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PC Staff ReportCITY OF CHANHASSEN PC DATE: September 20, 2022 CC DATE: October 10, 2022 REVIEW DEADLINE: October 18, 2022 CASE #: PC 2022-13 BY: MYW SUMMARY OF REQUEST: The applicant is requesting a 22.3-foot shoreland setback variance to accommodate the construction of a new home and deck which would be respectively setback 64.5 and 52.7 feet from the ordinary high water level (OHWL). The property’s existing home has a nonconforming 65-foot shoreland setback and expanding and increasing the nonconformity would be require a variance from the 75-foot shoreland setback. LOCATION: 3609 Red Cedar Point Road APPLICANT: Kerber Family Homes, LLC Brad Kerber 10685 Co Rd 43 Chaska, MN 55318 PRESENT ZONING: “RSF” – Single-Family Residential District 2040 LAND USE PLAN: Residential Low Density ACREAGE: .4 acres DENSITY: NA 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 Zoning 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. Notice of this public hearing has been mailed to all property owners within 500 feet. PROPOSAL/SUMMARY The applicant is requesting a 22.3-foot shoreland setback from the south lot line to build a new house and deck replacing an existing home with a nonconforming 10-foot encroachment into the property’s 75-foot shoreland setback. The applicant has stated that the existing home is uninhabitable and that a new home is needed to allow reasonable use of the property. The PROPOSED MOTION: “The Chanhassen Board of Appeals and Adjustments denies the requested 22.3 foot shoreland setback variance, and approves a 10 foot shoreland setback for the construction of a home and deck, subject to the conditions of approval, and adopts the attached Findings of Facts and Decision.” 3609 Red Cedar Point Road September 20, 2022 Page 2 applicant has noted that the property is bordered by Lake Minnewashsta on the north and south and is also bisected by a private drive. They feel these factors, combined with the location of the neighboring houses, create a practical difficulty which necessitates the requested variance. They observe that they have brought the property’s side yard setbacks into compliance with the zoning code are not proposing to exceed the zoning district’s 25 percent lot cover limit. Finally, they believe that the size of the home they are proposing and shoreland setback variance that they are requesting is comparable to what has been granted to other properties in the area. It has been the City’s general practice to require properties with existing nonconforming shoreland setbacks to maintain those setbacks and not encroach further into the required shoreland setback. In this case, the existing home has a nonconforming 65-foot shoreland setback and the applicant’s proposed house would have a 64.5-foot shoreland setback with the deck having a proposed 52.7-foot shoreland setback. While the presence of two shoreland setbacks has the potential to create a practical difficultly, the property’s 217-foot length and 79- foot width provides for a viable 67-foot by 59-foot building pad without the issuance of variances. The applicant’s desire to maintain separation from the private drive is understandable; however, the nearness of the north portion of the home to the public drive is the result of the applicant’s decision to propose 21-foot by 24-foot porch and entryway for the property that is 17 feet from the private drive at its closest point. A design choice cannot justify increasing the encroachment into the shoreland setback, and staff notes the other homes on the peninsula have been constructed with northern decks much closer to the private drive. The applicant’s house could be shifted further to the north to minimize the encroachment into the south shoreland setback and the applicant could either reduce the size of the front entryway or accept a reduced setback from the private drive. Examining the location and configuration of the surrounding houses and taking into consideration the minimum driveway length required by City Code, staff recommends that the applicant be required to shift the proposed house forward and redesign the home and deck to maintain the existing nonconforming setback. Staff believes this recommendation takes into account the practical difficulties created by the unique characteristic of the lot, the prevailing conditions of the neighborhood, and the City’s interest in not allowing homes to further encroach into the shoreland setback. APPLICABLE REGULATIONS Chapter 1, General Provisions Section 1-2, Rules of Construction and Definitions Chapter 20, Article II, Division 3. Variances Chapter 20, Article II, Division 4. Nonconforming Uses Chapter 20, Article VII. Shoreland Management District. Chapter 20, Article XII, “RSF” Single-Family Residential District Section 20-615, Lot Requirements and Setbacks. Chapter 20, Article XXIV, Division 2, Parking and Loading 3609 Red Cedar Point Road September 20, 2022 Page 3 Section 20-1122, Access and Driveways BACKGROUND County records indicate that the house was built in 1917. Several permits for maintenance are on file with the city. SITE CONSTRAINTS Zoning Overview The property is lot zoned Single-Family Residential District and is located within the Shoreland Management District with lake frontage along the north and