CC Minutes 1-12-09
City Council Meeting - January 12, 2009
Councilwoman Tjornhom: And Happy Birthday.
Mayor Furlong: Enjoy your ride back. Hopefully it’s shorter.
APPEAL VARIANCE, AMBROSEN/SENN, 3830 MAPLE SHORES DRIVE, LOT 7,
BLOCK 1, MAPLE RIDGE, APPLICANT: SAWHORSE DESIGNERS AND
BUILDERS, OWNERS: MARK AMBROSEN AND ANN SENN: REQUEST FOR A
HARD SURFACE COVERAGE VARIANCE.
Kate Aanenson: Thank you Mayor, members of the City Council. This item appeared before the
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Planning Commission on December 2 and at that time they recommended 6-0 to deny the
variance. This site is located on Lake Minnewashta, off Minnewashta Parkway. Maple Shores
Drive and specifically it’s a cul-de-sac with a lot. There was some confusion about this being a
flag lot. It’s not a flag lot. As we interpret a flag lot, a flag lot or neck lot has 30 feet of width.
This is an unusual shaped lot but it does meet the requirements of a regular lot. What we
measure the lot width where it meets the 100 foot depth, so it does meet that requirement so
technically this came up at the Planning Commission. There’s some other information in the
staff report that was brought up by the Planning Commission. I’m not going to go through all
that tonight unless there’s specific questions on it. Just some background I think that the
planning, the applicant had raised that we addressed and just to kind of reiterate so I’m not going
to spend a lot of time on that. Just kind of focus on the issues itself. Again the Planning
Commission did recommend denial so the application, or the request before you tonight follows
through on that same motion. So the request is for a 3.7% increase in the hard surface coverage.
This request was derived by the fact that the applicant had come in to do an addition to the
house. The lot itself was slightly over. They wanted to proceed with the application prior to the
frost so the staff did find a way to work through the process of allowing them to proceed, but
requiring an escrow for that application itself. So this is the existing home on the site. The
applicants wanted to take one of the garage stalls, the 3 stall garage. Turn it to a laundry area
and add an additional garage stall so that would increase the impervious, so as it sits today, this is
how the lot looks and this is the proposed addition, so you can see the existing garage in this
space, so we’re over off the 28.7% so kicking out this additional garage space. So with that the
applicant, again trying to work with the applicant, we did request that, if they did want to
proceed that they would provide security to remove the hard surface coverage, which they
demonstrated they could do, and allow them to proceed with that security in place with their
requirement that they did proceed for the variance, so they have done that. So in looking at that
application itself, you can see in this area here where they could remove the hard surface
coverage to meet the requirement. At the Planning Commission there was a lot of discussion on
lake erosion and that sort of thing but I think what we really want to kind of keep the discussion
on the portion of the application here is where we could remove the hard surface coverage to
meet the requirement. It is a lakeshore lot so there is enough square footage to get them under
the, as you can see here, the percentage down to the 25% which includes some of the removal of
the fire pit area. The extra turn around. I’ll show you some pictures that you do have in your
packet. I think they show up a little bit clearer. There was an issue regarding the potential flag
lot, how to back down. Again the staff’s opinion, when they went out looking and our staff,
Angie Auseth who wrote the staff report and visited the site, felt it was pretty flat and relatively
easy to back out and felt that that probably wasn’t part of the hardship, and obviously the
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City Council Meeting - January 12, 2009
Planning Commission in their recommendation concurred with that, but that was some of the
concern that being a flag lot it would be hard to back out, but in our opinion again that front part
of the lot does appear to be relatively flat and that shouldn’t be part of the problem. So with that
the, we believe that they can meet the requirement by reducing some of that hard coverage,
which we had recommended. They did have to submit a detailed survey for us in order to
determine, for them to proceed ahead of time. They would have needed it with the application,
but with the building permit to figure out where, how much they were over, so that was a
requirement as a part of this too, and as-built survey in order for us to figure out exactly how
much hard cover they have. So again the staff’s opinion was that there was reasonable use of the
property. We had put in the report that these are larger lots. At that time the lakeshore rules did
require 20,000 so this is a 28,000 square foot lot so it is a little bit bigger and the homes
obviously down in that area are larger too and they do have a 3 car garage, so these are some of
the factors that the Planning Commission also looked at in their determination of the
recommended, supporting the staff’s variance. Again the hardship was that they didn’t want to
have to remove the hard cover that was already there. So with that, that was the staff report. The
Planning Commission concurred with that and I’d be happy to answer any questions that you
may have.
Mayor Furlong: Thank you. Any questions for staff?
Councilman McDonald: The question I guess I would have in looking at this, you said that you
all had gone out there and kind of assessed the driveway. Is there room if someone is in the
garage to back out and maneuver so that you can drive down instead of back out? Is there
enough turning space?
Kate Aanenson: Well there’s a 20 foot space here. Along the driveway that you could back out.
Even on this one too, you could back into that. This is the additional driveway.
Councilman McDonald: Okay. Okay, so really at that point you would still, you wouldn’t have
to back down the driveway then?
Kate Aanenson: I don’t believe so but even if you wanted to.
Councilman McDonald: It’s flat enough and open enough that it doesn’t create a.
Kate Aanenson: Correct.
Councilman McDonald: And it’s also from.
Kate Aanenson: The visibility appeared very clear. You’re at the end of a cul-de-sac. It didn’t
seem to be a big conflict.
Councilman McDonald: And it was also flat.
Kate Aanenson: Right, because that’s what most people would do would be back out their
driveway. Yeah. It’s relatively flat.
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City Council Meeting - January 12, 2009
Councilman McDonald: Okay. That was the biggest question I had because that was the biggest
area and I was just wondering how much space was actually there. Okay, thank you.
Mayor Furlong: Councilwoman Ernst.
Councilwoman Ernst: Kate, some of the things that you noted in here was the re-establishment
of vegetation cover would slow the movement of surface water.
Kate Aanenson: Well I think we got into a big discussion on the back yard. We got into some
side issues I think of whether it’s a flag lot. The erosion in the back yard, but again certainly re-
establishing the back yard would be great, but I’m not sure that’s the main thing that we’re
looking at here tonight. If we want to have a discussion on that, I think those are some of the
points that I brought up that were brought up at the Planning Commission. We kind of touched
all bases on that issue.
Councilwoman Ernst: Well the reason I’m asking that question is because I’m wondering,
depending of course on how much vegetation would be replaced, is would it compensate for a
majority of the additional percentages being asked for?
Kate Aanenson: Well, some vegetation was taken down during the construction of some of the
structures in the back yard.
Terry Jeffery: If I may Mr. Mayor. Councilwoman Ernst.
Mayor Furlong: Yes Mr. Jeffery.
Terry Jeffery: No, I do not believe that it would count in saying for the additional hard covers
that would be put onto this site. First of all, I mean it’s a DNR shoreland regulated area so they
don’t have, within the SNR rules. There isn’t something that says if you go over by this and you
do this to mitigate, then it’s okay. It’s just a flat rate. So exclusive of our city code for the 25%
impervious, there’s the DNR rules because this is a shoreland area. So even if we didn’t have the
25% hard cover within the rest of the city, you’d still apply it here. But like Kate had said, it did.
It became some side discussions. What about this? What about that? We put in this patio for
these reasons when really the issue is, can they build their stated goal and meet the 25% hard
cover and they’ve demonstrated that they can.
Councilwoman Ernst: Well I know that we have made slight concessions in the past, depending
on what the owner was willing to do and I’m curious as to what the DNR regulation is. So when
you were talking about the DNR regulations, what is that for this kind of property that we’re
talking about?
