 100 N.W.2d 689, 697 (1960)." scout, Ero Chairperson and Members of the Chanhassen Planning Commission April 16, 2009 Page 6 The decision in LMCD vs Canning, Id., is an unpublished case. However, given the clear precedents supporting its decision, the Supreme Court properly refused to review the ruling. Consequently, the case confirms the that owners of riparian shoreline are still entitled to a reasonable use of their shoreline for docking and that those rights extend out to the point of navigability. I've not yet undertaken extensive research to identify properties in Chanhassen that may be comparable to the Bhojwanis' property. However, even a cursory review of aerial maps confirmed that the Bhojwanis have an exceptionally large lake lot, with perhaps more natural shoreline than any other residential property in the City (except Prince, who owns about 200 acres with riparian shoreline along the shoreline of 86 acre Lake Lucy). While the property owned by Prince has extensive shoreline, it is located on a very small lake. In contrast, the Bhojwanis' property abuts the largest lake in Chanhassen. A significant percentage of Minnewashta's shoreline is publicly owned park land or owned by the Girl Scouts. Those large tracts are not likely to have docks or piers constructed at intervals along the shore comparable to the areas that are in residential use. While the typical lake lot in the city may have only one hundred feet of lakeshore, the Bhojwanis are able to buffer their neighbors with a dock setback area that is almost 500 feet wide. This is a situation where "one size fit all" regulation is impermissibly restrictive when applied to the property of Gary and Kelli Bhojwani. The City staff have been reluctant to state the purpose and intent of its docking ordinance. The ordinance is silent on the issue. I conclude the ordinance is intended to limit the size and scale of a dock that can be constructed on a single residential site so that one owner's uses do not impose a burden on his neighbors or put an undue burden on the community's natural resources. Because the property at 3301 Shore Drive has extensive shoreline and is large in comparison to other properties in the City, there is no likelihood that the public interest or any neighboring property owner will be prejudiced by allowing the proposed dock to be constructed on the site. Based on the foregoing, I have advised Gary and Kalil Bhojwani that they are entitled to a variance from the ordinance. That is true regardless of whether the ordinance is vague and is easily supported solely upon the degree of hardship imposed on them as the owner of 1260 feet of shoreline. My clients have tried to work this out with the City staff. City staff has been courteous and seem to accept that both the Bhojwanis and Tom Niccum have acted in good faith. As counsel for the applicant, I respectfully submit that under the facts present, the Bhojwanis' variance should be recommended for approval. Thank you. `V/\e ours, Pen PWJ/jh SC'NNLD Lake Minnetonka Conservation District, Respondent, vs. Miles B. Canning, et al., Appell... Page 1 of 6 This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004). STATE OF MINNESOTA IN COURT OF APPEALS A05-1811 Lake Minnetonka Conservation District, Respondent, VS. Miles B. Canning, et al., Appellants. Filed June 27, 2006 Reversed and remanded Klaphake, Judge Hennepin County District Court File No. 05-1854 George C. Hoff, Justin L. Templin, Hoff, Barry & Kuderer, P.A., 160 Flagship Corporate Center, 775 Prairie Center Drive, Eden Prairie, MN 55344-7319 (for respondent) Thomas J. Radio, Hinshaw & Culbertson LLP, 3100 Campbell Mithun Tower, 222 South Ninth Street, Minneapolis, MN 55402 (for appellants) Judge.* Considered and decided by Klaphake, Presiding Judge, Stoneburner, Judge, and Harten, SCANNED http://www.lawlibrary.state.mn.us/archive/etapun/0606/opaO5l8ll-O630.htm 3/31/2009 Lake Minnetonka Conservation District, Respondent, vs. Miles B. Canning, et al., Appell... Page 2 of 6 UNPUBLISHED OPINION KLAPHAKE, Judge Appellants Miles and Pamela Canning challenge the district court's grant of summary judgment to respondent Lake Minnetonka Conservation District (LMCD). The LMCD brought this enforcement action seeking an injunction to require appellants to remove their dock, which does not meet LMCD regulations. Appellants argue: (1) the LMCD lacks authority to regulate the location or configuration of their private, noncommercial dock; (2) they have riparian rights to access the lake via their dock