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1991 07 08CHANHASSEN ZONING BOARD OF ADJUSTMENTS AND APPEALS REGULAR MEETING JULY 8, 1991 Chairman Johnson called the meeting to order. MEMBERS PRESENT: Willard Johnson, Carol Watson and Tom Workman STAFF PRESENT: Paul Krauss, Planning Director; Sharmin Al-Jarl, Planner I, Dave Hempel, Senior Engineer and Roger Knutson, City Attorney LOT FRONTAGE VARIANCE FOR THE CONSTRUCTION OF A SINGLE FAMILY RESIDENCE LOCATED ON PROPERTY ZONED RSF AND LOCATED ON LOT 35, BLOCK 4, RED CEDAR POINT (3727 SOUTH CEDAR), WILLIAM HAUGH. Tom Workman moved, Carol Watson seconded to approve the Lot Frontage Variance for the construction of a single family residence located on property zoned RSF and located on tot 35, Block 4, Red Cedar Point. All voted in favor and the motion carried unanimously. A 12 FOOT FRONT YARD VARIANCE FOR CONSTRUCTION OF A PORCH AND DECK LOCATED AT 180 FOX HOLLOW, STEVE AND SHARON PETERSON. Sharon Peterson: ...Ask a few questions about what's in this report. We received this last Friday and didn't have a whole lot of time to find out what some of these things mean. But in the first section where it says a hardship is self created. The applicant should not assume that Gray Fox Lane is to remain undeveloped. We never said in our application that we thought that it would never be developed. The only reason I mentioned that was because I didn't know until we tried to build these steps that we had what was considered two front yards. I had absolutely no idea that if you lived on a corner you had two front yards and your setback would be less. When we built the house, Rottlund Construction asked us how did we want the house situated. Where we wanted the garage. We told them we wanted the kitchen on the west side so we could put a deck there. We asked them, are we going to have a problem putting a deck there and they said no. Now I don't know about the average homeowner but I had no idea of setbacks. Nothing...and it wasn't brought up to us either. The only reason that I mention it was about...made the point that it was a typical sideyard setback...and real nice that we had two front yards. The other thing that it says here, the purpose of the variance is not based upon a desire to increase the value or income potential of the parcel of land. Well, I didn't say anything in there about increasing the value of my land because it was evident to me if you spend $9,000.00 on a porch and a deck, it's obviously going to increase the value of your home. If it didn't, it wouldn't make any sense to do it. Again, the difficulty or hardship was self created. This hardship was the result of a...Gray Fox Lane remained a paper street. I never said that. We also feel that this hardship was created by Rottlund Construction building the house right up to the setback with the only other exit to our house right there at the limit. That's the only place you could put a second exit in our house is right off the kitchen because there's no walkout. The basement, the family room is half underground. I don't know exactly what you'd call that but the windows are level with the grass. And also the City approved the plans. They say that Board of Adjustment and Appeals July 8, 1991 - Page 2 there was a door there and that was the only other door to the house, I don't understand how if there was this front yard setback, they could let Rottlund do it. Also about setting a precedent...new setbacks. I feel in order to set a precedent you need to have a pre-existing home with an exit on the side yard, on a corner in a PUD. If the City does their job and looks at these proposals from these builders, it shouldn't have to. I have no idea what a drainage and utility easement is so I don't know exactly how to express that but we planted two trees. We had all the utility companies come and mark where the cables are. They never sprayed on that side of our yard. I don't even know what a drainage easement is. Krauss: There are standards easements that are taken around each lot. They're normally taken inbetween lot lines for a couple of reasons. One is for drainage. Normally when you build a home, the home is up high and you have a swale going away from the home but your neighboring homeowner does the same thing. It channels the water away from the home into the street where it can be collected. We take standard utility easements for a variety of reasons. It's to protect an area whereby a cable company or the City or the gas company can install and does install facilities to serve the subdivision. It's not always used but it's always taken and it's always protected so it can be used when the need arises. Sharon Peterson: But the houses behind us and all the houses around us are already developed and there's nothing in there now. You could put a water line through there... Krauss: It's not impossible. Stranger things have happened. That does happen quite frequently. I'm not saying it's going to happen in each case. I