Terry Jeffery: Anything within 1,000 feet of a DNR regulated water body cannot have more
than 25% impervious cover.
Councilwoman Ernst: Okay. So that’s outside of our city code?
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City Council Meeting - January 12, 2009
Terry Jeffery: Correct. Our, we put together our own shoreland ordinance and submitted it to
the Director of the Department of Natural Resources for their approval so that we then could
regulate the lakes within our city instead of having to rely upon an outside entity. So our rules
need to be consistent with the Department of Natural Resources rules.
Councilwoman Ernst: But I mean even if we were to do that, it sounds like it would be against
what DNR regulations are.
Terry Jeffery: Correct. The Department of Ag, or the Department of Natural Resources would
need also to sign off on it. Typically they will defer to the city but it would need to be submitted
to the Department of Natural Resources for their approval of any variance that would be
requested, or granted.
Kate Aanenson: Mayor if I may, I just want to clarify. We have had smaller beachlots in Carver
Beach and some cabins that were on Minnewashta that have gone over. I don’t want to say
we’ve never gone over the hard, and I think Councilwoman Ernst is correct. We’ve tried to
apply mitigation. But we look at the hardship rule. Some of those old cabins didn’t have a
garage and we as Minnesotans, in weather like this, have deemed not having a garage is a
hardship. So then we would find a way to mitigate that providing additional landscape. In this
circumstance the Planning Commission felt having, already having a 2 car garage. Converting
that and adding on didn’t meet their belief of that hardship rule. If that clarifies where, kind of
where, because we have done that before. Provide that mitigation but it was that hardship test
that they were struggling with.
Councilwoman Ernst: Thank you.
Mayor Furlong: Other questions? Ms. Aanenson, a couple questions. First of all, can we, let’s
start with this picture right here that you have of the 8 shaded red areas, or red shaded areas. Are
those the proposed removal of impervious surface on the site?
Kate Aanenson: That’s correct.
Mayor Furlong: And who put this together?
Kate Aanenson: The applicant did because we wanted to see if they could meet the test before
we issued the building permit. That’s why we asked for that design, because when we saw the
building permit come in, it appeared to be over so we asked them for the as-built so we could
determine what. Then we had to make the next decision. They really wanted to go forward and
now we’re trying to be you know as accommodating as we could so we looked at could they find
a way to do it. If they had to and didn’t get a variance.
Mayor Furlong: And the answer was they came back with this showing that they could.
Kate Aanenson: Yes. And just to be clear, I don’t think we would have felt comfortable letting
them proceed, because we don’t have that authority to allow them to go without an opportunity
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City Council Meeting - January 12, 2009
to meet that requirement so we wanted to say, does that seem a reasonable way to meet the
requirement and let them proceed with the building permit in violation of the code, so we had
security in place. So that was the reason we went that way. They provided that information to
say this could work. Otherwise we wouldn’t have granted them that opportunity because
normally we would say you can’t proceed until you work through this process.
Mayor Furlong: Okay. Alright. And then if you could scroll back up a couple. You showed the
existing square footage.
Kate Aanenson: Oh sure. Of the original house?
Mayor Furlong: Well that’s the proposed addition. That one right there. The existing site
coverage. That already exceeds the 25%?
Kate Aanenson: Yeah.
Mayor Furlong: Did that happen with some patios and such…?
Kate Aanenson: I would guess. Probably a patio or fire pit or something like that. That’s
correct.
Mayor Furlong: Okay. And generally permits now a permit is required but over the years.
Kate Aanenson: They’re not always achieved, right.
Mayor Furlong: They haven’t been, okay. Alright. And if you scroll down then to the proposed
additions, the proposal in front of us is to allow the additional 850 square feet without removal of
even the existing, or the pre-existing violation. But that the proposal is to allow what they were
before plus the addition of everything, is that what they’re asking for?
Kate Aanenson: Correct. Yeah. Well to get to the 25%, so we didn’t give them the .7, is that
what you’re asking?
Mayor Furlong: No, I just want to clarify that the 28.7 that’s being requested includes what the,
how the property was existing before any of the additions plus all the additions.
Kate Aanenson: Yeah, I think that’s correct. Yeah, the next slide I show them together. I think
that there’s a comparison there. That’s probably a better comparison, yeah.
Mayor Furlong: Okay. Now at the bottom there, percentage with reductions. So that actually
within a few square feet. But what staff is recommending with the Planning Commission also
recommended is that they be required to, with the additions, still remove enough so that they
meet the 25 foot, 25% requirement.
Kate Aanenson: That’s correct.
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Mayor Furlong: So they can have, increase the additions but they have to take something out.
Kate Aanenson: That’s correct.
Mayor Furlong: Okay. Thank you. Okay, anything else at this time? Okay, is the applicant
here this evening? Representative, that will work just fine. Please approach the council and state
your name and address for the record sir.
Fred Bruning: Yeah, my name is Fred Bruning. I’m with Sawhorse Designers and Builders,
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4740 42 Avenue North in Robbinsdale.
Mayor Furlong: Okay, thank you. Please.
Fred Bruning: Good evening Mayor and council members and city manager and attorney. I
assume you all have read the report and think you guys seem to know some of the issues, so I’m
not going to repeat the narratives and things I did before. What I’d like to do is comment on
some of the items in the staff report. Also if I could now ask some questions for clarification.
Mayor Furlong: That’s fine.
Fred Bruning: What I did is I made some copies of some notes and comments that I have.
Mayor Furlong: Please. Maybe if you have copies for the staff as well.
Fred Bruning: Well I have 6 copies. I counted 5 council members and the mayor.
Mayor Furlong: Okay. Well maybe we can share up here but I want to make sure that staff has
copies too.
Councilwoman Tjornhom: You go ahead and take a copy and Jerry and I will share. Assuming
you’ll share with me Jerry.
Mayor Furlong: Please continue.
Fred Bruning: Yeah, and I’ll show you how this all works as we go through it but I’ve
highlighted some things I’d like to comment about. First highlighted one with the one off to the
left there. Based on the guidelines of the city code for the RSF district, the property owner does
have a reasonable use of the property which includes a single family home and a 3 car garage.
I’ve gone around a little bit on this as far as like a definition. I mean what is reasonable use?
When I’ve asked staff before if it’s an R-1 zoned house and a 2 car garage, it’s reasonable use. It
seems like that term could be substituted for reasonable use and be much more clear what is
reasonable use.
Mayor Furlong: Ms. Aanenson, Mr. Knutson?
Kate Aanenson: Well I think, you know are you talking about for a single family lot?
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City Council Meeting - January 12, 2009
Fred Bruning: Yeah.
Kate Aanenson: A single family lot, depending on the type of home, you could have a rambler
on that that meets our minimum which is probably less than 1,000 square feet with a 2 car
garage. There’s no requirement in the city that you’re obligated for a 3 car garage.
Fred Bruning: No, so my, and just for clarification then. You know the definition is an R-1
zoned house with 2 car garage. I mean that’s reasonable. That’s the only recognized reasonable
use.
Kate Aanenson: That’s correct.
Fred Bruning: Okay. It’d be helpful I mean if you guys wanted to adjust things, put that
language in there and it, you know it eliminates a lot of ambiguity. There is a reference I’d like
to make, if you look to page 10. There are numbers at the bottom. Section 20-58 in the city
code, the highlighted portion. For purposes of definition of undue hardship, reasonable use
includes the use made by the majority of comparable property within 500 feet. The comparable
property within 500 feet of this property exceeds, a majority exceed hard cover. I mean if you
look at aerial photos it’s obvious. You know it seems that reasonable use is supposed to include
uses made by the majority of people within 500 feet.
