Application
GARY C. BHOJWANI
3301 Shore Drive. Excelsior, MN 55331-7815 . 952.474.4995
gbhojwani@msn.com
April 17,2009
VIA COURIER
Chairperson and Members of the
Chanhassen Planning Commission
City of Chanhassen
c/o Mr. Terry Jeffery
7700 Market Boulevard
Chanhassen, MN 55317
CITY OF CHANHASSEN
RECEIVED
Re: Bhojwani Dock Variance Request
APR 1 7 2009
Dear Chairperson and Members:
CHANHASSEN PLANNING DEPT
1 attach herewith the following documents in pursuit of our variance request:
1) A $450 check payable to the City
a) $200 for the variance;
b) $50 for the recording fees;
c) $200 (refundable) for the notification signs;
d) 1 understand that 1 will also owe $3 per recipient for the required mailing notification. Once the
final list of recipients is determined, please let me know how much we owe; and
e) Please let me know if there are other fees 1 may have missed.
2) The completed development review application f1 pae:e). Some of the sections did not seem relevant,
bu t please let me know if 1 missed something.
3) A plot plan (1 pae:e) showing our property lines, etc. (I received same from the City.) 1 have hand-
drawn the approximate location of the dock on the plot plan; that notation is obviously not to scale.
4) A drawing showing the total dimensions of the dock itself (1 pae:e).
5) A written summary of the responses to Questions 5 and 6a. - 6f. (3 pae:es) from the page entitled
"City of Chanhassen - Variances".
6) A letter from the contractor (3 pae:es) containing various details and a schematic of the dock.
7) A letter and a legal citation from our attornev (12 pae:es).
The instructions requested 16 copies and some type of electronic format. 1 understand that those
requirements are relevant for more substantive requests (ie, subdivisions). If 1 have misunderstood
and you need me to also satisfy those requirements, please do let me know. The best way to reach me
is on my cell phone (612.345.0930). 1 may also be reached during business hours at: 763.765.6707,
via facsimile at 763.582.6102, or via e-mail atGary.Bhojwani@allianzlife.com.
Thank you for your time.
S~.U1cer : _ u
~.
Gary C. Bhojwani
r
/GCB
Attachments
DOCK_Cover Letter_0417.doc
Planning Case No. 09 ~ 07
CITY OF CHANHASSEN
7700 Market Boulevard - P.O. Box 147
Chanhassen, MN 55317 - (952) 227-1100
CITY OF CHANHASSEN
RECEIVED
DEVELOPMENT REVIEW APPLICATION APR 172009
PLEASE PRINT
Applicant Name and Address:
G~ry c. Rhojwani
3301 Shore Drive
Excelsior, MN 55331
Contact:
Phone: 8i2 345-0930 Fax:
Email: gary.bhojwani@allianzlife.com
Owner Name and Address':
Gary c. Rhojwani
3301 Shore Drive
Excelsior, MN 55331
Contact:
Phone: 612 345-0930 Fax:
Email: gary.bho;wani@allianzlife.com
, '.J!.;;r
NOTE: Consultation with City staff is reauired prior to submittal, including review of development
p~ns ,
Comprehensive Plan Amendment
Temporary Sales Permit
Conditional Use Permit (CUP)
Vacation of Right-of-Way/Easements (VAG)
Interim Use Permit (IUP)
x
Variance (VAR) f).-oo
Non-conforming Use Permit
Wetland Alteration Permit (WAP)
Planned Unit Development*
Zoning Appeal
Rezoning
Zoning Ordinance Amendment
Sign Permits
Sign Plan Review
X Notification Sign - $200
(City to install and remove)
Site Plan Review (SPR)*
x ~{'V for Filing Fe~~orney Cost**
.1..$5O-CUP/SPRNA~AP/Metes & Bounds
- $450 Minor SUB
. _ CCJ
TOTALFEE$ttsO- c.t--#:: -:::5009
Subdivision*
An additional fee of $3.00 per address within the public hearing notification area will be invoiced to the applicant
prior to the public hearing.
*Sixteen (16) full-size folded copies of the plans must be submitted, including an 8%" X 11"
reduced copy for each plan sheet along with a diaital COpy in TIFF-Group 4 (*.tif) format.
**Escrow will be required for other applications through the development contract.
Building material samples must be submitted with site plan reviews.
NOTE: When multiple applications are processed, the appropriate fee shall be charged for
each application.