honestly don't know but we do this as a standard routine for that reason. Steve Peterson: One thing I'd like to say, they said that this road was proposed. In the 1st Addition or something they had a different plat map that they showed us and there was just one big lot. There was no Gray Fox Lane that we know of and it was a big area. We saw something different that's not been recorded. I've been looking through everything that I could find and I can't see it but Rottlund had a different kind of plat map that showed our lot, a lot next to us and the lot next to it. That was a lot, that road at one time and that's what we got to see when we first built. Now I realize the plat was never recorded and it was maybe just a drawing or something but we had no idea Gray Fox Lane was going in until they put it in and our house was in there before that lane was put in. Sharon Peterson: And all of the other neighbors that we've spoken to thought the same thing. In fact, not the contractor but the representative from Rottlund, when we built our house actually said to us, they might put a road in there but the soil behind your house where they're proposing to build those 4 houses or 5 houses need a lot of correction and we don't think it will ever go in... Workman: Was that a...3rd Addition? Krauss: Gray Fox? Well it was there. I'm pretty sure it was there when this lot was platted. It was platted with the right-of-way for a street Board of Adjustment and Appeals July 8, 1991 - Page 3 stubbed in to serve future development. Steve Peterson: From the beginning, the first plat was just an outlot wasn't it with our lot not even being in it. Krauss: Well that's probably true. That's how subdivisions are done. You get the overall plat. Steve Peterson: In our little area maybe we've got about 6 or 7 houses. On that original 1st Addition you know, it's just an outlot. Krauss: And I don't know what they showed you or what you saw but it could well be they pulled up an earlier one. Steve Peterson: I'm sure it's not the City's fault in that case but I just want to tell you that we had no idea. You're talking like we knew this road was going in there. We really didn't. Not until our house was on the ground. Sharon Peterson: And the very next year. Next spring they started putting in the road. That's when we knew the road was going in. I have some pictures of our house also. This is the back of the house and this is the side. Here the proposal said that they'd recommend that we hire an architect to figure out a way to pull the deck...our house but as you can see the... If you put a deck in the back of our house, you're going to cover up the windows. The only other thing we could do maybe was to have major construction done. Take these two windows out and put a door here but in order to get to that deck, we would have to walk through our dining room, up a flight of stairs and through the living room to get to the deck. I don't know about any of you but I don't want to be carrying... That's the other thing. There's absolutely no mention in this report that the City approved this house on this lot with a door on the house. Watson: At this point the house fits on the lot. Sharon Peterson: Okay but there's no other place in our house or on that lot to put a second exit in. Isn't there a rule or something about you have to have two exits in a dwelling? Watson: Do you have one through the garage? Sharon Peterson: Yeah. Here's the front door and the garage door's right there. If this door's inaccessible because of a fire, this door certainly will be too. They're 3 feet apart. Watson: That is two exits? Krauss: I'm not sure. I wouldn't be the one to interpret the Building Code. Steve Peterson: It's a door going into the garage. Board of Adjustment and Appeals July 8, 1991 - Page 4 Watson: I think that's considered a second exit to a home. I think I've asked that question before. Johnson: This Board has never been happy with these smaller developments. Steve Peterson: We've heard this before too but we hope, we're trying to build on a small cul-de-sac. You know our neighbors are behind us. Nobody's here to really object to us tonight. 3ohnson: These aren't your neighbors? Sharon Peterson: No. None of them are here. Watson: You won't be the first person that a developer... That's not uncommon. Sharon Peterson: But don't you think that the City...approve these plans? I mean there's no place to put a deck on this house. Not the way that house is built on that lot. If we had picked a different lot, which I think there was only three lots left in the whole development when we built our house, we could have had walkout. Watson: See if the deck wasn't on the plan, the assumption could have been made that the doors do go outside. Sharon peterson: Yeah but there's a drop like this far. Watson: I understand that but I mean they do go, the door goes, it is actually possible to exit. What can be done .... deck on ground level. How close can we come if they were to put