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PC Minutes 12-2-08 CHANHASSEN PLANNING COMMISSION REGULAR MEETING DECEMBER 2, 2008 Chairman Papke called the meeting to order at 7:00 p.m. MEMBERS PRESENT: Kurt Papke, Kevin Dillon, Kathleen Thomas, Mark Undestad, Denny Laufenburger, and Dan Keefe MEMBERS ABSENT: Debbie Larson STAFF PRESENT: Sharmeen Al-Jaff, Senior Planner; Angie Auseth, Planner; Alyson Fauske, Assistant City Engineer; and Terry Jeffery, Water Resources Coordinator PUBLIC HEARING: AMBROSEN/SENN VARIANCE: REQUEST FOR A HARD SURFACE COVERAGE VARIANCE ON PROPERTY ZONED SINGLE-FAMILY RESIDENTIAL (RSF) LOCATED AT 3830 MAPLE SHORES DRIVE (LOT 7, BLOCK 1, MAPLE RIDGE). APPLICANT: SAWHORSE DESIGNERS AND BUILDERS. OWNERS: MARK AMBROSEN AND ANN SENN, PLANNING CASE 08-24. Angie Auseth presented the staff report on this item. Papke: Kevin, we’ll start with you. Dillon: Were the other driveways that, that 6700 and 6760, where are they, those houses, those homes in relation to the 25% coverage? Are they right up against it? Auseth: For this survey we were mainly looking at the driveways so we did not do a full survey of each property. Dillon: Okay, because I’m kind of, just jumping way ahead here. If you grant a variance for this one to make the turn around and those other ones don’t have turn arounds, will we start down a slipper slope of granting more variances for turn arounds, but maybe they’re well below the 25%. It’s not a big deal. I don’t know so. Al-Jaff: I am familiar with those sites and they do meet the code requirements. They do not exceed the 25%. Dillon: And do they, so is everyone in this place backing out of their driveways? I mean all the homeowners around here. Is that part of the, or? Al-Jaff: In the specific subdivision? Dillon: It would look that way. Well not everybody but. Planning Commission Meeting - December 2, 2008 Al-Jaff: Some of them do have a turn around. Based upon the lot area, and some of them don’t, but it’s not a busy street as such they are able to get out of their driveways. Dillon: That’s all I have right now… Thomas: I don’t have any questions of staff. Laufenburger: I don’t either. Papke: Okay. If there’s an applicant here this evening, would you please step up to the podium. State your name and address for the record and tell us what you have to say about your request. Fred Bruning: Well good evening council members. Thanks for taking the time to hear me. I’m Fred Bruning. I’m with Sawhorse Designers and Builders. I’m here on behalf of the owners, Mark Ambrosen and Ann Senn. I have a brief statement to read, but before that I’d like to you know thank Angie for her time. She’s, we may not have always agreed but she’s always been courteous and helpful so I appreciate that. I do have additional copies of this, if I could. Staff has suggested that the only reasonable use of a property in R-1 zoning is a single family home with a 2 car garage. I submit that this view is not current thinking of land use. The majority of properties within 500 feet of this property are much more than that. 10 out of 13 houses on Maple Shores Drive have 3 car garages or more. A clear majority. In addition an examination of the aerial photos on the Carver County web site shows that 20 of the 32 residences in this area appear to be over the 25% hard cover restriction. Some extremely over. These are pre-existing standards for the neighborhood. In comparison to a majority of homes in the area, Mark Ambrosen and Ann Senn are not asking for an unreasonable use of their property. Because of the shape and topography of their lot my clients need to use precious hard cover for an atypically long driveway to access their home and a retaining wall, patio drain system to protect it. Three properties to the south have longer driveways than my clients, and each has a turn about. However they are on near level lots. Two have flag lot hard exemptions to the hard cover requirement. The remaining is on a much larger property. To the east are the only two lots within 500 feet that have an elevation change greater than this property. However it is only slightly greater and over a longer distance. This property is unique in that it has both these elements combined on a parcel that is substantially smaller than any of them. The lot size combined with the shape and topography is the hardship. It is not self created. The willingness to accept an undue hardship does not negate the hardship or create it. The granting of this variance would not be detrimental to the public welfare or injurious to other land or improvements in the neighborhood in which this parcel is located. Mark and Ann have incurred both the monetary and more importantly the hard cover expense to mitigate runoff erosion problems caused by topography of their lot. Without this allocation of protective hard cover my clients would be able to construct their addition and meet the hard surface coverage limitation while maintaining their driveway and turn about. They should not be penalized for efforts to comply with the spirit of the hard cover code simply because they do not meet the letter of that code. However, a denial of the variance could endanger public