south lot lines. This zoning classification requires riparian lots to be a minimum of 20,000 square feet, have front yard setbacks of 30 feet, side yard setbacks of 10 feet, a shoreland setback of 75 feet, and limits parcels to a maximum of 25 percent lot cover. Riparian lots are required to have 90 feet of lake frontage and as the lot is accessed by a private street it is required to have a width of 100 feet at the building setback line. Residential structures are limited to 35 feet in height, and properties are allowed one water oriented accessory structure up to 250 square feet in size within the 75-foot shoreland setback. The lot is 16,501 square feet with an estimated 2,207 square feet (13.4 percent) lot cover. The northern and southern lot lines have only approximately 79 of the required 90 feet of lot frontage. The lot’s width at building setback is 79 feet. The existing home has nonconforming 65-foot south shoreland and 4.6-foot west side yard setbacks. The property has access to a public street via a private street that bisects the property. The other features of the property appear to meet the other requirements of the City Code. Bluff Creek Corridor This is not encumbered by the Bluff Creek Overlay District. Bluff Protection There are no bluffs on the property. Floodplain Overlay Portions of the northern and southern edges of the property are within the AE Flood Zone (1 percent annual flood chance); however, no portion of the proposed project will take place within those areas. Shoreland Management 3609 Red Cedar Point Road September 20, 2022 Page 4 The property is located within a Shoreland Protection District and has lake frontage along the northern and southern lot lines. This district requires a 75-foot structure setback from the lake’s ordinary high-water level and limits the property to a maximum impervious surface coverage of 25 percent. It also requires 90 feet of lot width and a minimum 20,000 square feet of lot area. Wetland Protection There is not a wetland located in the development site. NEIGHBORHOOD Red Cedar Point The plat for this area was recorded in August of 1913. Over the subsequent century, the City of Chanhassen was formed, a zoning code was passed, the zoning code was amended numerous times, and buildings were built, demolished, and rebuilt to meet the standards and needs of the existing ordinances. Additionally, the neighborhood’s roads were not always constructed within their designated right of way. In some areas, this has led to portions of buildings being located in the right of way and portions of these roads being located within residents’ property lines. Very few properties in the area meet the requirements of the city’s zoning code, and most properties either are nonconforming uses or are operating under a variance. Variances within 500 feet: 3603 Red Cedar Point Rd. (PC 2015-14): 20.2’ front setback, 17’ lake setback (two-story attached garage) - Approved 3605 Red Cedar Point Rd. (PC 1988-11): 4’ E side setback, 2’ W side setback, 26’ lake setback (garage, addition intensifying non-conforming) - Approved 3607 Red Cedar Point Rd. (PC 1981-08): 7.5’/13.5’ lake setback (deck/stairs) – Approved (PC 1992-01): 1.5’ side setback, 14.5’ lake setback (addition expanding non-conforming) - Approved 3613 Red Cedar Point Rd. (PC 1976-11):10’ lot frontage (house) - Approved (PC 1979-02): 20’ and 13’ front setback, sub 20,000 sq. ft. lot area (house) - Approved 3609 Red Cedar Point Road September 20, 2022 Page 5 (PC 1983-09): 12’ front setback, 2’ side setback, 7’ lake setback (house) – Approved 3616 Red Cedar Point Rd. (PC 2021-01): 18’ east front setback, 13’ lake setback (deck) - Approved 3617 Red Cedar Point Rd. (PC 2018-01): 11.5’ front setback, 22.1’ lake setback, 11% LC (home) – Approved* (PC 2019-03): 8.5’ front setback, 25.1’ lake setback, 10.4% LC (home) - Approved 3618 Red Cedar Point Rd. (PC 1993-06): 8’ side setback, 15’ lake setback (deck and porch) - Approved 3622 Red Cedar Point Rd. (PC 2017-09): Intensify non-conforming by raising garage in side yard setback (garage) - Approved 3624 Red Cedar Point Rd. (PC 1985-20): 1.2’ front setback, 4.8’ side setback (detached garage) - Approved 3625 Red Cedar Point Rd. (PC 2009-15): 15.5’ front setback, 6.5’ E side setback, 9’ driveway setback, 18.5’ lake setback, 12.3% LC, allow one car garage (house) - Approved 3627 Red Cedar Point Rd. (PC 2016-11): 13.6’ lake setback, 4.8% LC (home) - Approved 3628 Hickory Rd. (PC 2002-05: 13’ front setback (Hickory), 2’ front setback (Red Cedar Point), 5’ side setback (detached garage) - Approved 3629 Red Cedar Point Rd. (PC 1980-08): 12’ front setback, 3’ foot side setback, +1.5’ side setback for (chimney), 20’ lot width, 40’ lot frontage, 13,000 square feet lot area (house) - Approved (PC 1987-13): 12’ front setback, 3’ side (house) - Approved 3633 South Cedar Drive (PC 2006-04): 22.5’ front setback, 15.8’ front setback, 2.39% LC (garage) - Approved 3637 South Cedar Drive (PC 1978-07): 19’ front setback (garage) - Approved (PC 2004-07): 19.25’ front setback, 4’ lake setback, 15% LC (addition) - Approved (PC 2008-04): 20.2’ front setback, 8’ side setback (house) - Approved 3701 South Cedar Drive (PC 1980-04): 14’ front setback, 25’ lake setback, and sub 20,000 sq. ft. lot (house) - Approved (PC 1985-27): 5’ front setback, 35’ lake setback (house) – Approved (PC 2015-07): increase existing non-conformity (enclose deck 15’ in 3609 Red Cedar Point Road September 20, 2022 Page 6 lake setback) - Approved *Note: Variance 18-01 lapsed due to one year passing without construction occurring. ANALYSIS Shoreland Setback The City’s shoreland ordinance establishes a 75-foot structure setback in order to prevent the installation of lot cover near ecologically sensitive areas, creates separation between structures and the lakeshore, and provides for a consistent visual aesthetic for riparian properties. Due to the important role that this setback plays in protecting the quality of the City’s lakes and the potential for these variances to impact both the neighboring properties and all users of the city’s lakes, the city has historically been very hesitant to grant shoreland setback variances. When these properties with existing nonconforming shoreland setbacks apply for variances to expand, staff has always recommended that the expansion be required to maintain the existing lake setback. In this case, the existing home has a nonconforming 65-foot shoreland setback from the south property line. The applicant is proposing to construct a new home with a significantly larger footprint which will feature a deck with a 52.7-foot shoreland setback. The applicant has stated that this reduced shoreland setback is needed due to the presence of two shoreland setbacks, the location of the private drive, and the placement of the neighboring homes. One of the findings necessary for granting a variance is that, “The plight of the landowner is due to circumstances unique to the property not created by the landowner.” This property has two unique elements, the presence of dual shoreland setbacks and the private drive bisecting the lot. With regards to the shoreland setbacks, the property is approximately 217 feet long at its shortest and 79 feet wide at its narrowest point. This leaves a 67-foot long (217-foot lot length minus 150-foot shoreland setbacks) by 59-foot wide (79-foot lot width minus 20-foot side yard setbacks) building pad available for construction without the need for any variance. As a point of comparison, the City’s subdivision ordinance requires that developers show a viable 60 by 60-foot building pad clear of all required setbacks when proposing lots with the expectation that this area is sufficient to provide for reasonable use of the lot (i.e. single-family home, garage, deck/patio area, etc.). Other provisions of the City Code like the RSF district’s 125-foot minimum lot length which combines with the required 30-foot front and rear setbacks to provide a 65-foot long building pad or the Residential Low and Medium Density district’s 110-foot minimum lot length which combines with the required 25-foot front 3609 Red Cedar Point Road September 20, 2022 Page 7 and rear setbacks to provide a 60-foot deep building pad, all reinforce the assumption that an approximately 60-foot long building pad provides for reasonable use of a parcel. Based on the above, that the difficulty that the applicant is encountering in building on the parcel is not that the two shoreland setbacks do not provide a reasonable building pad, but rather that the applicant’s proposed house, decks, and porches have a combined length of 80 feet. Numerous aspects of the applicant’s design choices such as a 12-foot-deep deck section to accommodate a hot tub or combined 21-foot deep covered porch and foyer on the front of the house could be modified to reduce the proposed encroachment into the southern setback. For these reasons, the difficulties related the two shoreland setbacks should be understood to be primarily the result of the applicant’s proposed design rather than the unique circumstances created by the parcel’s location on a peninsula. The second unique element of the property, the private drive, does serve to constrain the applicant’s placement of the proposed house on the property. While there is no formal setback required from a private drive, staff acknowledges that the house should be setback a sufficient distance to allow for guests to park in the driveway without obstructing the private drive. The applicant is proposing placing the home in a location where the closest portion of the front porch would be setback 17 feet from the edge of the private drive and the shortest portion of the driveway would be 22 feet long. A driveway of this length could accommodate the parking of one row of vehicles across the width of the garage for a total of three off street parking spaces; however, the applicant could provide a similar amount of off street parking if the home was shifted forward by four feet to better align with the area of the lot located outside of the shoreland setbacks. This would reduce the driveway length to 18 feet at its shortest point which is the minimum driveway length required by the City Code and corresponds to the required length of parking stalls. In this scenario the longest portion of the driveway still be approximately 24 feet long which would provide an area capable of accommodating longer vehicles. While shifting the home forward by four feet would also reduce the setback of the closest portion of the front porch to from the private drive from 17 feet to 13 feet, the private drive only serves four other properties and is not heavily traveled. Additionally, the other properties served by the private drive all have either decks or structures significantly closer to the private drive. Finally, as was noted above, the front porch and foyer have a combined length of 21 feet which could be reduced if the applicant desired additional separation. Staff agrees with the applicant that the private drive is a unique characteristic of the property but based on the demonstrated viability of shifting the home forward, does not agree that it necessitates the requested shoreland setback variance. 