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