Kate Aanenson: Can I clarify that? That was, most of these points were brought up at the
Planning Commission I believe were addressed but there is a house that they pointed out that’s
over the impervious and we’re following up on that one. We have some other ones, if we’re
made aware of them and they’ve done work without a permit, we’re following up on those. I
don’t believe a majority of them are over the 30%. Again, 25%. Yeah, again most of those lots
on the end of that cul-de-sac are larger too, so.
Mayor Furlong: But for clarification, the 25% requirement, obviously the allowable impervious
coverage varies by the lot size because the 25% is of the lot size.
Kate Aanenson: That’s correct, so you really have to do a survey.
Mayor Furlong: A larger lot would have larger impervious surface coverage allowed.
Kate Aanenson: Correct. And this lot is 28,000 so it’s already given quite a bit more hard cover.
Fred Bruning: Yeah, I mean part of our issue at the City Council meeting was, we were asked to
document that. I mean I don’t have any right to get a survey of someone else’s property. And if
I were to survey 32 properties, I mean $32,000. So it’s hard. You can go on the Carver County
web site you can look at it and we did math. At work we tried to be very fair but we came up
with 20 out of the 32. The technique that was used to determine that this lot was over hard cover
and required the calculations was the city staff doing an aerial photo examination of the property.
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City Council Meeting - January 12, 2009
Kate Aanenson: Mayor may I just want to clarify that. Survey, as-built survey was submitted
and that’s what we used. The survey that was submitted.
Fred Bruning: Requiring as-built survey, the determination to require that was actually made,
Rick Mylar our staff architect isn’t here but we met with the city ahead of time to go through the
whole process to make sure that there weren’t any bumps in the road. We as a company try to do
that so everything’s smooth sailing for our clients.
Kate Aanenson: Again let me clarify for the council. The staff acted in good faith to allow the
applicant to proceed knowing fair well they were exceeding the hard cover. We rarely do that
but we acted in good faith to let them proceed based on the survey they submitted to us showing
a hard cover. So we wouldn’t have issued you the building permit had you not submitted that. It
wasn’t an after thought. It was permission for you to proceed.
Fred Bruning: That was part of the building permit to require the survey. The calculation for
hard cover actually weren’t initially asked for. We don’t mind providing that. I mean don’t get
me wrong. We don’t mind providing them. The clients agreed to the terms and everything to
grant the permit. I mean we’re acting in good faith too. I’m just trying to understand you know
the process and how things work here. I mean, so that’s my only question on this item.
Kate Aanenson: Can I just clarify again? There’s a disconnect here because how would we
know they were over and allow them to proceed with security in place unless there was an as-
built survey?
Mayor Furlong: I guess the question, your question sir is about normal process so let me ask
some questions for clarification.
Kate Aanenson: Sure.
Mayor Furlong: The normal process, assuming weather’s not a factor. A property owner will
come in seeking a building permit. Perhaps with a representative and will, one of the steps prior
to issuing that permit is hard surface coverage considered in any of those?
Kate Aanenson: Yes. Every time.
Mayor Furlong: How many?
Kate Aanenson: Every one.
Mayor Furlong: Every time.
Kate Aanenson: Every time.
Mayor Furlong: Okay. And to the extent that the additions or the existing property, the
properties existing built out or the additions would exceed the impervious surface limit for that
property, what’s done?
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City Council Meeting - January 12, 2009
Kate Aanenson: Well normally we wouldn’t let something proceed. We would say you need a
variance and stop right there.
Mayor Furlong: Prior to proceeding with any.
Kate Aanenson: With any building permit.
Mayor Furlong: Before issuing a permit.
Kate Aanenson: Right. Now let me just clarify. If you have a permit that was issued 6 months
ago with an as-built survey that someone wanted to put a deck on within 6 months or a year,
would we ask them for a new one? This was built a number of years ago so specifically.
Mayor Furlong: But that would just be what information would be requested to issue the permit.
Kate Aanenson: Correct.
Mayor Furlong: But the, if I’m understanding the question correctly, and maybe I’m not so
correct me if I’m wrong sir but I’m getting the sense that the question here is, we just came in for
a permit and this hard surface issue came up later.
Kate Aanenson: Right. I guess where I’m confused is, we tried to be, in good faith, we tried to
do them a favor and now we’re being like we’re the bad person you know.
Mayor Furlong: I guess I’m not hearing that but.
Fred Bruning: No, not at all.
Mayor Furlong: Maybe you could keep moving along here so that.
Fred Bruning: Sure.
Mayor Furlong: I mean make sure we understand what your concerns are.
Fred Bruning: Sure. My clients come in, well there’s many of them and maybe I get onto the
rest of the points but the whole process. I mean we’re replying we agreed to these things along
the way. I, this first term here. I’m just, what’s reasonable use of a property? In the city code it
says a reasonable use is also a use that’s enjoyed by the majority of people within 500 feet of
this, well comparable properties within 500 feet of this.
Mayor Furlong: And what I understand you’re saying is that in your opinion 20 of the 30 or 30
plus properties nearby also exceed the impervious surface coverage.
Fred Bruning: Right, but I can’t you documentation because I don’t have a legal right to do that.
On the web site you can actually look and see that. I mean I realize that the city has an issue
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City Council Meeting - January 12, 2009
with hard cover and it has become apparent further, we’re trying to address that and maybe it
will become more apparent later on but I think I have an understanding of my question.
Mayor Furlong: Okay.
Fred Bruning: Second point here. The process of obtaining the building permit and the
reduction of 1,039 square feet. Staff indicates that demonstrates their goal of adding a home,
adding to their home and bringing the site into compliance with the 25% minimum hard cover
can be achieved.
Mayor Furlong: I’m sorry sir, where are you in your document?
Fred Bruning: Oh, the first page, the second highlighted item.
Mayor Furlong: Thank you.
Fred Bruning: Page 3, and if you look over at the right hand side. The two with the circle on it.
In one of the narratives I brought the point of just because my home, my clients are willing to
accept a hardship, it doesn’t mean that the hardship doesn’t exist. Part of the process going
through here is we had winter quickly approaching. We talked to the staff way ahead of time,
end of September and just went through the steps of what we were proposing to do. We want to
make sure there’s no hiccups in the road. Want to make sure it’s smooth sailing. Initially it went
pretty smooth but then you know all these things started coming up, which we handled, and we
agreed to everything that we’re into now. We were going to go through the variance process at
the same time we’re going through the permit process. What we proposed to do here we’re
suggesting is a hardship. What we’re being asked to do. Remove the driveway. Forcing our
clients to back down 140 feet of driveway. Narrow driveway. Earlier when I said, and I had no
way to comment at the time, the proposed driveway, I design a lot of driveways. I design a lot of
projects. You can’t turn around out of 2 of those 3 garage stalls. The only one is the one nearest
the house that you have a chance of backing up and going down the driveway. The other two,
no. I mean the turning radius of a car to clear the garage doors, you can’t. That’s part of the
issue is they would be required to back down a driveway.
Mark Ambrosen: Excuse me.
Mayor Furlong: Good evening.
Mark Ambrosen: Mark Ambrosen, 3830 Maple Shores Drive.
Mayor Furlong: Thank you.
Mark Ambrosen: I just wanted to, the point of backing out of the garage is.
Mayor Furlong: Which picture do you want?
Kate Aanenson: I’m trying to find a picture with the driveway.