3609 Red Cedar Point Road September 20, 2022 Page 8 The applicant has stated that the placement of the neighboring homes near the side lot line and their respective setbacks from the lake crowds their lot and blocks lake views. They have stated that they have proposed a plan which meets the required 10-foot side yard setbacks and moves the home towards the lake to create a contiguous row of homes providing equal lake views. Staff appreciates the fact that the applicant is eliminating the property’s nonconforming side yard setbacks, but cannot agree that that requested shoreland setback variance is justified by the location of the neighboring homes. If a line is drawn connecting the closest corners of the neighboring principle, as shown in the exhibit to the right, the applicant’s proposed principal structure can be seen to extend four feet closer to the lake than the line denoting the average setback would support. As was noted above, the home could be shifted forward by four feet while still providing an adequate driveway length. In general, due to the requirement that a variance be granted due to unique characteristics of a property, nonconforming elements of surrounding properties should not be used to justify a variance. Doing so would lead to an area’s smallest setback or highest amount of lot cover becoming the standard, regardless of if a given property required that extreme of a variance to provide for reasonable use. Instead, staff has always used the standard that the property’s existing nonconformity should establish the maximum extent of the variance, under the rational that properties can be rebuilt in the same footprint of a nonconforming structure and that intensification within that boundary is generally reasonable. In this case the applicant is requesting a 22.3-foot shoreland setback variance for a property with a 10-foot nonconforming encroachment into the shoreland setback. Given all of the above, staff does not believe that the requested shoreland setback variance should be granted. The house can be shifted forward and elements of the home and deck, could be redesigned to reduce the required shoreland setback variance to 10 feet. A shoreland variance of 10 feet would be consistent with past policy and provide relief from the practical difficulties created by the shared driveway. As the City’s Water Resources Engineer notes, the City is required to encourage nonconforming properties to move towards compliance when considering variances within the shoreland overlay district and to require measures to provide for stormwater runoff management and vegetative buffers when granting variances. To meet this requirement, staff is proposing that a 20-foot vegetative buffer be required to offset the reduced shoreland setback. 3609 Red Cedar Point Road September 20, 2022 Page 9 Impact on Neighborhood Red Cedar Point is one of the oldest neighborhoods in the city. Many of its properties are nonconforming uses, and 16 of the 21 properties within 500 feet of 3609 Red Cedar Point Rd have been granted at least one variance. Many of the five properties which do not have a variances also have nonconforming shoreland setbacks. The applicant has noted that they believe their request is consistent with the neighborhood and the variances that have previously been issued in the area. Of the 16 properties in the area that have received variances, 11 were permitted a reduced shoreland setback; however, only three of those properties were granted a shoreland setback variance of over 20 feet. To staff’s knowledge only 2 properties have been granted a variance to increase the extent of an existing encroachment into the shoreland setback. In the first case, PC 1985-27, appears to have allowed an old cabin to reconstruct with a new deck encroaching10 feet closer the OHWL than the nonconforming primary structure setback; however, surveys show the home was actually constructed with the deck 10 feet further from the OHWL than the nonconforming setback stated in the variance. Due to the age of the case, staff is unable to determine exactly what happened and why the house was built further back from the shore than the 1985 variance would appear to have permitted. In the second case, PC 2019-03, the City Council approved reducing a nonconforming 52.9-foot shoreland setback to a 49.9-foot shoreland setback in order to accommodate a driveway capable of providing off-street parking. The applicant’s request to reduce the existing shoreland setback from approximately 65 feet to 52.7 feet is a significantly larger reduction to an existing nonconforming setback than has previously been granted in this neighborhood. The majority of the requested reduction is to accommodate a