that cannot be eliminated without payment of just compensation; (3) their dock is a legal non -conforming use that cannot be removed by the LMCD absent use of eminent domain and the payment of fair compensation; and (4) the LMCD ordinances are an unconstitutional delegation of power because they allow neighboring landowners to withdraw consent to private docks. Because appellants have riparian rights to access navigable waters of the lake and because the position taken by the LMCD may interfere with those rights, we reverse and remand for further proceedings. FACTS Appellants own approximately 12 feet of lakeshore on Lake Minnetonka. It is undisputed that there has been a dock located on the property since the early 1930s, and appellants have maintained a dock and moored a boat there since they purchased the property in 1990. It is also undisputed that the dock fails to meet current LMCD regulations because it is outside appellants' authorized dock use area, which is a small triangular area as drawn by extension of the converging side lot lines into the lake, and because the extremely narrow width of the property makes it nearly impossible to meet the five-foot side setback requirements. In July 2000, appellants applied for a variance from the side setback and authorized dock use area regulations to allow them to continue to maintain their dock and moor their boat there. Appellants decided to withdraw their application after the LMCD voted to delay a decision and http://www.lawlibrary.state.mn.us/archive/Ctapun/0606/opa05l8ll-0630.htm 3/31/2009 Lake Minnetonka Conservation District, Respondent, vs. Miles B. Canning, et al., Appell... Page 3 of 6 referred the matter to staff. In August 2003, one of appellants' neighbors e-mailed the LMCD and requested that it enforce its regulations against appellants' dock. LMCD representatives met with appellants and discussed several options, including applying for a variance; combining appellants' shoreline with the two abutting properties to the west and installing one dock; or securing mutual consent from appellants' neighbors to install a dock and store a boat outside the authorized dock use area, which could be revoked by either neighbor at any time. In November 2003, appellants renewed their request for a variance. The LMCD discussed appellants' application at several meetings and appointed one of its members to work on a compromise with appellants and their neighbors. At the LMCD's March 2004 meeting, this board member outlined three options for the board to consider. While appellants and their neighbors could not agree on any one option, they all appeared willing to compromise. Nevertheless, several board members expressed concerns about the extremely narrow width of appellants' lakeshore, the public safety issues associated with granting a variance to allow for no side setbacks, and the possible undesired precedent of granting a variance to allow continued historical dock usage. The board voted to deny appellants' variance and directed its attorney to prepare proposed findings. Two days later, however, appellants withdrew their variance application. Appellants continued to use their existing dock. In October 2004, the LMCD brought this action seeking compliance with its regulations and injunctive relief against appellants. In granting summary judgment to the LMCD, the district court determined that "[e] nforcing the ordinances in this case is appropriate and does not result in the taking of [appellants'] property without compensation." DECISION Appellants argue that they have riparian property rights that cannot be eliminated through LMCD regulation. They insist that they have the right to maintain a dock to the point of http://www.lawlibrary.state.mn.us/archive/etapun/0606/opaO5l8ll-O630.htm 3/31/2009 SCANNED Lake Minnetonka Conservation District, Respondent, vs. Miles B. Canning, et al., Appell... Page 4 of 6 navigability. They further insist that enforcement of the ordinance in this case impermissibly impedes their right because the extension of their converging side lot lines into the lake does not allow them to maintain a dock to the point of navigability. Appellants finally complain that the LMCD has not shown how its regulations serve the public right of navigability as opposed to serving the private rights of appellants' abutting neighbors. The owner of riparian land enjoys the right of exclusive access to water that is directly in front of his or her waterfront property, and "title extends to the low-water mark." State, by