something at ground level? Not a deck...ground level. Sharon Peterson: Well it almost would be a ground level deck. The step down from the kitchen is about this far. Watson: What's the difference? Krauss: Commissioner Watson I think you're referring to the part of the ordinance that allows accessory structures to intrude 5 feet into a side lot line. Side or rear? Side. It doesn't apply to a front. Watson: That is what I was thinking of. Workman: If you look ahead to the next item on our agenda, there's a request for a lot smaller than yours and so...back in here realistically... in a couple of years... It's kind of tough for the City to take the blame yet they take blame for presumably a good builder like Rottlund. Since I've been on the Council we've been trying very hard to make sure that these kind of things do not happen because they're just happening...and that's Rottlund also. Sharon Peterson: Rottlund used to build decks too. That's probably why. Board of Adjustment and Appeals 3uly 8, 1991 - Page 5 Workman: It's in court right now... I drove by there this morning very early and it jumps out. The first thing that comes to mind and a whole array of other variances that we maybe said no to because they jut into the setback and it's a very difficult situation. I empathize with the entire situation because we, these guys more than I have seen it literally a hundred times. That doesn't make it any easier and I just don't know what the solution is other than, and we've gone over and over and over that the wordage of a front yard. I remember the Colby's. We went over front yard because they had literally a pie shaped lot. Now what is the front yard? They even had bi9 trees on the lot and everything else... I really don't know what to say. Watson: Well the easement also is property. I mean it's not like there's this front yard... There's an easement there and. Workman: Well how much room is on the side here? Thls lsa front yard'so we're saying it's got to be 30 feet? Krauss: No, no. It's a PUD so it's...20. Workman: So it's 20 feet from. Watson: From the property line. So there's nothing. You don't even have a couple feel to deal with. There's no way... We can't change the easement. 3ohnson: Someday we might need the easement. Watson: Well it's 8 feet from the street. Steve Peterson: 18. Sharon Peterson: It's 8 feet from the property line. Not 8 feet from the street. So that edge of the porch and deck .would be 18 feet from the street. Steve Peterson: You're going into a cul-de-sac though. It's not like. Watson: But the trails go through. They go out the other side. You see them going to Pleasant View. Steve Peterson: Through the yards? Watson: Yeah. Sharon Peterson: We put a sidewalk down our street, across the street and through somebody's yard... Steve Peterson: This is just like a big cul-de-sac. I don't think you'd ever have that problem, or a trail. Johnson: ...I've seen so much change in this city. Look right down here on Frontier... It's a sidewalk. Board of Adjustment and Appeals 3uly 8, 1991 - Page 6 Watson: I don't know how to solve the problem which happens repeatedly. Z mean how do you deal with developers? Zf you don't tell them. Johnson: ...I guess I'm of the opinion. A1-3aff: Today we are checking the plans in a different manner. Watson: And if there were a door like that she would. Krauss: We would require them to eliminate it. If there was no way to get a deck in, we'd tell them to take the door out. We've been doing that for approximately the last year and a half, two years. Also since we've had these experiences with residential PUD's, the City has shied away from doing that under any circumstances. We're now investigating expanding the PUn's back in residential areas but we have a lot of provisions to cover problems such as this and cut them off before they occur. We're still left with putting our fingers in the dike from all the holes that we have with the existing homes out there and trying to work out something equitable that we can but this is a very tough lot to do that. Watson: We don't have any means...to recommend. Steve Peterson: What's happened in the past? ...some folks first home. It's their first home...wall to wall buildings and didn't allow for a deck. Build the biggest home on the lot and by the time you get the deck on, the builder says hey, consider it done. Sharon Peterson: We asked Rottlund if they would build a deck and they told us no. They didn't fool around with decks. The reason we didn't do this sooner was because we didn't have the money. Watson: That's usually the case. Sharon peterson: ...and had Rottlund do it we would have it done at the time of the house. Workman: I'm in the process of, I sold my old home and I'm going to build a home. I have an advantage because I have the Code book. Watson: Yeah, don't you dare come in for a variance. Workman: I will be building a house here so I have the advantage of you're not ignorant because it's very difficult and you did put