1993 01 25CHANHASSEN BOARD OF AOJUSll~ENTS
AND APPEALS
REGULAR MEETING
JANUARY 25, 1993
Chairman Johnson called the meeting to order.
MEMBERS PRESENT: Carol Watson, Willard Johnson and Don Chmiel
STAFF PR~SEHT= Paul Krauss,iPlanning Director; Sharmin Al-Jarl,
Planner I; and Roger Knutson, City Attorney
FRONT YARD SETBACK VARIANCE A~4D WEI].~D E4ETB~K V~iR~P~%CE FOR TI~
CONSTRUCTION OF iA Sit,lEE FAMILY R~SIDENCE AT 6921 ~ DRIVE, CARVER
BEACH, S~NNON TERRY.
Sharmin Al-Jarl: On January 11th you reviewed this application. You
weren't satisfied with the types of soils that this lot had. You wanted
to deny this variance and you requested that staff prepare Findings of
Fact. The City Attorney's office has prepared those Findings of Facts
for you and we're still recommending that you approve this application.
If you decide to deny it, then we suggest that you send it to the City
Council for review and consideration of purchasing this property. Thank
you.
Knutson: If I could just add another comment. If you decide to approve
the variance, this will still go to the City Council for considering
acquisition. That's on the Council's agenda. So they will act on that
whether you approve the variance or not so I would just, not concern
yourself on the Board of Adjustments. Whether the City is going to
purchase it or not. Just act on the variance.
Russell Norum: I'm Russel Norum. II'm an attorney from Wayzata
representing the owner of the property, Marge Rossing. I'm not sure, am
I speaking to the Board of Adjustments?
Johnson: You're speaking to the Board of Adjustments.
Russell Norum: Okay, and not the City Council. Even thought your record
from the past shows that you denied this variance. You really didn't.
You continued it until tonight. There have been no granting or denying?
Johnson: That's correct.
Russell Norum: I don't think you saw previous engineering sub-surface
report on this property and it was done. Marge had this done in ?89 when
she was selling at that time .... buildable piece of property. It was
felt that it can be constructed on it.
Watson: We did receive a copy.
Russell Norum: Oh you did? Alright.
Watson: It's in this week's packet.
Board of Adjustments and Appeals
3anuary 25, 1993 - Page 2
Russell Norum: Okay, I wasn't aware of that. I'd first like to address
these Findings of Facts as compared to what was found by the staff
report. The Findings of Fact, in 9 it says the applicant has failed to
demonstrate that it's feasible to construct a single family home due to
existing soil conditions. Certainly this engineering report just
absolutely refutes that. The engineers can build a residential structure
there. I disagree with that Finding. Stating that the subject property
may be put to reasonable use such as recreation, picnicing, hiking and
camping, I think is not a good Finding for any Board to make. It's
residential property. It is buildable. Number 12, it mentions
conditions upon which this application is based. Protect the wetlands
that's applicable to other properties. The staff report states i'n there,
page 3(b), that it's not like other properties. That this condition is
unique to this. It says, the conditions upon which this petition for a
variance is based are not generally applicable to other properties within
the same zoning classification outside of the immediate area.
certainly the Findings have to either be consistent with that or you have
to make new Findings to show that they're applicable all over the place.
13, the Findings are showing that the purpose of the variance is to
increase the value of the subject property. The staff on page 4(c) says,
this does not appear to be the case. The applicant is attempting to
utilize the parcel for a single family residential use that it was
created for. So ! disagree with that Finding isn't based on what the
staff has found.
Chmiel: Mr. Chair, if I could just interrupt. There are other things
that are involved in this variance and it is setback requirements as
well. And as far as wetland is concerned too. So I just wanted to point
that out.
Russell Norum: Yeah. But I wanted to, if this type of Findings was
signed and approved by the Council, it's certainly subject to review
afterwards. Yeah, the variance certainly, she has to show practical
difficulties with the piece of property. She certainly can show that.
Split these lots, as you know back in '84 I think it was, the two were
split. This City said it was a buildable lot at the time. She relied on
that. She's been charged taxes. I don't know what the status is on that
but she's been charged taxes and expected to sell it. She certainly
wants this variance. Of course if the City would buy it, that's her only
interest is selling this piece of property. Whether it's sold for
residential or not, to the owner of the property is not important. I
would imagine to the potential buyer that it's very important. So I did
want to address that. I did want to know who you were. Whether this was
a Council meeting or the Board and I would also want to make sure that
the owner of the property, Marge Rossing got service on this report or if
you'd tell me where we could get a report. For appeal purposes if that
would be necessary. So that's all I wanted to say. Thank you.