safety. While staff’s Findings of Fact does not agree, we feel that backing a vehicle down a narrow wooded sloped driveway in excess of 130 feet could be a danger to public safety. I ask the Planning Commission to consider the following actions. Number one. Grant the variance as requested. Number two. Grant an 2 Planning Commission Meeting - December 2, 2008 exemption to the hard cover calculation for the retaining wall, patio drain system in the rear of the home. The City currently recognizes similar exemptions for swimming pools and driveways on flag lots, etc. Number three. Request the City Council consider recognizing other means of mitigating hard cover. I have a list of these submitted on the original narrative in the file. Number four. Modify the recently added condition requiring my clients to use an as-built survey signed by a registered land surveyor to ensure that the lot complies with the 25% hard surface coverage. We request that the variance, we request if the variance is denied, Mark and Ann should be asked to maintain their existing hard cover condition currently an estimated 25.7%. The current excess hard cover is a pre-existing condition that appears prevalent in the area. We appreciate your considerations of this variance and I’ll make an attempt to answer any questions you may have. Undestad: I don’t have any right now. Keefe: You know you’ve referenced that changes in grade and you know the thinking, I mean is that the change in grade at the front of the house towards the lake side? Fred Bruning: Yeah, at the lake side. I mean front to back, from the lake to the back corner is 46 feet on this lot. Most of it happens, over 30 feet happens right outside their back door. Keefe: Okay. And the, so. Fred Bruning: The lot, right off the lake they have a very flat area where that fire pit and that is down there. I mean it’s 70 feet that’s relatively level and then in the next, you know 15 feet, it goes up 30 feet. Keefe: And the impact of that is what? Fred Bruning: Well in the past they’ve had, and in the original narrative I explained this. When they originally bought the home they had nothing back there and the soils, I mean they’re highly erosive soils. I mean very fine silts and sands and that hill had actually eroded within 6 feet of their foundation. I mean they needed to do something to protect their home. Keefe: And so what you’re saying is that, because they’ve had to add the drainage system and retaining wall, that has essentially taken up some of the allowed hard surface coverage? Fred Bruning: Correct. That’s one of the issues that does. That the topography requires them to do that. Papke: If I can just step in at this point. Keefe: Yeah. Papke: Excuse me Dan but just since you’re on that topic. We just had a case last week where the retaining walls are not being counted. Now I don’t see them in the calculations here. Could 3 Planning Commission Meeting - December 2, 2008 city staff clarify if the retaining walls are being taken into account or how is that calculation being done? Auseth: The retaining walls should not be included in the hard cover. Fred Bruning: And they are not. Papke: Okay. So we’re cool there. So what are you really asking for? Fred Bruning: Well the back of their home they had, it was an engineered system. Because of the, I mean it’s 30 feet of grade. It was engineered that, they put hard surface right up to these retaining walls and actually drained that water through the wall and get it to that lower level. To have the soils that are open, and right now they have pavers but the amount of water that’s gone through those pavers is still eroding the soil and they have to make some modifications to change that, but to have that open gives you, when the soils become saturated, you get a 30 foot column of water. Hydrostatic pressure in 30 feet, I mean it’s tons per square foot on that wall and so what was determined to do is actually protect it. You know like the top of the mountain, when you see mountains erode. Put a hard surface on top. Take that water past the erosion point. Past that steep grade so it wouldn’t carry the fine silts and sand down the hill. Keefe: So is that part of your scope of work to do that? To put it additional in. Fred Bruning: No. They already had that engineered and installed to protect their home. Mark Ambrosen: That was done fairly soon after we bought it because, that’s probably been in over 10 years. When we first moved in the walkout went out about 6 feet and then it was grass and then it just dropped down, there was nothing, so we were getting erosion there. Keefe: But am I clear? They’re not getting, it’s not being counted as a part of the. Fred Bruning: Yes. Mark Ambrosen: The 723 square feet. Fred Bruning: The patio…part of that system is being counted. Dillon: And what’s it made out of? Fred Bruning: It’s pavers. Mark Ambrosen: At the top right hand corner. Fred Bruning: That’s the picture you have in the corner. It goes out an average of, I mean it’s the only back yard they have outside their door. It goes in and out but the average is 12 feet. The in and out was necessary because the height of the wall, you know they have a straight wall. Some articulation. 