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City Council Meeting - January 12, 2009
Mark Ambrosen: Okay. The problem with backing out of the garage, to turn around and go
down, you’re, the red depiction doesn’t show the 2 trees. There’s actually 3 trees in the middle
of the turn around. We have an island built up around those trees. If you want us to cut down
those trees, then we could back up but I don’t think anybody wants to do that. But that’s what’s
preventing us.
Kate Aanenson: Well I guess my question then is why did you show us the potential to be
removed to meet the code, because that’s what we agreed to when we advanced that, that could
be removed.
Fred Bruning: Like I stated, we’re demonstrating something could be removed because we
needed a permit. We anticipated getting a variance because what we’ve demonstrated is a
hardship and that’s why we’re asking the City Council and Planning Commission to decide.
Councilman Litsey: But out of each of those garages you could back out down the driveway.
Each of those stalls.
Fred Bruning: The only chance you’d have is the one closest to the house. It would give you
enough turning radius to back up in the remainder there and head down the driveway.
Councilman Litsey: No I’m saying back down the driveway. You could back down the
driveway from any of those stalls.
Fred Bruning: Oh sure. Sure.
Councilman Litsey: Okay, and that’s the normal way most people exit their garages is to back
down the driveway. Now you’re saying perhaps because it’s a longer driveway that’s creating
some kind of additional undue hardship. Is that what you’re saying?
Fred Bruning: Correct. Yeah, backing down a 30 foot straight driveway, sure. It’s not an issue.
Some of the neighbors on that street actually do that. This is the closest stall is 140 feet. And
it’s an 10, well average width about 10 foot 9 in the driveway.
Councilman Litsey: Well I guess where it gets confusing is you make it sound like there’s no
way out of those other stalls. There is. It’s backing down the driveway and then it’s a matter of
whether that creates an undue hardship or not.
Fred Bruning: Sure. I would just comment, there was a question for staff before I came up and
it was said that you could back out of those garage stalls and turn around and head straight down
the driveway. There’s only one chance on one of the stalls you could do that.
Councilman Litsey: Yeah.
Todd Gerhardt: Mayor, council members, if I could add a point here. You know you could look
at putting a hammer head in, but you would have to find another spot to pull out more
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City Council Meeting - January 12, 2009
impervious. Fire pit as an example could come out of there. Allow you the prioritizing of which
of the two you’d prefer versus backing all the way down or having the fire pit taken out and
putting that impervious as a hammer head. If that makes sense.
Mark Ambrosen: As far as I’m concerned, and my wife, we would take out the fire pit and patio
down by the lake, we’d take out everything else. We really do think that having the turn around
is a safety issue. My wife wanted me to tell you that she can’t back down.
Todd Gerhardt: No, it’s.
Mark Ambrosen: The other thing in, it’s probably not a problem legally but we do have a
problem at the end of the cul-de-sac. If you look straight down that driveway on the bottom
picture, 3 driveways back into, if we’re one of them, back into that spot. To the right is no
factor. The house is coming down a driveway right across, yeah. Right across a broad expanse
of one so there’s good visibility. To the left there was a large blue spruce tree. About 25 feet
tall. They come, they back up a hill blindly.
Fred Bruning: You can actually see it on page 6.
Mark Ambrosen: Okay, on page 6. Yeah, that’s a good example. That guy has already backed
in and hit my wife as she was parked in front of the mailbox because he can’t see her. So that’s
kind of a blind issue. When you have 3 driveways backing into the same area. Compounding
that, in the same picture you’ll see what is the neighborhood basketball hoop. That is owned by
the entire neighborhood. We have 15 children in that cul-de-sac under the ages of, the oldest is
15. As you can imagine that gets a lot of activity. The youngest are, I think we have a 5 year old
and a 7 year old.
Mayor Furlong: And what, I’m sorry, where’s the basketball hoop?
Mark Ambrosen: Yeah, on page 6.
Todd Gerhardt: Here’s a picture of it.
Mark Ambrosen: Just to the left of the driveway.
Mayor Furlong: Okay, so they. Okay so the hoop, and we see that in cul-de-sacs where the hoop
faces out towards the street and children play in the cul-de-sac.
Mark Ambrosen: Correct. That’s the only flat place in our cul-de-sac because in the actual
circle at the top, that’s fairly flat. Otherwise you have a hill all the way down to the parkway.
Todd Gerhardt: The city manager loves basketball.
Mark Ambrosen: That basketball hoop is, I don’t know how long it’s been grandfathered but
that site has been there since before we were there in 1999.
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City Council Meeting - January 12, 2009
Todd Gerhardt: Mayor and council members, from staff’s perspective, Terry if I can speak for
you, we don’t care where the impervious comes out as long as you hit the 25%, and if you’re
willing to take the fire pit out, staff could live with a hammer head or the U shaped as long as the
square footage.
Kate Aanenson: And the square footage, thank you.
Todd Gerhardt: Yeah, is the same.
Mayor Furlong: What I’m hearing is the overall square footage for the property.
Kate Aanenson: Yep. We went by what their recommendations were. That’s why I was totally
lost where they were going with the discussion. That was their recommendation they made so I
would agree. If they can find whatever they want to take out to meet it.
Todd Gerhardt: Yep. You don’t have to follow the red as long as you hit the 25%.
Fred Bruning: One of my concerns though is part of the process. We were required to do
calculations, which we did. Once this whole process ends we’re required to get an as-built
survey of the property by registered surveyor. If their documentation is different from our’s? I
mean I’m not a surveyor. I mean…that’s what I was required to do. All said and done when it
comes to the end, maybe the fire pit isn’t big enough. Plus we’re being asked, I think we were
200 square feet over before we even started this on the hard cover for the lot. We’re being asked
to mitigate what we’re adding plus that original 200 square feet.
Councilwoman Ernst: Is that the .7?
Kate Aanenson: Yeah. It sounds like we kind of need to meet on kind of where the hard
coverage may be and we can work that out.
Mayor Furlong: Perhaps. I don’t know if there’s an understanding here that, and Mr. Bruning
I’ll let you continue but as I understand it, the schematic that showed the red area was submitted
by you, through staff, saying here’s how, based on our best information, here’s how the 25%
could be met. And that was submitted in order to obtain the permit and in anticipation on your
side of achieving a variance.
Fred Bruning: Correct.
Mayor Furlong: But nonetheless it showed that the property, with the additions, could meet the
25%.
Fred Bruning: Yeah, and that was a requirement for the permit, exactly.
Mayor Furlong: Understand. Okay. Alright. And so what I’m hearing here tonight is, if we go
forward tonight and adhere to the 25%, the red is not required. It is the overall property, 25% on
the property. So whether that is a patio, pavers somewhere else, whatever that is necessary to get
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City Council Meeting - January 12, 2009
down to that 25%, it doesn’t, what I’m hearing staff, Mr. Gerhardt and Ms. Aanenson say is, it
doesn’t have to be the red if it’s, if you believe in terms of safely driving in and out of your
driveway you want to keep some of the red up by the driveway but remove something else
somewhere else on the property, that that would meet the requirements. Is that, am I stating that
correctly?
Kate Aanenson: That’s correct. If you look on the slide, our goal is to get to the 1,039 square
feet.
Mayor Furlong: Yeah, so. Does that?
Todd Gerhardt: Yeah, and to answer your question, I’m following you. Once you get the actual
survey completed you may want to have a fallback plan on the driveway because when you look
at the red on the driveway, and you look at the size of the fire pit and the little patio next to it,
having those two taken out probably isn’t going to match exactly to the red area in the driveway.
So you may want to look at reconfiguring that driveway a little bit also. But you know it’s the
25% is kind of the rule that we’re following so I would start looking at potentially another
alternative area and do the best math you can.
Fred Bruning: Yeah, I mean we’d probably do that after the as-built survey.