3ohnson: Anybody else wish to address this?
Marge Rossing: I'm Marge Rossing. Owner of that property and before
I put that property on the market I came here to the City Planner and
said, am I going to be able to sell this property and are the people
going to be able to get a permit? They said yes because the City had
Board of AdJustments and Appeals
Sanuary 25, ;~993 - Page 3
split the property and left me with a buildable site. $o I think I did
everything I should have done and now all of a sudden it's being turned
down and I don't like that very well.
3ohnson: Thank you.
Krauss: A couple things. Actually two things. Ne received the soils
report. Ne heard about a soils report but we received it after the
Findings of Fact were drafted. Ne generally agree with the conclusions
of the soils report but note that it was done for a different house on a
slightly different location and is not directly transferable to this
particular home. I've reviewed it. Ns'ye reviewed it with our staff. Ne
think the Findings will likely be the same.I' The clay soils really are
not that far down but it was a result of I think one boring and you know
you can't take it as gospel. It's pretty good indication but it's not
gospel. In terms of inconsistency between the staff report and the
Findings of Fact, there is an inconsistency but we make a recommendation
to you. You make the Findings you want to make and that is what the
official record will show. When we carry forward something to you, it is
a recommendation but that's all it is.
3ohnson: I have a suggestion. ! want to see what the rest of the Board
feels. I guess if they're' going deciding to grant the variance, I would
have to have a 20 foot setback from the street. The City requires 30
foot. And a l0 foot sideyard setback that pushes.
A1-3aff: You could eliminate the front yard setback by vacating the
public right-of-way. That is an option.
3ohnson: I don't feel we should vacate the city street. I don't know
what the City intends to do 5 years down the line. I realize it goes out
in the middle of nowhere but I don't know how the Council feels or City
staff. At the present time I wouldn't care to vacate the city street. I
don't see even building on top of the city street because I don't know
what the city has planned 5 years down the line or 3 years down the line.
If this variance was to go, turn around and change and be granted, I
would like to see, minimum of 20 feet from city setback. I realize
you're pushing it out into the middle of the swamp and that terminology
probably isn't right but you're pushing out towards the wetland and I
won't grant a zero. I will not go along with a zero setback.
Russell Norum: Is that 20 feet from the line and 20 feet watermain?
3ohnson: 20 feet from the line. I won't go along with a zero setback.
Krauss: I'm sorry. We have not been asked to comment per se on a
vacation. There's no vacation pending but we did look at it. If a
street vacation were to come up, it would come up before the City
Council. Ne did look at it. There really is no public purpose for the "
street to be extended. It runs into the wetland we'r9 trying to protect.
There is a watermain in there but that could be protected by an easement
so a vacation is a thing that's feasible if the Council wanted to go
through with it. But right now there is no application pending for that.
Board of Adjustments and Appeals
,.Yanuary 25, 1993 - Page 4
Watson: Right so, in lieu of the fact that there is no application,
since they say the lot is buildable and we know the soils are probably
about as good one place as another, we might as well push it back and at
least adhere to some setback requirements for it. I mean if in fact the
soil borings are accurate, and my theory on the wetland setback is
unfortunately there really is no wetland setback here. The whole thing
is wetland. So we're getting a few feet closer to it. I want a front
yard setback on that property. If in fact the decision were to be to
approve it. Or redesign the house or I mean I don't know what.
Shannon Terry: ...based on that comment, basically if the whole property
would be wetland. First of all it wouldn't be buildable. Second of all,
the reason the survey was done to determine the point of the edge of the
wetland and that's determined on the elevation of the water table. Not
on the front elevation of the property at all so really that 929 foot
level is the edge of the wetland. It's actually from visible, it's
actually more farther forward than where the wetland appears to be but if
you go by the proper way of doing it, apparently it's actually by the
elevation of the water table. So the edge of the wetland is actually a
physical line on the property that's predetermined. Going in farther
back would erase.
Watson: I understand what you're saying but from my perspective, it's
wet enough in here so coming back another 20 feet really doesn't bother
me so much anymore because I feel like we're building it in the wetland
anyway.
Shannon Terry: Oh, I see what you're saying. Okay.
Watson: So I'd rather get it back off the front of the property and I'd
like this piece of property to adhere to some standard. And we have to
pick something.
3ohnson: Yeah. Ne have to pick a guide. I realize city ordinance calls
for 30 feet but I could, as I read in the report here, staff took a
neighborhood 500 feet and there are 20 foot setbacks so I could go along
with a 20 foot setback, but nothing less than that. From the edge of
city property.