Head v. Slotness, 289 Minn. 485, 487, 185 N.W. 2d 530, 532 (1971). Riparian rights include the right to build and maintain suitable "wharves, piers, landings, and docks on and in front of riparian land to the point of navigability. Id.; State v. Korrer, 127 Minn. 60, 71-72, 148 N.W. 617, 622 (1914). A riparian owner "has a right to make such use of the lake over its entire surface, in common with all other abutting owners, provided such use is reasonable and does not unduly interfere with the exercise of similar rights on the part of other abutting owners." Johnson v. Seifert, 257 Minn. 159, 169, 100 N.W.2d 689,697 (1960). In order to determine the extent of riparian rights, riparian boundaries must be ascertained. Minnesota case law does not endorse a specific method for drawing riparian boundaries, although a method is described in Edward S. Bade, Title, Points & Lines in Lakes & Streams, 24 Minn. L. Rev. 305, 306-07 (1940). Bade rejects a "rule of straight projection" to arrive at riparian rights and suggests a more proportionate method based on the shape of the lake. Id. at 341. While no single method applies in every case, what remains important is that the boundaries are drawn in a fair and equitable manner. See, e.g., Rooney v. Stearns County Bd., 130 Minn. 176, 180-81, 153 N.W. 858, 860 (1915); Scheifert v. Briegel, 90 Minn. 125, 133, 96 N.W. 44, 48 (1903). The method adopted here by LMCD regulations for defining the authorized dock usage area was firmly criticized by Bade in his article as being fraught with inequity. Bade at 331-34. And the LMCD's strict application of its regulations to appellants' property and reluctance to http://www.lawlibrary.state.mn.us/archive/ctapun/0606/opaO5l8ll-O630.htm 3/31/2009 SCANNED Lake Minnetonka Conservation District, Respondent, vs. Miles B. Canning, et al., Appell... Page 5 of 6 consider the equities involved appear to have seriously compromised appellants' riparian rights. Because genuine issues of material fact exist regarding the extent of appellants' riparian rights, we conclude that the district court erred in granting summary judgment to the LMCD. See Minn. R. Civ. P. 56.02. While the LMCD may place some reasonable restrictions on the size and location of appellants' dock and boat, appellants are correct in arguing that LMCD regulations cannot so restrict their riparian rights as to deny them access to the navigable waters of the lake. Under LMCD regulations, extension of the side lot lines of appellants' abutting neighbors appears to cut off appellants' reasonable access to navigable water. We therefore reverse the district court's grant of summary judgment to the LMCD and remand for further proceedings. On remand, the district court should determine the extent of appellants' riparian rights subject to reasonable enforcement of LMCD regulations against appellants' property in a manner that is fair and equitable, while still addressing public safety concerns. See State v. Kuluvar, 266 Minn. 408, 418, 123 N.W.2d 699, 706 (1963) (riparian rights are "subordinate to the rights of the public and subject to reasonable control and regulation by the state"); Johnson, 257 Minn. at 165 n.5, 100 N.W.2d at 694 n.5 (riparian rights are subject to state regulation for public purposes). Finally, we make the following comments in the interests of justice. First, the LMCD has authority to regulate private docks on Lake Minnetonka for the benefit of the public and navigation. See Minn. Star. § 103B.611, subd. 3(6) (2004) (stating that LMCD has authority to "regulate the construction, installation, and maintenance of permanent and temporary docks and moorings"); City of Birchwood Village v. Simes, 576 N.W.2d 458, 462 (Minn. App. 1998) (statute creating White Bear Lake Conservation District, which is substantially similar to statute creating LMCD, "represents an effort by the local municipalities to cede authority to the board to regulate all manner of activities affecting the lake," including size of boats that may be moored to private docks). Second, because riparian rights are always subject to state regulation in the public interest, a landowner's preexisting and continuing use of his or her lakeshore property is http://www.lawlibrary.state.mn.us/archive/ctapun/0606/opa05l8ll-0630.htm 3/31/2009 Lake Minnetonka Conservation District, Respondent, vs. Miles B. Canning, et al., Appell... Page 6 of 6 not a lawful non -conforming use if the LMCD finds other factors, such as public safety, more important. See Bartell v. State, 284 N.W.2d 834, 838 (Minn. 1979). Finally, because we have determined that application of LMCD regulations to appellants' property has caused the potential loss of their riparian rights, we need not decide whether those regulations are also unconstitutional because they allow the LMCD to delegate its authority to neighboring landowners. Reversed and remanded. * Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. http://www.lawlibrary.state.nm.us/archive/etapun/0606/opaO5l8ll-O630.htm 3/31/2009 e M.pp"�' 4co .