Kate Aanenson: Well let me just bring something back. We let a permit issue that’s not meeting
it so I just kind of want to understand. We hadn’t done that before. Wherever the council’s
feeling about that and you know again we issued it in good faith that they’re going to try to meet
it and I’m hoping that they’re still trying to meet it.
Fred Bruning: No, no we’re.
Todd Gerhardt: I hear they are Kate.
Fred Bruning: This isn’t adversarial. I’m sorry if you’re taking it that way.
Kate Aanenson: Okay, yeah.
Fred Bruning: Like I said, very early on in the process you know part of my job is to be creative.
I met with the city way before we were going to even apply for a permit you know in September
and laid out some different steps. What we were proposing to do. Through a collaboration of
going back and forth, this is what we came up with. Everything was fine. Okay, this is what
we’re going to do. We’re going to apply for a variance you know and so yeah, I mean we were
going to request this being a hardship. You know it was understood and if the pre-existing
conditions are deemed a hardship and is ruled in our favor, great. If it’s not, here’s the fallback
position.
Mayor Furlong: Okay. Help us understand then, to clarify I think it would help, what the
hardship or hardship factors are. What are the special hardship factors?
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City Council Meeting - January 12, 2009
Fred Bruning: Okay, I’ll, to answer your. I was going to get to that but I’ll get out of sequence
here and cover that. In my narrative, and I’ll have to find it here. This one here. There are
variations on the theme. If you look on page 3, the second paragraph. That explains the
hardship and I can read it into the record if you’d like.
Mayor Furlong: Why don’t you go ahead for those watching at home.
Fred Bruning: Yeah. For the little kids at home. 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 retaining wall patio system, drain system to protect it. Three properties to the south
have driveways longer than my clients. Each has a turn about. However they are near level lots.
Two have flag lot exemptions to the hard cover requirement. The remaining is 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 that it has both of these elements combined on a single parcel. 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’s not self created and the willingness to accept a hardship doesn’t
negate or create it. As part of that discussion, on page 11. Section 18-21. Building permits. It
talks about variances and in hardship is that hardships are not mere inconveniences. The turn
about on, to have a turn about isn’t just a convenient thing when you have a 140 foot driveway.
It’s actually pretty inconvenient to back down a 140 driveway. The patio paver system in the
back of the house is protection for the house. I mean they’re not doing it out of convenience.
They’re doing it out of property preservation. We’re submitting that these, because of the shape
of the lot, you know how far the home has to be set off the street, that that 46 feet of grade
change in the back of the home make this lot unique to anything within 500 feet.
Mayor Furlong: Okay. I think what I’m hearing is, is as the shape and the topography of the lot
that you’re saying is the hardship in this case.
Fred Bruning: Yeah, and in Section 18-22 I think you know it says that the hardship is caused by
particular physical surroundings, shape or topography, conditions of the land. And that’s.
Mayor Furlong: Okay. Okay. Anything else you wanted to share with us at this point? Then
we may have some questions.
Fred Bruning: And actually, I mean this is working fine if you want to ask questions along the
way.
Mayor Furlong: That’s fine. I just want to make sure we keep moving and you get an
opportunity to present everything you want to so I don’t want to cut you short.
Fred Bruning: If you continue onto page 2.
Councilwoman Ernst: Can I ask just a question? Back up for just a second.
Mayor Furlong: Sure.
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City Council Meeting - January 12, 2009
Councilwoman Ernst: One of the things that you mentioned is that the pavers are protecting the
property and preserving the property. In what way are they preserving the property?
Fred Bruning: When Mark and Ann bought their home there was nothing back there. It was just
you know the grade. In the first few years they were there, the hill, I mean just rain water would
erode the hill and wash it out. I mean lots of soil I assume ended up in Lake Minnewashta.
Councilwoman Ernst: So from erosion more or less?
Fred Bruning: Erosion.
Todd Gerhardt: It was a gravel driveway is what you’re saying?
Fred Bruning: Oh no. This is the, she was asking about the pavers in the back of the home.
Todd Gerhardt: Oh, back yard.
Mark Ambrosen: The previous owner was a Vikings football player and he had cut down all the
trees existing on the hill at about a 6 foot level so he had a great view. Subsequently we had
some serious erosion so we started attacking, and this is what I think the young lady was
referring to when we started getting off on the side conversations in the Planning Commission.
But it also addresses some of the hard cover that we put back there. We built out the patio. As
you see the pretty tall retaining walls back there. We built those and some of the smaller wing
walls as you go down that hill. We let all the trees grow, especially the fast growing maples and
some of the others. We planted a lot of vegetation trying to get that to go. Well Kenneth went
back and forth. The vegetation took hold. Trees grew up real tall. Then we had a real thick
canopy. Vegetation cease to grow. We put in a couple more holding walls on the hill and we did
thin out some of the trees on either side with the intent of letting the sun go back in. Getting
water in. Putting more vegetation back there.
Councilwoman Ernst: So what’s the square footage of the hard surface that you put in to prevent
erosion?
Mark Ambrosen: I think that was 7.8.
Fred Bruning: I think 7-23. That you know to allow that, to allow an exemption for that portion
of it actually resolves the whole issue. Everything else can go back in and we can mitigate the
hard cover if that’s considered an exemption. I mean that eliminates our issue.
Councilwoman Ernst: Okay, thank you.
Mark Ambrosen: One of the options given to us was replace that paver stone in the back with
decking because then that would not, that constitute a non-hard cover surface I believe.
Councilwoman Ernst: Would that serve the same purpose for erosion?
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City Council Meeting - January 12, 2009
Mark Ambrosen: No. No, it wouldn’t. Because then the water would just go right through.
Fred Bruning: If you had like a 4 foot retaining wall or something, yeah it would make a
difference. I mean if that’s open soil and it could drain everything, but this is over 30 feet tall. I
mean as soon as the soil gets saturated, I mean just the pressure on that wall with that column of
water. It was engineered to actually take the water past the slope of the hill and discharge it
onto, into a lower elevation. Since it was done they haven’t had any erosion problems. I mean it
solved the problem. So I mean they’re kind of reluctant to remove that. It’s worked for 10
years.
Councilwoman Ernst: Okay. Thank you. Sorry, I didn’t mean to interrupt.
Fred Bruning: No. No, that’s fine. On page 2 towards the bottom. Line number 5. Mark
addressed a little bit of that there. You know the, and I’m sure they’re willing to provide more
ground cover. A type of ground cover that you find suitable. However I mean you could talk to
Mr. Jeffery. That makes no impact. I mean that’s not a consideration for hard cover. I mean
hard cover is.
Mayor Furlong: Is hard cover.
Fred Bruning: It doesn’t make any difference if that’s a barren sand lot or if it’s got a forest of
trees. You know they act different as far as runoff but the city code doesn’t recognize a
difference. I think Mr. Jeffery is actually working on some things in that but it doesn’t help us.
Mayor Furlong: Okay.