Shannon Terry: One concern that we have for the property as recommended
by the soil testing, it would have to be a walkout. Because of the
water table you have to maintain a 4 foot above the water table line.
Any variation on moving the house back would require us being closer to
the wetland and then you have to have some sort of deck to get out of
that upper level because it would be a walkout. Virtually that'd be an
unuseable door area back there. Did I explain myself correctly?
Watson: Yeah. Well you know, it may take some doing to get a house that
actually works here.
Roger Knutson: Couldn't you build a slab on grade there?
Krauss: Yeah, you've got to raise the slab though so it maintains that
elevation.
Board of Adjustments and AppeaIs
January 25, 1993 - Page $
Roger Knutson: PauI, couId they build a.house if they pushed it'back 20
feet?
Krauss: TheoreticaiIy so. There's not much slope there but you'll have
to build it up wherever you go.
Watson: Yeah, see I don't think the soils there are going to be improved
by going, or that we're actually going to be any more detrimental in
pushing it back 20 feet. And at least then we would be adhering to one
standard that's predominant in that neighborhood. By having it back off
the right-of-way.
Johnson: Because I hear...telling us that this is a buildable lot...and
then I would go along with Carol. We need some sort of, adhere to some
city setbacks. Whether 'we're fudging l0 feet, I don't have any problem
with that but no zero setback.
Chmiel: I would like to see something in addition to the recommendations
as we have 1 thru 9 by adding one more. That the City, in the event,
after all the findings were as indicated, regarding the soil borings be
held harmless in this and I'd like that also part of it.
Watson: Oh, and I thought of something else. You know when we put these
variances, how are they attached to the property?
Roger Knutson: They're recorded against the land.
Watson: Okay. $o the second and third buyer of this piece of property
will also be aware of what it is?
Roger Knutson: It's there forever.
Watson: Good. So just in case. We want to be sure that people.down the
line realize that, because if you sold it right now for instance in
January, it's not wet. You can walk in there so it could be a little
misleading at this point.
3ohnson: Roger, do you do the recording?
Roger Knutson: Yes.
3ohnson: Can it be put in there that the City is not liable that, excuse
the expression, hashed out at the Board and maybe at City Council level,
that any of this is, we're not liable. We're telling you this is the way
we feel and.
Chmiel: Yeah, I think we should just put that in as an additional
recommendation.
Watson: My first choice is that the city buy it.
Chmiel: We have to see what funding is available.
Watson: That would certainly be my.
Board of AdJustments and Appeals
January 25, 1993 - Page 6
3ohnson: If they feel it's buildable and it shows that you can build on
it...
Krauss: Trying to forecast how this thing is going to move forward. We
kind of pre-emptively scheduled a hearing on it at the City Council,
should it be appealed to the City Council so it doesn't have to go
another 2 weeks. We also put another item on the Council where we looked
at what kind of utility this parcel would have as far as the surface
water program goes. And it does have some. And whether or not the city
should consider purchasing it. $o that is an item that's scheduled for
later tonight.
Watson: Yeah. I think that obviously would be best case.
Chmiel: Right.
Watson: But I also understand the budget. The fact that we are not
going to be in a position to go around buying up pieces of property here
and there. I think this is definitely one.
3ohnson: Any more suggestions?
Chmiel: No. I agree with that setback portion of it discussed. And to
have that number 10 condition.
Watson: Yeah. And that was that the city be held harmless.
Chmiel: Hold harmless clause.
3ohnson: If it does go through, I hope Roger gets this.
Roger Knutson: I'll get it.
Watson: Okay, now in looking at it in it's present location, what do we
have for a side setback?
3ohnson: Sharmin, on this plot that you gave us of the.
Watson: On the house.
3ohnson: Facing Woodland. Woodland is a street so that would be 20 feet
back correct? And 10 foot on the sideyward.
Al-Jarl: Correct.
Watson: Now where are all these streets?
Al-Jaff: Okay, you would need a 20 foot setback. That's the 20 foot
setback from the property line. So they will be 16 feet from the wetland
Paul?
Krauss: Well, if you follow the recommendation that we made that the 20
foot deck be reduced to 10 foot, you're moving the house back. If you
move the house back 20 feet, you wind up with a 26 foot setback the way
Board of Adjustments and Appeals
3anuary 25, 1993 - Page 7
that's situated right now. And if the deck is allowed to intrude 10 foot
further, the deck would be 16 foot from the edge of the wetland.
A1-Jaff: And the ordinance requires 7...
Shannon Terry: The only concern I have about moving it back. Again, I.'m
not sure how the property slopes...concern is because it has to be.a
walkout. We start moving...that slope may start leveling out and then
have to be close to a full basement and if that meets that requirement
either so I'm not sure...