� /y �i _fir ryp•i . P+ .w R'' a �}'� rk4 tr ��4 � 1 � t i'�y�.5'��c ' J'•�oii` y, allot., i� 5P tl�iF as W�• aP pq4 •j `i-. 6 _.n, n 't1.'11 Ti`A 5(µ i L �� 1 � •Y [.` �G� ii�\ ' ., P,wEy�� 1. �; 54,L'r " ?4�a� .,t44' L E a� ,,� R \`�ik •a ,4 d a —IN ANS mti7ita5 n !� ' .n T Lake Minnewashta Shoreline Frontage for Residential Parcels SCFlNHLD PLAT LOT BLOCK SHORELINE PLAT LOT BLOCK SHORELINE Minnewashta Landings 1 2 117 Sunset Hill 100 Minnewashta Landings 2 2 108 Sunset Hill 90 Minnewashta Landings 3 2 103 Sunset Hill 90 Minnewashta Landings 4 2 110 Sunset Hill 100 Minnewashta Landings 5 2 116 Sunset Hill 135 Minnewashta Landings 6 2 113 Sunset Hill 420 Minnewashta Landings 7 2 109 Getsch Addition 1 1 165 Minnewashta Landings 8 2 112 Getsch Addition 2 1 150 Minnewashta Landings 9 2 93 Getsch Addition 3 1 150 RLS 9 A 126 Getsch Addition 4 1 152 RLS 9 B 126 Getsch Addition 5 1 150 RLS 7 F 116 Crimson Bay 1 1 99 RLS 7 G 116 Crimson Bay 2 1 116 RLS 7 H 278 Crimson Bay 3 1 180 RLS 7 M 86 Crimson Bay 4 1 237 RLS7 N 86 Crimson Bay 5 1 226 RLS7 0 81 Cedar Crest 1 1 350 RLS 29 B 100 Cedar Crest 2 1 225 RLS 29 C 190 Cedar Crest 3 1 180 RLS 78 A 112 Gauer Addition 1 1 125 RLS 78 B 112 Gauer Addition 2 1 70 Minnewashta Heights 1 5 97 Bucheit Addition 1 1 90 Minnewashta Heights 2 5 97 Bucheit Addition 2 1 108 Minnewashta Heights 3 5 97 Bucheit Addition 3 1 91 Minnewashta Heights 4 5 97 Cedar Crest 7 1 120 Minnewashta Heights 5 5 97 Troll's Glen 1 1 66 Minnewashta Heights 6 5 77 Troll's Glen 2 1 95 Minnewashta Heights 7 5 95 Troll's Glen 3 1 100 Minnewashta Heights 8 5 80 Troll's Glen 4 1 110 Minnewashta Heights 9 5 50 Troll's Glen 5 1 91 Minnewashta Heights 30 5 80 Kellyne 3 1 77 Minnewashta Heights 11 5 84 Kellyne 4 1 83 Minnewashta Heights 12 5 93 Kellyne 2 2 78 Boyer's Sterling Estates 1 3 145 Kellyne 3 2 77 Boyer's Sterling Estates 2 3 126 7380 Minnewashta 250 Boyer's Sterling Estates 3 3 144 7351 Minnewashta 160 Boyer's Sterling Estates 4 3 155 7331 Minnewashta 168 Boyer's Sterling Estates 5 3 143 7301 Minnewashta 175 Boyer's Sterling Estates 6 3 147 Maple Ridge 7 1 100 RLS 10 C 100 Maple Ridge 8 1 120 RLS 10 D 140 3815 Red Cedar Pt 135 Minnewashta Manor 1 3 83 3837 Red Cedar Pt 57 Minnewashta Manor 2 3 115 Red Cedar Point 4 750 Minnewashta Manor 3 3 87 Red Cedar Point 1 4 450 Minnewashta Manor 4 3 86 Red Cedar Point 2 4 196 Minnewashta Manor 5 3 80 Red Cedar Point 4 4 122 Minnewashta Manor 6 3 77 Red Cedar Point 5 4 161 Minnewashta Manor 7 3 83 Red Cedar Point 7 4 122 Minnewashta Manor 9 3 95 Red Cedar Point 9 4 80 Minnewashta Manor 10 3 99 Red Cedar Point 11 4 50 Olivewood 1 2 35 Red Cedar Point 13 4 72 Olivewood 2 2 124 Red Cedar Point 14 4 40 Olivewood 3 2 144 Red Cedar Point 15 4 50 Olivewood 4 2 147 Red Cedar Point 16 4 40 Olivewood 5 2 144 Olivewood OL B Olivewood 3 1 226 Bhojwani Parcel 1049 L.F. PLAT LOT BLOCK SHORELINE Red Cedar Point 18 4 66 Red Cedar Point 19 4 77 Red Cedar Point 21 4 40 Red Cedar Point 22 4 40 Red Cedar Point 23 4 98 Red Cedar Point 25 4 40 Red Cedar Point 26 4 50 Red Cedar Point 28 4 74 Red Cedar Point 29 4 120 Red Cedar Point 32 4 120 Red Cedar Point 35 4 171 Red Cedar Point 1 1 46 Red Cedar Point 2 1 40 Red Cedar Point 3 1 74 Red Cedar Point 5 1 40 Red Cedar Point 6 1 82 Red Cedar Point 8 1 40 Red Cedar Point 9 1 120 Red Cedar Point 12 1 180 Red Cedar Point 17 1 60 Red Cedar Point 18 1 265 Red Cedar Point 21 1 80 Red Cedar Point 22 1 165 Red Cedar Point 24 1 110 Red Cedar Point 26 1 50 Red Cedar Point 27 1 87 Leach Addition 1 1 133 Red Cedar Cove 19 1 32 White Oak Addition 1 1 109 White Oak Addition 2 1 141 6870 Minnewashta 264 6810 Minnewashta 130 6760 Minnewashta 192 6651 Minnewashta 155 6701 Minnewashta 152 6671 Minnewashta 145 6651 Minnewashta 145 Pleasant Acres 1 7 190 Pleasant Acres 2 7 122 Pleasant Acres 3 7 178 Pleasant Acres 4 7 195 Minnewashta Creek 1st 1 2 126 Minnewashta Creek 1st 2 2 265 Washta Bay Court 1 1 74 Washta Bay Court 2 1 85 Mean 124.78 Min 32 Max 750 Mode 40 Median 110 SCNrjluLO r M. ❑9-07 LETTERS OF SUPPORT z SCANNED