Fred Bruning: I guess it’s in the page 3 towards the bottom. Options. I mean you know I
spelled out 4 things I’d like you guys to consider. I mean obviously the first one is if you
recognize a hardship. You know to grant the variance. The second on page 4, the second item is
what Vicki was I think kind of alluding to. To grant an exemption for, to the hard cover
calculations for like the necessary features of the property. That retaining wall, patio system that
protects their hill. You know the city already recognizes similar exemptions for things like
swimming pools. Driveways on flag lots. When you get into commercial properties you allow
much more hard cover for a commercial property than you do a residential property. So that’s a
second item I’d like you to consider. Number 3 is, and like I say Mr. Jeffery is working on some
of these things but request that you look at other means of mitigating hard cover. If the spirit of
the code is to protect our water resources. To keep the soils from washing in, prevent erosion,
there’s a lot of ways to do that that aren’t recognized by the current city code. If you look at
page 9, in my original narrative, item 3(a) to 3(g). I mean talk about some of them. There’s
more permeable driveway, patio surfaces available and the U of M Arboretum has been testing
these, but you guys don’t have any data on it. And so like permeable pavers, all those things are,
don’t qualify, even though they would improve the situation. There’s a portion of their property
that the shed at the lake is considered hard cover even though it’s elevated off the ground
because water can’t get underneath the shed. To put downspouts on the shed and push the water
underneath it would also make that a permeable surface. You know that’s not recognized. I
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City Council Meeting - January 12, 2009
mean Mark and Ann are trying to come up with solutions to get at what the whole point of the
hard cover code is and they’re willing to put effort, put money forward to do that. We’re just
asking you to consider those options. Holding ponds. You require those on commercial
properties. They’d be willing to do one here. Drain fields. Taking down spouts. Dispersing
that water over larger area. Dispersing it to areas that are actually covered by hard surfaces.
Allowing water to be under a hard surface. Putting a drain field underneath a driveway. Putting
a drain field underneath a patio.
Councilwoman Ernst: Is that the same as drain tile?
Fred Bruning: Yeah, similar. Yeah, very similar.
Councilwoman Ernst: Okay.
Fred Bruning: We proposed granting easements. The neighbor to the north and east of them,
huge lot. I mean you know hard cover is probably 7%. But to allow them to do an easement to
their property to spread out their hard cover onto that adjoining property. That isn’t allowed.
One I actually kind of like because it solves a lot of problems is actually doing a cistern. You’re
trying to mitigate you know storm water. Water that in a short period of time you have a large
water volume to handle. To bury a cistern. A buried tank in the ground that can disperse the
water over a long period of time. Run down spouts to the house into it. Put the catch basin, a
drain in for. The thing that’s nice about that is you can also use it for irrigation. You can water
your lawn and use less city water. There’s other things. I mean soil types. You know ground
cover. Different things you can do with pitch and grade and berms. The unfortunate thing is
none of those things are recognized. Mark and Ann are willing to, if you choose, be a test case.
I mean it’s been suggested none of these things can be monitored. The technology is to monitor
all of these. My favorite, the cistern idea is very simple. Remove the cover. Take a water depth
reading you know after rain. Find out how quickly it’s dissipating. Punch more holes in the
bottom if you want it to dissipate further. You know faster. So they’re willing to consider that
as a way to mitigate. Another thing is pea gravel has been suggested. We’ve actually done that
as a mitigating factor for their dog kennel. To use pea gravel instead of a hard paver system.
That’s also something that possibly could be used as a turn about for a driveway. Down side to
that is, it’s not a hard surface. It’s hard to snow plow that. You know the stones. The small
stones are bad you know because they get washed down the driveway. End up in the storm
sewer. The only thing worst for a storm sewer than sand is pea gravel. It just catches in all the
low spots. I guess the one last point I’d like to make is, and I think Bloomington’s going to
adopt a 25% hard cover rule also but from my knowledge I think Chanhassen’s the only one who
requires 25%. Shorewood, Mound. I mean Mound even has a 40% for some lots. Hard cover.
25 percent’s pretty tough. I guess that’s my points. Do you have any questions?
Mayor Furlong: Okay. Any questions of Mr. Bruning? I guess the, you know the question
before us here is the hardship. You brought up reasonable use and I think that’s really where it
comes down to. What is the reasonable use creating this situation that we’re here this evening
so.
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City Council Meeting - January 12, 2009
Councilwoman Tjornhom: I think one of my comments would be, earlier we discussed that the
items proposed by staff in red.
Kate Aanenson: That was the applicant.
Councilwoman Tjornhom: Was that the applicant? That maybe those need to be worked on a
little bit more. Is that correct? The applicant seemed willing to reconsider some or to move to
give and take some or I’m trying to figure out what I heard about 20 minutes ago regarding that
issue.
Fred Bruning: Sure. We proposed what’s in red in consultation with the client. However
they’ve had a dumpster in the driveway at the turn about. They’ve had to back down this
driveway and they realized you know how difficult that is. In weighing that all out the fire pit
near the lake is less important you know than having the turn about and so they’re willing to put
that hard cover back into the turn about. I fear when it’s all said and done, as you can see from
the drawing, it’s not enough space. It’s not enough mitigation. We’re not going to have enough
ground, enough hard surface from the fire pit to create that turn about.
Councilwoman Tjornhom: Okay. Just so I’m clarified then. This is the proposal and there’s
nothing else on the table for us to consider, or for you to consider tonight? When it comes to this
variance.
Fred Bruning: I think, well I think I’ve given you a lot of things to consider. For us we tried to
work up the best thing and I think Mark and Ann are going to sacrifice their fire pit to add as
much turn about as they can but like I say, my fear is that it won’t be enough. That there’s not
many other, we’ve taken out about anything we could think of to take out.
Roger Knutson: Mayor, members of the council. This plan is not a requirement. The
requirement is to, at least the recommendation of staff and the Planning Commission is to get
down to the required 24 or 25% hard coverage. How you get there is up to you. Do it. Whether
it’s this or something else. That’s the recommendation.
Councilwoman Tjornhom: And so just to the point of clarification for me then, what am I voting
on tonight? Whether they should do that? Or whether this is what they should do or? I’m
confused about.
Roger Knutson: No. The question is do you grant them a variance or don’t you.
Councilwoman Tjornhom: Okay.
Roger Knutson: If the answer is no. No variance is granted. Then they have to get to 25%. If
you grant a variance, then it depends on how much you grant.
Councilwoman Tjornhom: Okay.
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City Council Meeting - January 12, 2009
Mayor Furlong: Any other questions? For Mr. Bruning at this point. If not, thank you. I think
we’ll bring it back to, unless there’s anybody else that wants to comment on this. I don’t see
anybody else. Mr. Ambrose, do you want to say anything else?
Mark Ambrose: No, I think it’s pretty clear that we’re requesting a variance to exceed the 25%
but as little as possible. We would get rid of everything and if we could keep the turn around in
the driveway. So what that would wind up being I’m not sure.
Fred Bruning: Yeah, and like I say, I mean they’ve taken out everything they possibly could
take out. Things we’ve done in the addition to minimize that. I mean taking out their dog
kennel. I mean they’ve stripped out as much as they can and you know this is where they’re at.
Mayor Furlong: But for clarification though, they’re building an addition onto their house.
They’re adding 800 square feet.
Fred Bruning: Correct.
Mayor Furlong: So it say they’re taking it out, I think what’s creating this issue is the desire to
expand.
Mark Ambrosen: Oh absolutely. Absolutely.
Mayor Furlong: Okay.
Mark Ambrosen: Absolutely.
Mayor Furlong: Okay.
Fred Bruning: We’re just suggesting that it’s a hardship that they have to have these hard cover
surfaces on their property that other properties don’t have to have because their topography is
different. Because their shape is different. The properties that do have to have a longer
driveway, you know within 500 feet, have turn about’s. This is the only one of this length that
would not have one in this 500 feet.
Councilman Litsey: Are you already committed to the design.
Kate Aanenson: It’s under construction.
Councilman Litsey: It’s under construction. Okay.
Fred Bruning: We’ve already pushed, that’s part of it too. I mean for hard cover, a lot of other
reasons, we’ve actually rotated and pushed the addition into the house. Taken square footage
from the house away to get the addition, so we’ve, we’ve been pretty creative trying to reduce as
much as we could.