deck along the south of the house. In a previous case, PC 2021-01, the City required the homeowner to relocate a proposed deck’s stairs that would have reduced a nonconforming shoreland setback by 5 feet (from 57 to 52 feet) to maintain the pre-existing setback. Staff’s reasoning was that granting a requested variance reducing an existing non-conforming shoreland setback for even a minor item, such as deck stairs, would contribute to establishing the precedent that homeowners can increase their nonconforming shoreland setbacks, which has the potential to lead to other more impactful variance requests. In the current case, the applicant has stated that one of their reasons for wishing to move the home closer to the lake is that neighboring homes infringe on their lake view. If a variance is granted under this rational, subsequent variance requests in the area can be expected to propose reducing their respective shoreland setback to bring their property in line with the shorter setbacks of their neighbors. Since 10 of the 21 properties within 500 feet of the applicants were built prior to 1980, staff anticipates that this neighborhood will have multiple future variance 3609 Red Cedar Point Road September 20, 2022 Page 10 requests as homes are rebuilt or remodeled and that the precedent set by this variance with regards to shoreland setbacks will be taken into consideration in these requests. The result of switching from a policy of maintaining the existing nonconforming setback, save in extreme circumstances, to a policy of permitting new construction to match shorter surrounding setbacks would significantly alter the character of the neighborhood by decreasing shoreland setbacks and allowing the construction of larger footprint homes. Decreased shoreland setback have the potential to negatively impact the quality of the lake as runoff from impervious surfaces has less associated greenspace to slow down and absorb the run off. Regarding the proposed size of the home, staff consulted real estate listings and county records to determine if the proposal is consistent with what is present in the neighborhood. With an estimated living area of nearly 5,000 square feet the proposed home would be the second largest house in a 500-foot radius; however, once lot size was taken into account the resulting floor area ratio (FAR) is the fourth highest of the 21 nearby properties. Additionally, the proposed FAR of .29 is larger than the average FAR of .26 for the seven homes built in the area after 2000. In short, the proposed home larger than, although not dramatically so, than much of the area’s recent construction. While it is true that the home is not atypically large, the extent of the shoreland setback being requested by the applicant is largely the result of where they have chosen to place the house on the lot, their proposed home configuration, and desired amenities. For these reasons, staff believes the applicant should be required to take steps to minimize the proposed shoreland setback variance. Ideally, through a combination of moving the home forward on the site and redesigning the deck and home. RECOMMENDATION Staff recommends that the Planning Commission deny the requested 22.3-foot shoreland setback variance, and approve a 10-foot shoreland setback for the construction of a home and deck, subject to the following conditions: 1. A permanent 20-foot native vegetated buffer with permanent buffer signs must be installed along both the north and south shorelines using species native to the ecotype. Buffer strip averaging may be used to achieve the total buffer area required. The buffer may be configured around the path and stairs. The buffer must be designed and installed by an experienced professional in native shoreline restoration. Design plans must be approved by the Water Resources Engineer. 2. The installation of any improvements on the Site shall meet all applicable jurisdictional requirements, including but not limited to the Minnesota Department of Natural Resources and the Minnehaha Creek Watershed District, and all applicable permits shall be obtained prior to any site improvements. 3. Building plans must provide sufficient information to verify that proposed building meets all requirements of the Minnesota State Building Code, additional comments or requirements may be required after plan review 3609 Red Cedar Point Road September 20, 2022 Page 11 4. A building permit must be obtained prior to demolishing any structures on the site and before beginning any construction on the site. 5. Retaining walls (if present) more than four feet high, measured from the bottom of the footing to the top of the wall, must be designed by a professional engineer and a building permit must be obtained prior to construction. Retaining walls (if present) under four feet in height require a zoning permit. 6. If any soil corrections are done on the property a final grading plan and soil report must be submitted to the Inspections Division before permits will be issued. ATTACHMENTS 1. Findings of Fact and Decision (Approval) 2. Variance Document (Approval) 3. Development Review Application 4. Narrative 5. Plans (Proposed) 6. Survey (Existing) 7. House Plans 8. WRE Memo g:\plan\2022 planning cases\22-13 3609 red cedar point\staff report_3609 red cedar point_var.docx