Watson: Well unfortunately this may be one of those pieces of property
where designing the house after the.
Chmiel: Well I don't think we should be in the business of designing a
house.
Watson: No. I'm just trying to see how wide that house is at that one
end and I can't even figure it out. How wide is...
Shannon Terry: From the garage in the back of the house?
Watson: Yes.
Shannon Terry: 46.
Watson: I agree with you. We don't design houses but in this instance,
when we push it back 20 feet, we're already looking at the house, we know
how close we're going to be to the wetland. That leaves us very little
latitude in that area. Kind of predetermines that rear setback from the
wetland.
3ohnson: But they've got to have a front setback.
Watson: Oh yeah.
Roger Knutson: The only issue you really have to decide is, they're only
requesting two variances so you...Okay, what are those variances. What
I'm hearing you say the front yard setback variance will be 10 feet. To
allow a 20 foot setback. And the setback from the edge of the wetland
will be 16 feet, and they've got to fit it in there.
Watson: Okay.
3ohnson: Roger should make the motion. Thank you Roger.
Watson: Okay, I'll make a motion. How do i stick in, we don't have to
worry about the buying of the land because that's already on Council
agenda and that's done?
Chmiel: Yeah.
Watson: So all we have to do is approve a 10 foot front yard setback and
a 16 foot wetland setback variance for the property at 6921 Yuma Drive.
Board of Adjustments and AppeaIs
January 25, 1993 - Page 8
Roger Knutson: It's 20 foot, you're approving a setback 20 feet from the
street which is a 10 foot deviation.
Watson: Yeah, the lO foot variance. Okay.
Chmiel: With the recommendations of items 1 thru 10.
Watson: i thru 10, having added number 10.
Chmiel: Number 10. The City in the event, after all findings whereas
indicated, area soil borings, be held harmless.
Johnson: Do you have that Sharmin2
Watson: And in this Type III, number 4. Type III erosion control be
maintained during the construction season along the edge of the wetland.
That Type III erosion control is maintained until the ground is
revegetated. Otherwise the house is constructed. The dirt's still there
and it's all washing into the wetland anyway. So until it's all sodded
or covered in some manner.
Chmiel: I'll second it.
Johnson: You'll cover it at the Council. We don't have to make any more
adjustments?
Chmiel: No. The other portion is...
Watson moved, Chmiel seconded that the Board of AdJustments and Appeals
approve Variance #92-13 for a 10 foot front yard setback and a 16 foot
wetland setback with the roll.lng conditions:
1. The applicant maintain a 15 foot setback from the center of the
watermain located in Yuma Drive.
2. The applicant shall reduce the depth of the deck to 10 feet to
minimize impact on the wetland.
3. The applicant shall submit a tree preservation plan prior to issuance
of a building permit.
4. Type III erosion control be maintained during construction, and until
the ground is revegetated, along the edge of the wetland.
5. No additional construction is permitted without a variance
application.
6. The applicant shall enter into an agreement with the City providing
for private construction and maintenance of the driveway in public
right-of-way.
7. The applicant shall retain a qualified soils engineer to evaluate the
site for the proposed structure.
Board of Adjustments and Appeals
3anuary 25, 1993 - Page 9
8. The applicant shall retain a structural engineer to design the
foundation if soil conditions are Such that a conventional foundatoin
would be deemed inadequate.
9. A drainage plan shall be submitted for approval by the city prior to
building permit issuance.
The City in the event, after all findings whereas indicated, area
soil borings, be held harmless.
Ail voted in favor and the motion carried.
Roger Knutson: The variance will no% go to the Council. It's been
approved but the question of acquisition will go to the Council later
this evening. Following this meeting.
Krauss: Roger, it is possible for somebody to'appeal the variance.
Roger Knutson: If you don't like the conditions of the variance, you can
ask the Council.
Krauss: Or if there's somebody aggrieved by it, they can. So I'd ask
you to hang around.
10.
APPROVAL OF MINUTES:
Chmiel moved, 3ohnson seconded to approve the Minutes of the Board of
Adjustments and Appeals dated January 11, 1993 as presented. Ali voted
in favor and the motion carried.
Watson moved, Johnson seconded to close the public hearing. All voted in
favor and the motion carried. The public hearing was closed.
Natson moved, Johnson seconded to adjourn the meeting. All voted in
favor and the motion carried. The meeting ~as adjourned at 7:30 p.m.
Submitted by Paul Krauss
Planning Director
Prepared by Nann Opheim.-