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City Council Meeting - January 12, 2009
Kate Aanenson: Just to clarify again. I just want to make sure everybody, there was a 3 car
garage. They had a 3 car garage.
Fred Bruning: There still is a 3 car garage.
Kate Aanenson: Right. You converted one of them to a laundry room and added on so that was
part of the addition, so.
Mayor Furlong: And then there was another garage stall put in to replace the one…
Kate Aanenson: Right, so that was the addition part. The 800 square feet. So I guess that’s
where we were trying to find that balance and wherever they shake out on that yeah.
Councilwoman Tjornhom: And one.
Mayor Furlong: Councilwoman Tjornhom.
Councilwoman Tjornhom: This is all kind of clear as mud for me. I just want to make sure I do
thinks right tonight. So if, say the council does not approve the variance and they have to meet
their 25% and they can’t, what happens to their construction? Or what will happen.
Roger Knutson: What will happen it they will be required to meet it some way. It will be their
decision on how to meet it.
Councilwoman Ernst: And they’re at 25.7% today, right?
Kate Aanenson: Right. Right, so it’s the addition that caused the. They were at 25.7.
Councilwoman Ernst: But they haven’t started any of the addition.
Kate Aanenson: Yes they have. It’s under construction. That’s what I’m saying, we in good
faith let them proceed.
Councilwoman Ernst: Sorry. Okay.
Fred Bruning: One thing I also have you consider. Worst case scenario, if you want to deny
everything else, have us mitigate the hard cover that we’ve added to the property. I mean don’t
have us you know take it down to 25% below where we even started. Have us mitigate the hard
cover that we’ve actually added to the property but the, what we’ve added to what we started
with.
Mayor Furlong: And that was, I’m sorry. Go ahead.
Councilman Litsey: Well I mean the bottom line is you have, if we deny, you have to meet the
25%. How you do that is up to you. I don’t think that’s up to us to tell you how to do that. Or
what you can and can’t do.
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City Council Meeting - January 12, 2009
Fred Bruning: But we started with 25.7.
Councilman Litsey: Oh I see.
Fred Bruning: Before we even built an addition.
Councilman Litsey: You want the baseline to be 25.7.
Fred Bruning: If everything else fails, yes. I mean that’s.
Mayor Furlong: And I guess that was the question I had asked earlier Ms. Aanenson of, before
the addition it was 25.7. They were already in violation of our ordinance and the question was
how did they get there? Was it the original permit or was it?
Fred Bruning: How did the other 20 out of 32 properties get there?
Kate Aanenson: I’m sorry, we disagree on that.
Mayor Furlong: We’re talking about this property right now and.
Kate Aanenson: Right, and we don’t know. It could have been a fire pit. It could have been
some of the retaining walls. It could have been the dog pit you know.
Mayor Furlong: Patios.
Kate Aanenson: A lot of these go, correct.
Mark Ambrosen: Excuse me. How long has this ordinance been on the books?
Kate Aanenson: Impervious surface? Since I’ve been here in 1991. Prior to that.
Mark Ambrosen: How long has it been enforced?
Kate Aanenson: It’s always enforced. Sometimes we don’t know if people cut down trees.
Mark Ambrosen: We had a, we had an addition put on about 10 years ago. 11 years ago that
added onto the other side of the house, and there was no inquiry then about the hard cover.
Kate Aanenson: I can’t speak to what the application was, or what review and I’m not sure, if
somebody checked it or not so. I’m pretty confident somebody probably did.
Mark Ambrosen: I was told by a young lady that was taking a lot of this information that the city
didn’t start enforcing this until 2 years ago.
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City Council Meeting - January 12, 2009
Kate Aanenson: No, we asked for the as-built surveys 2 years ago. We’ve always enforced the
25%.
Mark Ambrosen: Well that was the verbology that was used to me.
Councilman McDonald: I was actually on the planning council more than 3 years ago and I
enforced it very strongly so it’s been enforced ever since I’ve been here for 3 years and before
that.
Councilwoman Ernst: Well I think he’s just saying what was told to him.
Mark Ambrosen: That was told to me.
Councilman McDonald: Well I just want to clear the air that the city was.
Kate Aanenson: Mayor, can I get back to the question that was asked? And that was the
addition was the 800 and, 848 square feet. That was the addition that we showed over here.
Fred Bruning: It’s on your previous drawings. You have it I think in blue.
Kate Aanenson: Yeah. So there’s the proposed additions. So to get, yeah. Actually driveway
space to get out of that one garage.
Mayor Furlong: What’s the total square footage of the house, either before or after? Before the
additions?
Fred Bruning: It’s on, I don’t have that paperwork. It’s in the documentation that we sent to the
city as far as those calculations for hard cover. It has the original house.
Kate Aanenson: 2779.
Mayor Furlong: Is the footprint?
Kate Aanenson: Total square footage.
Mayor Furlong: Finished square footage?
Kate Aanenson: That’s the lot size.
Fred Bruning: My recollection is like 2,500 square feet is. I don’t know the exact number but
that would be approximately what.
Mayor Furlong: For a footprint?
Fred Bruning: Footprint, correct. Footprint of the house. Garages, you know etc.
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City Council Meeting - January 12, 2009
Terry Jeffery: Mr. Mayor if I may. Within the packet, wherever we’re at.
Kate Aanenson: It’s on page 4.
Terry Jeffery: Yeah, it says more than 27, 2779 square foot footprint of the home itself.
Mayor Furlong: Okay, thank you. Any other questions? If not, thank you very much.
Appreciate it. Let’s bring it to council for discussion. Try to work through the issues before us.
We’ve got clearly the issue before us is whether or not there’s a hardship. Applicants propose
the shape and topography is the hardship as well as some alternatives. Thank you. I’ll start just
to make some comments. I believe it was at least 2 years ago we talked at length about
impervious surface coverage and ways that that could be mitigated and we spent a number of
times as a council, a lot of the alternatives that were mentioned, we discussed at that time as
well. We didn’t take any action on it but those were discussed. But in any event we had some
alternatives put forth, and I guess I’d be interested in where members of the council are in terms
of the, Councilman Litsey? Thoughts. Comments.
Councilman Litsey: Well I think it’s important to look at it. I think it’s an evolving you know
way to look at things but we’re not there yet. We haven’t really looked at it with enough data
and information and recommendation from staff I think so, I still think we’ve got to kind of look
at it from where we’re at with the ordinance currently stands. I mean that technology’s evolving
and I think we need to move in that direction but we’re not there yet so I don’t know that I can
really consider that at this point.
Mayor Furlong: Okay. Anything else on the request?
Councilman Litsey: Well I think partly the hardship was created obviously, as they put it, from
the addition. It was fine before. They chose to move forward with it knowing that this was in
place. Personally I don’t see any reason to deviate from staff recommendations.
Mayor Furlong: Okay, thank you. Other thoughts? Councilwoman Ernst.
Councilwoman Ernst: Well I’d like to talk about 723 square feet of hard surface that was
installed to prevent erosion. That to me sounds like a hardship. 723 square foot of hard surface,
but it was put there for a reason, and so to me that should, we should look at that in terms of what
do we allow for credit for that. So that’s one of, that’s one point. The other one is, I mean the
whole big issue is runoff. That’s what we’re talking about and we’ve had, this is not the first
time this issue has come back to council to look at. I mean we have a 25% limit of impervious
surface and we have, we have a resident who has come in and they’re saying okay, in order to
compensate that we are willing to do these things and I, what is it? 1, 2, 3, 4, 5, 6, 7 options
here. And in addition to that, which they sound like reasonable options to me. In addition to that
they’re willing to be a test for any of these options. And I know that we have talked about
permeable pavers before. You know can we do a project on that? We haven’t done, I don’t
think we’ve done anything with that yet, but they’re willing to be a test for that. Maybe this is an
opportunity. I don’t know. But I mean they’ve, I think that they’ve given us a lot of information
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where we have some various options and if we would be willing to give them the opportunity to
do that, which I think we should, I would be in favor of granting a variance.