4 to 5 is the wall. 4 Planning Commission Meeting - December 2, 2008 Laufenburger: I do have a question Mr. Chair. This may be for staff. Is it correct for me to understand that the homeowner will be able to retain their existing coverage, which is currently 25.7%. So .7% over acceptable. Will they be able to retain that if this is fully denied? Because that’s a request that Mr. Bruning is making in his, yeah in his statement. Number 4. Do you understand the question? Al-Jaff: The applicant is requesting that they be allowed to retain it. However that is a non- conforming situation. It’s a continuing non-conformity because when the site was developed, that ordinance was in place. Laufenburger: Okay, so they’re .7% over limit and it will be their responsibility to bring that back within limit? Al-Jaff: Correct. Laufenburger: Okay. Then one other question for, I think this may be for you Mr. Bruning. In the staff report it reflects that there is 1,039 square feet of proposed reductions, including dog kennel, changing pea rock, etc. You’re familiar with those recommendations? Fred Bruning: Correct. Laufenburger: Okay. And if you do those then, then the compliance will be within the 25%. So you’re familiar with those? Fred Bruning: I am familiar with those. I actually proposed them. Laufenburger: Your idea? Fred Bruning: Correct. Mark and Ann are, and I reiterate. They’re willing to suffer this hardship. The hardship isn’t, you know isn’t the shape of the drive. I mean having a narrow driveway and backing down the driveway. I mean the hardship is the lot. The size of the lot. The topography of the lot. The shape that requires a long driveway. If they didn’t have those factors, it would be a non-issue. These are factors other properties don’t have and are able to do similar things that Mark and Ann are asking to do. But because, the uniqueness of this lot and the combined factors on the small size creates the need for these things. Creates the need for a long driveway. Creates the need for this retaining wall patio system. That is the hardship. And they’re willing to suffer that hardship to have an addition. I’m just asking you guys not to make them suffer it you know. Laufenburger: They like living there, don’t they? Fred Bruning: Yeah. Yeah they do. Laufenburger: That’s it Mr. Chairman. 5 Planning Commission Meeting - December 2, 2008 Papke: Kathleen. Thomas: Not right now. Papke: Kevin. Dillon: So in your letter here, you know the Carver County web site shows that 20 of 32 residences are over the 25% hard cover. Fred Bruning: Yeah, one three houses down looks like it’s about 55-60% hard cover. Dillon: Well looks or is? Fred Bruning: Well, I don’t know, do you have it up? On the south side, go down 3 houses. Right there. If you look at the one that’s right below the E in Maple. They have a 4 car garage. A tuck under in back. You know you do the calculation. You can’t tell for sure something has plastic under it but just looking at the hard concrete surfaces, that’s over 50%. Dillon: So question for the staff. How do we kind of get in this spot? I mean I can’t tell if that’s 50% or not from here but if, you know we knew that their lot’s 25.7% today and that’s over the 25%. It’s kind of a newer home. How did that get by way back in the day? Auseth: Unfortunately without somebody coming in and requesting a building permit or a permit to do this, it’s difficult for staff to keep tabs on all of those, which again is why the zoning permit was put into place. So that patios, sheds under 120 square feet, small retaining walls, those have to come in for a permit now so that we can avoid these situations in the future. Dillon: Okay. So then since this is so close to the lake and the hard surface variance is being asked for, have any of the local water authorities or lake authorities weighed in on this? Auseth: We sent out referrals for, to the DNR and the watershed and have not heard back from them. Dillon: I know we’ve seen responses from them in the past so when they do not respond, does that mean they don’t care or they just haven’t gotten around to it yet? Jeffery: Chairman Papke, Commissioner Dillon. I have spoken with Michael Wyatt of the Watershed District. The way the Watershed District rules are set up, they do not oversee the shoreland regulations. The City has that authority granted to them by the commissioner of the DNR. While they generally not favor increasing the hard cover, they are not in a position to regulate that increase. They can only regulate storm water treatment features on that, or obvious erosion control issues that would exist on the property. Dillon: Okay. And then just to kind of build on the question that Denny asked. So if we’ve got some proposed reductions that the applicant has put forth, and it would get everything into compliance, kind of like why are we here? I mean you know if the applicant’s putting them in 6 Planning Commission Meeting - December 2, 2008 there and they get us under the 25%. I know maybe it’s not the best solution that the homeowner would like but it seems to me to be a pretty reasonable compromise. Fred Bruning: Does the whole, and I can read a section of the