PROJECT NAME:
Bhojwani Dock
LOCATION:
3301 Shore Drive. Excelsior. MN 55331
LEGAL DESCRIPTION AND PID:
/I 9 <;r. 7""""<10
2.'5"-~/bc090
TOTAL ACREAGE: ~
WETLANDS PRESENT:
x
YES
NO
PRESENT ZONING:
RSF
REQUESTED ZONING:
N/A
PRESENT LAND USE DESIGNATION: Residential
REQUESTED LAND USE DESIGNATION:. N / A
REASON FOR REQUEST: To allow completion of a permanent dock that is 7' Feet
wide (vs. 25 Feet wide)
FOR SITE PLAN REVIEW: Include number of existing employees: N / A
and new employees: N/ A
This application must be completed in full and be typewritten or clearly printed and must be accompanied by all information
and plans required by applicable City Ordinance provisions. Before filing this application, you should confer with the
Planning Department to determine the specific ordinance and procedural requirements applicable to your application.
A determination of completeness of the application shall be made within 15 business days of application submittal. A written
notice of application deficiencies shall be mailed to the applicant within 15 business days of application.
This is to certify that I am making application for the described action by the City and that I am responsible for complying with
all City requirements with regard to this request. This application should be processed in my name and I am the party whom
the City should contact regarding any matter pertaining to this application. I have attached a copy of proof of ownership
(either copy of Owner's Duplicate Certificate of Title, Abstract of Title or purchase agreement), or I am the authorized person
to make this application and the fee owner has also signed this application.
I will keep myself informed of the deadlines for submission of material and the progress of this application. I further
understand that additional fees may be charged for consulting fees, feasibility studies, etc. with an estimate prior to any
authorization to proceed with the study. The documents and information I have submitted are true and correct to the best of
my knowledge.
Signature of Fee Ow
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Date
'fIb lor
Date
G:\PLAN\Fonns\Development Review Application.DOC
Rev. 1/08
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CITY OF CHANHASSEN
RECEIVED
APR 1 7 2009
CHANHASSEN PLANNING DEPT
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5) WRITTEN DESCRIPTION OF VARANCE REQUEST:
This is a variance request to allow completion of construction for a dock on the shoreline
of 3301 Shore Drive. (Construction of the proposed dock has already commenced. All
support pilings were installed during the winter.). Although it complies with all DNR
standards and the City's standard for length, the dock deviates from the maximum
width standards of the City of Chanhassen (71 feet vs. 25 feet).
6) WRITTEN JUSTIFICATIONS BASED ON STIPULATED CRITERIA:
a) The literal enforcement of this chapter would ca:use undue hardship.
i) TRUE.
ii) When considered with the scale of the property, a dock of this size is proportional
in scale, a long distance from any neighbor, and allows us to enjoy reasonable use
of the property's extensive lakeshore.
iii) We purchased this home in 2007. The prior owner kept two unconnected
seasonal docks on the property which are of a size comparable to the current
permanent dock and which were configured in a manner that included a swim
platform/ seating area. Those seasonal docks were included in the 2007 purchase
of the home and were actually "in the water" before we physically moved into the
home in May, 2007. We understand that the prior homeowner maintained this
dual dock configuration for many years prior to our possession of the property
and we have continued to use the docks in the two years during which we have
owned the property. We never received a complaint from any neighbor and had
no reason to believe we were in violation of any ordinance.
iv) The new permanent dock has 3 connected boat slips. We already own 3 boats. (If
we are required to reduce or remove the permanent dock, what should be done
with the boats that are already owned?)
v) Removal or reduction of the current dock plans would result in significant and
unrecoverable expense ($75,000+) for the homeowner and the contractor.
b) There are unique conditions on our property that are not present on other
properties within the same zoning classification.
i) TRUE.
ii) The subject property is extremely unique. We believe that there are no other
privately owned properties of similar scale and shape in the City of Chanhassen.
This property consists of:
(1) Over 4 acres; and
(2) A peninsula with over 1260 feet of shoreline. (Presently we maintain
approximately 90% of the shoreline in a natural state, unburdened by docks,
piers, or other improvements. In effect, 90% of our shoreline is already
dedicated to preserving local wildlife, wetlands, cat-tails, etc.)
c) The purpose of the variance is not based upon a desire to increase the value or
income potential of the parcel of land.
i) TRUE.
ii) The variance is based upon a desire to allow us to maintain past levels of use
along the shoreline and to have a centralized location for our watercraft (versus 2
unconnected docks). We have been good neighbors in the past and intend to
continue being good neighbors. We seek only to enjoy our property in a way that
is commensurate to the scale of the land and length and character of the
shoreline we own.
d) Is the alleged difficulty or hardship self created?
i) The hardship stems primarily from the unique character of the property.
However, the hardship has been made more severe and more immediate as a
result of a legitimate and unintentional misunderstanding.
(1) The contractor sought and received guidance from the City of Chanhassen in
March, 2008 that he may proceed with construction of such a dock. Based on
this advice to the contractor, we paid a deposit in 2008 of 1/3rd the total cost
($25,000).