Mayor Furlong: Okay, thank you. Other thoughts? Councilwoman Tjornhom.
Councilwoman Tjornhom: Where do I start? Well I’ve, this is I guess my second term on
council so that means I was on council for 4 years. And prior to that I was on the Planning
Commission and so that dates me quite a bit and I recall reviewing quite a few of these so I know
the ordinance has been enforced for quite some time. What I kind of scratch my head about is, a
lot of times we’ll see these cases come before us and people have started a project or they’ve
completed a project and just didn’t know what was happening. But this is peculiar to me because
the applicant knew that there was a problem and so now they’re coming before us asking us to
make an exception to the rule even though construction has already started. I always look at
these cases for hardship and I look at that quite earnestly and I don’t see the hardship. I think
they have reasonable use of their property and the hardship I think, or the problem was created
with the addition and the beginning of construction on their property. And so because of that I
am going to recommend denial of this variance request.
Mayor Furlong: Thank you. Councilman McDonald.
Councilman McDonald: Well I too have a lot of experience, especially in this area of Lake
Minnewashta because a lot of the homes you’re talking about we’ve had quite a few people come
before us. One guy I know wanted to build a 3 car garage. We would not allow it because again
he took over the impervious surface. Compromise came back. He got a 2 car garage and I think
that was fair use of the property. The issue about the pavers and using this as a test case, I don’t
think you want the city out there on a constant basis monitoring things. The Arboretum about 3
years ago came before the Planning Commission and talked to us about all this. It was all in a
study phase and they had a lot of promising ideas but they had not brought anything to the city
yet to say what was going to work so I think we leave that to them. Yeah, hardship unfortunately
is a legal term that is ambiguous. I would agree with you, but it’s that way for a reason because
it applies on a case by case basis and in this particular case, whereas you bring up a lot of
exceptions to other properties but that’s those properties and I think we would have to look at
them on a case by case basis and determine it. Here, I don’t see the hardship. I mean based upon
everything that we’ve done in the past. We’ve been very consistent as far as granting variances.
They’re not granted unless certain conditions are shown and those conditions have not been
shown here. So at that point I would not be in favor of granting the variance either.
Mayor Furlong: Okay, thank you. I think some of my thoughts are consistent in that the issue
before us here tonight on this request is whether or not there’s a hardship. Does the shape and
topography of the lot, which has been put forth, create a hardship. Being able to back down,
back out, back down the driveway. Is that a hardship because of the length of, and that gets back
to the shape of the lot. Some of the other items proposed I don’t think are necessarily hardships.
I think they are preferences in terms of property use. The issue as far as, and Councilwoman
Ernst you brought up the 723 square feet that was presented. One of the things that we have
done over the last year or so, when we look at and you can see it. I don’t know if this is still
showing on the screen or not but this lake view picture, just leave it right there. You can see that
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there are retaining walls there that have been put up, and I’m sure that’s part of the erosion
control because it changes the slope of the lot by leveling out a certain portion. The retaining
walls we’ve been pretty clear are not considered part of the impervious surface coverage, even
though vertically they might be because what they effectively do is they do change the slope and
so they minimize runoff. What the issue here is, that on top of the retaining wall is a paver patio
and that’s the impervious surface coverage. I absolutely think paver patios are nice and that
popular in use but that’s where the impervious surface is coming from is how is the ground
covered above the retaining wall for that. You know what it gets back to and Mr. Bruning
started his comments about reasonable use of the property and we can talk about what the
definitions are, but my sense is, and I think it was mentioned that there was reasonable use of this
property prior to the addition being started. The addition might be preferred but the reasonable
use was already there and while they were slightly over the 25%, my sense is it came from some
of these minor additions that occurred over the years. Whether it’s the dog kennel. The pad for
the gas grill. The shed. The patios. I mean all of these are just normal additions that occur over
someone’s use of their house over a lifetime and use and enjoyment and there was just kind of an
incremental expansion that would not necessarily be caught by the city process simply because
up until recent years there was no need to get a permit for putting in a patio or for doing some of
these other things. And so there was no check that might have occurred. I don’t know how
many of these occurred before or after the last addition but when I step back and from a bigger
picture is, I think from what I’ve heard my fellow members of council say is, is there was
reasonable use before the additions. The additions go forward knowing full well that that would
put them in an overage. It would make them more out of compliance than what they already
were, and so I don’t see where the hardship is. If there was reasonable use before with the shape
and topography, how can there, how can there be reasonable use after when there’s been an
addition? I think it is self created from that sense and so why I’d like to allow people to expand
and improve their properties as they want, you know we have to do it within the confines of the
ordinance and treat people fairly. If we have other property owners that have exceeded that, you
know there have been a number of times when we have after the fact variance requests. Or
something’s been put in without the knowledge. They find out they’ve got to go through the
process. Here staff was working to try to accommodate the request of the property owner and to
move forward quickly, knowing that they had this in place. So this was, and I think
Councilwoman Tjornhom mentioned it. This wasn’t an after the fact. This was known going in
and I just, I can’t see the hardship here given the fact that I think they had reasonable use before
and what’s creating this hardship now is the desire to expand. So unfortunately in this case I
can’t see moving forward. There are a lot of additional factors that would suggest that we should
move forward. It’s a lakeshore property. One of the biggest reasons we have these storm water
ordinances in place is to protect runoff into our lakes. If we’re going to look at a test case or
something like that, I’d rather do it as far away from a lake as we could. Not on a lake. And
while I appreciate the property owner willing to do that, and over time we may change our
ordinance to include some of those components and if we do then those ordinance would apply
across the city, and all property owners will be able to modify their properties as they saw fit and
take advantage of or work within whatever the ordinances were so, I’ve gone on a little bit here
but it’s never enjoyable to say no to somebody for when they’re trying to improve and expand
their enjoyment of their property. So that’s why I wanted to talk a little bit more but from
evaluating the facts that have been presented, and even with the alternatives this evening, I can’t
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see supporting the variance request. Any other thoughts or comments? If not is, would
somebody like to make a motion?
Councilwoman Tjornhom: I’ll make the motion.
Mayor Furlong: Thank you Councilwoman Tjornhom.
Councilwoman Tjornhom: I make a motion the Chanhassen City Council denies Planning Case
#08-24 for a 3.7% hard surface coverage variance to exceed the 25% impervious coverage
limitation by 1,038 square feet on Lot 7, Block 1, Maple Ridge Addition, with conditions 1
through 4 on pages 8 and 9 on the staff report and the adoption of the attached Findings of Facts
and Action.
Mayor Furlong: Thank you. Any modification to the motion?
Kate Aanenson: Can I just for clarification? What I heard from the council is that they had
discretion of what they wanted removed to get to that percentage so we can still work with the
applicant on that?
Mayor Furlong: I think that would fit within this motion as it’s been proposed. Okay, thank
you. Is there a second?
Councilman Litsey: Second.
Mayor Furlong: Made and seconded. Any discussion on the motion?
Councilwoman Tjornhom moved, Councilman Litsey seconded that the Chanhassen City
Council 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, except Councilwoman Ernst who opposed, and the motion carried with
a vote of 4 to 1.
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