variance code. The whole idea of variances is to allow people to have a reasonable use that’s comparable to what their neighbors have. To recognize conditions that all lots aren’t equal. That sometimes you have, and it specifically names lot topography, the shape and size. Usually when I go through the variance process I have one of those factors. This property actually has all three and it’s just, the variance is a means to allow them a reasonable use that other properties have. Their lot demands a long driveway. Their lot demands some mitigation to the elevation, topography change in the back. Take for example the ones towards the mouth of Maple Shores Drive. They don’t need any of those considerations. Their lots are wide enough that their house can be close enough to the street to have a short driveway. They have level lots. They don’t need huge retaining walls, mitigation to runoff and erosion. This is the whole point of recognizing unusual conditions of lots. Something I’d like to add. In the code itself, division 3 in variances. Section 20-58. Line item 1. A third of the way down. It recognizes that reasonable use includes a use made by the majority of the comparable properties within 500 feet. In my words here, and looking at the aerial photos, that’s all we’re asking for is a use that the majority of the homeowners within 500 feet of this property enjoy. Dillon: Okay. So then, and this is again maybe directed towards the staff but what is the staff’s position about getting into alignment with the 25.7 down to the 25? What actions would, if we deny all of this stuff tonight and kind of wash our hands of it as the planning commission, what then? What are the next steps and how is that going to impact the homeowner? Auseth: Well one of the conditions for the denial is that an as-built survey be done. But one of the reasons is because staff worked with the applicant to approve the building permit for those additions prior to this evening’s meeting so I’m assuming that those additions will still be constructed. Fred Bruning: They’re underway. Auseth: And so if the variance is denied, and staff talked with the applicant at length about this that the as-built survey would be required either way to make sure that the site complies with whatever the Planning Commission decides on the variance. Dillon: Those are all the questions I have. Papke: Just one question from me. The 25.7 that’s there now that the applicant is asking for, was there any variance granted to achieve that? So that in this particular case, if I understand things correctly, the applicant exceeded the 25% accidentally, or but. So you’re asking for something that in your statement here you’re asking to retain that. However there was not granting of a variance to achieve that in the first place. Just so we understand that. Fred Bruning: No. We’re just asking to recognize a pre-existing condition that the vast majority of people around them. 7 Planning Commission Meeting - December 2, 2008 Papke: Pre-existing that was… Fred Bruning: 25.7. Papke: …city code by the applicant. Fred Bruning: Which the majority of property owners within 500 feet also are in violation of. Papke: For which we have no evidence other than your visual inspection of these aerial photographs. Just so we understand. You know the Planning Commission has to make decisions on the data we have in front of us. The data that’s on file in the city records and so on. You know we can’t make decisions on the basis of your visual observation of aerial photographs. Fred Bruning: I understand. My visual observation may be biased. You could have staff look at the same photos. They’re, I mean you actually have, I would suspect that this looks very similar. I suspect this is from the same web site. They did the same calculation when they required us to do an as-built. To do a survey of the property. The survey requirement and reducing the hard cover to 25%, that was very late in the process. You know going through this whole process, you know the client’s doing the addition. The applications and everything. It was a very late thing to add. You know I guess I just ask, I ask you to think about it and consider the reason of it you know. Putting them in the situation to enforce their hard cover. I mean some of these, I mean look at some of these lots. I mean if you guys are going to take the approach of pulling them into compliance, when you have neighbors like this that are, I mean you don’t even have to do a survey to look at some of these and you know, know that they’re way over 25%. Papke: Anything else? Fred Bruning: No. I guess that’s it. Papke: Okay. Thank you very much. Appreciate it. Anybody else like to speak? Okay. Seeing none, close the public hearing and bring it back to Planning Commission for comments and discussion. Undestad: You know the comment about the neighbors or who’s in compliance, who’s out of compliance. That’s why we started the zoning ordinance. You know we have no idea how many people are out there that are over the 25% now but the idea is when people come to do this kind of stuff, or add a patio or a shed or anything, that’s when this stuff is caught and then we have that