(2) The commencement of actual construction of the dock began in January,
2009, at which time we paid the next installment to the contractor.
(3) The Minnetonka-based contractor (Tom Niccum of Minnetonka Portable
Dredging) is well known in this field and has long experience constructing
other such docks in the area. This design and construction is in compliance
with the regulations of the DNR, which the contractor thought was the sole
governing entity over the construction specifications.
(4) We relied in good faith on the reputation, expertise and experience of the
contractor in moving forward with this significant expense.
ii) The language in the subject provisions of the city code now being invoked by the
City of Chanhassen is not clear. That lack of clarity, combined with the March,
2008 guidance received by the contractor from City personnel, furthered our
contractor's belief that the dock could be constructed without a permit from the
City of Chanhassen so long as it was in compliance with DNR standards (which it
is). Please see also the attached letters from our attorney and contractor.
e) The granting of the variance will not be detrimental to the public welfare or
injurious to other land or improvements in the neighborhood in which the
parcel is located.
i) TRUE.
ii) The proposed dock is located more than 600 feet from our nearest neighbor.
iii) Construction of a permanent dock allowing for the docking of 3 boats is
commensurate with the scale of both the home and considerable shoreline of the
property (over 4 acres and 1260 feet).
iv) Boating will not be impeded by this dock. The proposed dock does not extend
beyond the permissible 50 feet into the lake. (The width of the dock, not the
length, is what is at dispute.) Furthermore, the proposed dock has been located
on a portion of the peninsula and at a proximity to the shoreline that would not
otherwise allow for regular boating.
v) Fishing and wildlife will not be impeded by this dock. We have already dedicated
approximately 90% (over 1,000 feet) <?f our shoreline to the preservation of local
wildlife, wetlands, cat-tails, etc.
f) The proposed variation will not impair an adequate supply of light and air to
adjacent property or substantially increase the congestion of the public streets
or increases the danger of fire or endanger the public safety or substantially
diminish or impair property values within the neighborhood.
i) TRUE.
We submit this Application without prejudice to the rights we have under Minnesota law as
owners of the property. Mr. Tom Niccum (our contractor) has prepared a briefletter in
support of this Application. We have asked our Attorney, Mr. Peter W. Johnson, to review
the background facts, the wording of your ordinances, and the legal effect of the "Stop Work
Order" that was issued. He has prepared an opinion letter which is also submitted
herewith. We ask that the letters from Tom Niccum and Peter Johnson be considered by
you in your deliberations and that they are made a part of the record in this proceeding.
Apr 17 09 09:34a
p. 1
Minnetonka Portable Dredging, Inc.
50 West Lake Street
Excelsior, MN 55331
(952) 474-9454
April 16, 2009
Chairperson and Members of the
Chanhassen Planning Commission
City of Chanhassen
7700 Market Boulevard
P. O. Box 147
Chanhassen, MN 55317
Re: Permanent dock being constructed by Gary and Kelli Bhojwani
at 3301 Shore Drive in Chanhassen
Dear Chairperson and Members:
I am President of Minnetonka Portable Dredging. Our company was hired to construct a
permanent dock for the Bhojwanis on their property at 3301 Shore Drive in Chanhassen.
Attached is a schematic drawing of thedocl< configuration I prepared showing the proposed
configuration for the dock. The dock is designed to be 50 ft in length and is five feet wide over
most of its length. The swim platform is 8 feet wide and 12 feet long. The dock has three slips
each having an interior measurement of 13 ft x 32 ft. The dock layout would not generally be
considered or referred to as an "L or T shaped dock".
I spoke to Chanhassen City staff about the project in the spring of 2008. I intended to buy
materials for the project even before the design had been finalized. I described the type of dock
to a planning staff person in very general terms. After that conversation, I was left with the
impression that Chanhassen ordinances would allow construction of the planned dock. Near
the end 0'2008, a specific plan for the dock was agreed to with the Bhojwanis. I then reviewed
the Chanhassen ordinances before starting construction of the dock. Based on my review, I
concluded that construction of the docK did not require a city permit.
We did not intend to violate Chanhassen's ordinances. When construction was commenced, I
believed that the only applicable restriction on dock width were the setbaCks from the property
boundaries abutting other property owners and length was restricted to SO feet.
Minnetonka Portable Dredging began constructing the dock from the lake ice in January of
2009. Neither Minnetonka Portable Dredging nor the Bhojwanis received any objection from the
City until all machine driven piles had been installed for the complete dock layout. In mid March
city staff contacted me and requested that I submit a permit application to the City. After we
complied with that request. the city staff visited the site and issued the Stop Work Order.