your trust. I know what questions to ask the builder and it's very simple for me. It's not. for common people and that's why, I don't mean that as a slight comment or something but that's why 2 years ago and that's why this is an unfriendly job and that's why 2 years ago we said we've got to knock this off. If these continue to trickle in because of what's been done, what control do we have over the builder. The twin homes up on Pontiac, they all complain that they've got basements... Well I guess we can try to follow the builder and not let him build here anymore. There's not a whole lot that we can do. Board of Adjustment and Appeals July 8, 1991 - Page 7 Watson' And Rottlund is a good builder. You see his name all over the place. You'd think that they would know. They're not ignorant, Workman' No. But they're trying to squeeze more house onto a lot, Watson: We allowed them small, lots which gives them the opportunity, Workman: So I guess I don't have a solution for you because this would outweigh just about any precedent I think we would set with that part of it. Watson: And we can't build.,. Workman: I don't think we've ever done 'that, Sharon Peterson' Can I ask a question here about this easement? What if we were to put in a cement patio. I called this morning and I found out that you don't need a permit to build a cement patio. Wouldn't it be harder to do something about these utility easements and drainage easements if we had a cement patio in there? Watson: The only person it would cost any money if you put a cement patio on an easement and they did something is you. They could go right through it. Workman: But as far as the front yard setback and a patio, cement patio, it's not allowed. Sharon Peterson: So we won't be able to do anything with the front yard at all? Johnson: It's considered a front yard on both sides. Watson: Any corner lot. Anything that abuts the street. Johnson: To be honest when I built, I always though I wish Z bought that corner lot...sitting on the Board and seeing ali the problems, I'm always glad I didn't have that corner lot. Watson: Do you want a motion? Johnson: I'll take a motion. Watson: With regret I make a motion to deny the 12 foot front yard set~ack variance for a porch and deck, 180 Fox Hollow Drive. Workman: Second. Carol Watson moved, Tom Workman seconded to deny a 12 foot front yard variance for construction of a porch and deck located at 180 Fox Hollow. All voted in favor and the motion carried unanimously. 3ohnson: You have the right to appeal to the Council~ Board of AdJustment and Appeals July 8, 1991 - Page 8 A 5,727 SQUARE FOOT LOT AREA VARIANCE FOR THE_CONSTRUCTION OF A SINGLE FAMILY RESIDENCE, LOTS 2275-2279, CARVER 8EACH, LESSLEY KAKACH. Al-Jarl: On June 10, 1991 the Board reviewed this application for a variance. 5,7272 square foot lot area variance. Staff's recommendation was denial at the time but the City Attorney recommended that you table action on this request until he prepares a formal Findings of Fact explaining the Board's decision. City Attorney has prepared the formal Findings of Fact. It's in agreement with staff's original report and recommendation. The parcel is still smaller than any other parcel within 500 feet and we are recommending denial of this request. Thank you. Johnson' Roger, do you want to address this? Knutson' ...Findings consistent with your discussion and staff's report. If you have any questions. Johnson' Does the applicant want to make any more statements? Lessley Kakach: Did everyone receive I think my...you might have had an opportunity to have read that I believe. I hope. I guess I just ask the one question that is very pertinent to this matter here and that's I guess addressed to the City Attorney who made mention in the statement here whether or not this is an illegal lot split. Because it boils down to that very specific item. All of the other things were in line as you all know from Minutes of other meetings and frankly I think most of the most recent charges are just things to skirt the issue. Whether or not this is an illegal lot split. I thought it was in the Findings of Fact that it was quite remiss that there wasn't even one mention of that in it. Knutson: We had a number of people...small lots and then try to sell them off into smaller lots creating problems. I think the people who did buy them up originally should have known... Lessley Kakach: Sir, this was done before those ordinances were in effect. Watson: You mean before 19877 Lessley Kakach' Yes. Watson: All of our ordinances have not really changed substantially except maybe to be a little more lenient since 1987. The 5 criteria that we use. Those criteria and even more leniency is the only change that's been in those 5 criteria since 1987. Knutson: The issue about an illegal lot split, as far as I know there's been no illegal lot split. I've never suggested there was. Lessley Kakach: Then I don't know why I'm here tonight because this was approved by staff in