opportunity to fix it. Unfortunately that’s what this is. Somebody came in for the permit application for an addition and oh by the way, you know we’re already over it before we start so. As far as the use of the house, you know I’m not sure what everybody else has inside their house in the neighborhood. I don’t think that really matters the way it lays out here so. You know again what I see here is something that Commissioner Dillon brought up later is the variance for the driveway or the hard surface or anything, again for neighborhoods like this, you know just one right after another one’s going to come in and want the round about’s and the turn around’s so I guess I’m kind of siding with staff on this one. 8 Planning Commission Meeting - December 2, 2008 Papke: Okay, thank you. Keefe: Yeah, I’m struggling with the hardship. Really what it is and I think reasonable use is probably, I think these guys probably have reasonable use so that’s kind of where I come down on it. Laufenburger: One of the things that I’m thinking about is the engineered patio. The 723 square feet I think, but even if you disallowed that, considered that not part of the impervious, they’re still over so, I appreciate their attention to attempting to keep the erosion down but even if that was considered pervious, they would still be over. I don’t know. I look at that and like you Mr. Chairman, we don’t know that that house is over 25%. Visually it looks like it, and if I was a neighbor I would be upset that how can they do that. But that’s not our job. Our job is to enforce the code of the City of Chanhassen and so therefore enforcement of the code is where I would settle too. Papke: Thank you. Kathleen. Thomas: I think everyone has said it well and enforcement of the code is what the important part is so that we don’t have more of these same issues or people coming in and asking the same thing and saying, well what’s 3%? What’s 4%? That kind of stuff so I agree. Dillon: You know I think on page 6 of the package we got here, under the paragraph that calls compliance, I mean it kind of nets it out pretty well for me. The applicant has demonstrated that the goals of the homeowner to add onto the home can be achieved without the need for the variance. It’s my perception that that’s mostly what they want is to increase the living space here, and it sounds like they can get that, and you know kind of can change the dog kennel. Change the pea rock. You know make the gas grill thing, eliminate that. Yes, a little bit smaller on the turn around things but it kind of sounds like it would get at the public safety issue of the backing out all the time and so it would seem to me that that would be the best win/win situation is to deny the variance but say go ahead with this other stuff. We wouldn’t even have to say go ahead with it. It sounds like it’s already in play. Papke: Well said. The only thing I’d add to all the discussion so far is, I appreciate the challenges that the homeowner has with the topography on this lot. We have a lot of these situations in Chanhassen. However on the flip side, this is almost 2/3 of an acre and I think there’s plenty of opportunity here for other alternatives. I think with the driveway, we’ve seen that several neighbors have equivalent or more challenging back-out’s and there’s plenty of alternatives to do gravel turn around or something like that where pervious surfaces are, I’m sorry. The public hearing is closed now. So I think there’s, the applicant does not have a hardship from the perspective that there are many alternatives that could be employed to stay within city code in this case. So anyway that’s all I have to add. So with that, I’ll entertain a motion. 9 Planning Commission Meeting - December 2, 2008 Undestad: I’ll make a motion. That the Chanhassen Planning Commission denies Planning Case 08-24 for a 3.7% hard surface coverage variance on Lot 7, Block 1, Maple Ridge Addition and adoption of the attached Findings of Fact and Action and subject to conditions 1 through 4. Papke: Is there a second? Dillon: Second. Undestad moved, Dillon seconded that the Chanhassen Planning Commission denies Planning Case 08-24 for a 3.7% hard surface coverage variance on Lot 7, Block 1, Maple Ridge Addition and adoption of the attached Findings of Fact and Action and subject to the following conditions: 1. The site must comply with the 25% maximum hard surface coverage requirement as outlined in the City Code. 2. Excess hard surface coverage must be removed and revegetated no later than May 31, 2009. 3. An as-built survey, signed by a registered land surveyor, is required and must be submitted no later than June 15, 2009 to ensure compliance. 4. Final building inspection will not be approved until verification of compliance. All voted in favor and the motion carried unanimously with a vote of 6 to 0. APPROVAL OF MINUTES: Commissioner Thomas noted the verbatim and summary minutes of Planning Commission meeting dated November 18, 2008 as presented. COMMISSION PRESENTATIONS. None. Chairman Papke adjourned the Planning Commission meeting at 7:35 p.m. Submitted by Kate Aanenson Community Development Director Prepared by Nann Opheim 10