the 1988 meeting in July to build or give the variance. It was approved and the only technicality was that this was an illegal lot split. Jo Ann Olsen evidentally got this information and where she got it, she came back to the August 2nd meetin~ and it was denied. Now Board of Adjustment and Appeals Ouly S, 1991 - Page 9 what happened between July 19th and August 2nd is the pertinent question here people and I don't know where it come from and I've been wondering ever since and the tainted words throughout all of these particular times that we've had people up here has always been it's an illegal lot split and everybody's kind of hung their hat on it. I don't know what we did illegally believe me. Knutson: To the best of my knowledge you didn't do anything illegal. I think, and I don't know people can use that term, illegal lot split in a way that I would not use it. If by that... (There was a tape change at this point in the discussion.) Lessley Kakach: ...it came back from 30 Ann Olsen stating this is an illegal lot split and then it was denied on that particular item alone. Otherwise everything flew and now again, excuse me. We're into all kinds of liLtle things such as blind intersection, using the front yards and the driveways for the other homes. My goodness, believe me I have photographs here to back up everything that I'm stating here. As I've said in my brochure, my statement here. So all of this is kind of a maze or what everything to kind of put some more klinkers into this but it still comes back to the one item. Watson: ...looking at it correct but prior to 3o Ann's looklng into it, it was not so much that it was an illegal lot split. I never even thought about that. It was that splitting off the property it became a self created hardship when that split took place. Not that it was illegal or anything but that it created the hardship of a lot was too small to build on. Knutson: To summarize this situation by comparison. If you own the Lot 1, Block 1, ABC Addition and Lot 2 of ABC Addition, each lot was 9,000 square feet and the minimum lot size is 15,000. When you sell off one of those lots to someone else, you can't build on either lot. It's a self created hardship. Here you have a situation where you have a contiguous parcel and we're saying the contiguous parcel can be used as one building site. Therefore there's no hardship. There is a use of the property right now. Mrs. Kakach: But it's not a contiguous lot. Lessley Kakach: It was a lot of record. It has come down in past history in 1959, 1958, 1962. It was passed along by different. The only thing, the other item that you're hanging your hat on is the fact that it was under the ownership of one gentleman for some years. Now you mean to say that you can never own more than one parcel? This has been a separate parcel with it's own identification marks separately for years and it's come down through a history of being separate parcels. How did it get under so that you can say it's a single family lot? How did it ever get to that because it was a lot of record before the 1987 ordinances were in effect. Knutson: If you go out there right now and look at the ground, it's one piece of property. Contiguous piece of ground. Board of Adjustment and (~ppeals July S, 1991 - Page 10 Lessley Kakach: Sir, there's all kinds of, you can stretch that clown any road almost. Knutson: And if you owned two contiguous parcels, you could use them together to satisfy ordinance requirements. Watson: But separately you can't build on them. Lessley Kakach: Pardon me? Watson: Separate, when you split it up the two pieces. Lessley Kakach: I didn't split nothing up. They are two parcels arid always have been. Watson: But when the two parcels were owned by the same person, they were. Lessley Kakach: No. They were still separate parcels. They didn't get joined together. They're separate taxes on each one. They've been with their own PID numbers from way back in I don't know how long. I guess back into the 30's or 40's. Watson: [4ell yeah, all that stuff goes back. Workman: I'm not sure I understand. So they're separate and he couldn't build on then] separately. You're saying they were separate lots right? Lessley Kakach: They're separate parcels sir. Workman: Okay. Well you couldn't build on them separately correct? You couldn't build two houses on those lots. Lessley Kakach: Not unless I have a variance and that's why I'm here to ask 'for a variance. Workman: Right now and I'm saying they're together and it's one piece. Lessley Kakach: But how did they 9et together? I'm asking a question Mr. Workman. How did they get put together? Knutson: They're in common ownership. Watson: They're attached to each other. Mrs. Kakach: ...when Mr. Wegler purchased them, he purchaesd 6 years apart or 7 years apart. First he purchased the lot with the home on it and 6 or 7 years later he purchased this other lot. Now just because he owned both lots when we came along to buy it does not mean that, I mean they were separate. He bought them separately years apart so why, just -because he owned both of them does it make it one big lot? That doesn't make sense. Board of Adjustment and Appeals July 8, 1991 - Page 11 Less!ey Kakach: For instance, let's supposing someone else had come along besides Mr. Wegler and bought those. Now what happens? Knutson: He wouldn't be able to build.. Lessley Kakach: Not without a variance, true. But would it make it contiguous at that point as Mr. Knutson said? 3ohnson: I know what Mr. Knutson is saying. When he joined those two he had a 20,000 some square feet. He had a buildable lot that set the City requirements. The City is 15,000, I realize that but he had, so he was over by 5,000 square foot but he had a house on one lot that met city requirements. When he sold out a piece, I realize what you're saying. It's two different tax titles but then he's selling off a piece that you can't build on. Am I reading you right Roger? Workman: So whether that was split legally or illegally, it doesn't matter. Knutson: If it was split illegally~ that would almost be another reason not to allow it. I agree with you that there's no illegal activity. There's nothing illegal has been done to my knowledge. Lessley Kakach: Well I only bring that up because that was the word that's been used time and again here. Knutson: ...term in a way at least I would not use. As a lawyer that's not something I would say. I don't know what was meant by the use of that term back then. I agree with you, there's nothing illegal. Watson: I think perhaps it could have been just used. to communicate that unbuildable piece of property split off and someone actually sold somebody a piece of property you couldn't build on which you could say was illegal or not very nice. Knutson: Yeah, that's probably the sense that they used it in. Watson: Yeah, I suspect that. Johnson: The way I look at it is he had...met all city requirements. It was even over 5,000 square feet over. The minute you sell off a chunk of that it makes neither one of them a size... The other person can't build on it. Lessley Kakach: But we didn't sell off a piece of it sir. He sold off a parcel. That parcel beiT]g separate. It has nothing to do with the other particular parcel so it isn't like selling off a piece like taking one lot which is 20 feet by 100 and selling it off. It has nothing to do with that at all. It's strictly a separate parcel. Mrs. Kakach: It was approved' in July and then because they said it was an illegal split in August, they wouldn't allow the variance. The variance was approved in July. Board of Adjustment and Appeals July 8, 1991 - Page 12 Johnson: The Board never did approve the variance because I was on the Board. So was Carol. Mrs. Kakach: The staff. Watson: The staff said we're going to have to stop and take a look at how this all occurred. Johnson: The approval never occurred by the Board. Staff can make recommendations to us. We can override the staff anytime. In a sense. I'm not saying we're going... I'm just saying, we don't necessarily have to agree with staff. Mrs. Kakach: Why couldn't there be a house on there? It meets all the setbacks. There's nothing wrong with it. Other properties have been given variances. If they have had a lot of problems, trees, the conservation of the land. They've had a lot of problems. They have a lot less property than we do. 8,000 square foot and we have a lot more than that and why were they allowed and why can't we? There is room for a home on there meeting all the setbacks. It's a beautiful lot and there's no reason that we shouldn't be able to build on it. This is what we don't understand. Why we can't build on this lot. Watson: Does the motion that you have in here. Knutson: If you want to adopt the document I've prepared, you can move to adopt the Findings of Fact as presented. Watson: So moved. I like that. Wot kman: Second. Watson moved, Workman seconded that the Board of Adjustments and Appeals adopt the Findings of Fact prepared by the City Attorney regarding the 5,727 square foot lot area variance for the construction of a single family residence on Lots 2275-2279 in Carver Beach. All voted in favor and the motion carried unanimously. Johnson: You have the right to appeal this to the City Council. Lessley Kakach: When can I do that sir? Johnson: You'll have to talk to Sharmin. She handles that. Watson moved, Workman seconded to close the public hearing. All voted in favor and the motion carried. /he public hearing was closed. APPROVAL OF MINUTES: Watson moved, Workman seconded to approve the Minutes of Board of Adjustments and Appeals meeting dated May 20, -1991 and June 1991 as presented. All voted in favor and the motion carried. Board o'F Adjustment and Appeals July 8, 1991 - Page 13 Watson moved, [4orkman seconded to adjourn the meeting. All voted in favor and the motion carried. The meeting was adjourned at 7:30 Submitted by Paul Krauss Planning Director Prepared by Nann Opheim