I met with Sharmeen AI Jaff and Terry Jeffrey on or about MarCh 23, 2009. r explained that
without the structural strength provided by bracing and decking, the unsupported piles would
Apr 17 09 09:34a
p.2
Chairperson and Members of the
Chanhassen Planning Commission
April 16, 2009
Page 2
likely be damaged by wind-blown ice. I requested permission to complete the bracing and
decking. That request was denied. I then requested permission to put bracing and dec~ing on
the portion of the dock that city staff acknowledged did not require a city permit. . Staff confirmed
that the request seemed reasonable but indicated they could not withdraw any aspect of the
Stop Work Order without first confirming their authority to do so. The city staff agreed to
promptly respond to my request.
It was not until April 6, that I finally received a response from the City. Unfortunately, while I
honored the City's Stop Work Order and waited for permission to continue construction, shifting
ice caused significant damage to several of the unsupported piles.
The language in the city ordinance (6-26(c)) restricts crOss-bars to 25 feet of width only on "T
and L shaped docks" and then provides that the dock may not encroach into the dock setback
zone defined as a buffer ~one between abutting properties along the shoreline. Other dock
regulators in the area (such as the DNR or the LMCO) regulate the width of docks solely or
primarily in reference to "side-yard setbacks" (i.e. setbacks from abutting lakeshore properties).
As the ordinance is written. both experienced /akeshore property owners and professionals in
the trade would likely interpret the ordinance just as I did. Most such readers of your ordinance
would not conclude that the language restricting the length of the cross-bar on a WT or l shaped
dock" was intended to limit the width of all docks, regardless of configuration,
City staff has argued that Section 6-26(c) is clarified by the Definitions found at Ordinance
Section 1-2. But "cross-bar" and "dock cross-bat" are defined to apply only on "l shaped and T
shaped docks". The terms "T shaped dock" and "L shaped dock" are not defined by the
ordinance. There is no restriction in the ordinance on overall width of dock structures that
applies to all docks regardless of configuration.
Our company has been engaged in business locally for many years. We proceeded with
construction in good faith. The Bhojwanis' dock is comparable to many of the docks we've
constructed for residential property owners over the years. Demolition and removal of the dock
will not benefit any abutting owner or any public interest. I request that the Planning
Commission recommend approval of the variance requested by the Bhojwanis. Thank you,
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PETER W. JOHNSON
ATTORNEY AT LAW
This address by appointment only:
2305 COMMERCE BOULEY ARD
MOUND, MINNESOTA 55364
Please direct all correspondence/inquiries to:
15250 W AYZAT A BOULEY ARD, SUITE 103
WAYZATA, MINNESOTA 55391
TELEPHONE (952) 475-1907
FACSIMILE (952) 476-0007
EMAIL -PETERJ@PETERWJOHNSON.COM
DIRECT DIAL: (952) 475-1907
CELLULAR: (612) 741-1907
April 16, 2009
Chairperson and Members of the
Chanhassen Planning Commission
City of Chanhassen
7700 Market Boulevard
P. O. Box 147
Chanhassen, MN 55317
Re: Permanent dock being constructed by Gary and Kelli Bhojwani
at 3301 Shore Drive in Chanhassen
Dear Chairperson and Members:
I represent Gary and Kelli Bhojwani concerning their application for a variance allowing them to
complete construction of a permanent dock being constructed by Minnetonka Portable Dredging
on their property at 3301 Shore Drive. I also represent Minnetonka Portable Dredging.
This letter is submitted as a supplement to the Bhojwanis' Variance Application and will discuss
the legal principles that should inform the Planning Commission's recommendation to the City
Council.
The important background facts are detailed in a separate letter from Tom Niccum of
Minnetonka Portable Dredging. Most importantly, Mr. Niccum reviewed the Chanhassen
ordinances before commencing construction of the dock and he concluded in good faith that
construction of the dock did not require a city permit.
The dock is designed to be 50 ft in length and is five feet wide over most of its length. The swim
platform is 8 feet wide and 12 feet long. The dock has three slips each having an interior
measurement of 13 ft x 32 ft. Its total width is 71 feet.
All of the piling had been installed before either the Bhojwanis or Minnetonka Portable Dredging
were contacted by the City. Both the Bhojwanis and Minnetonka Portable Dredging have
cooperated with the City and have honored the Stop Work Order that was issued on site. They
did so notwithstanding the risks posed by the shifting lake ice. While awaiting a response to Mr.
Niccum's request that the Stop Work Order be amended to allow necessary bracing and
Chairperson and Members of the
Chanhassen Planning Commission
April 16, 2009
Page 2
decking, the dock was damaged by shifting lake ice during the spring thaw.
The variance requested by the Bhojwanis is supported by a very real hardship that is not of their
creation. They purchased their home two years ago and during their ownership they continued
to use two seasonal docks that had been in use by the previous owner, apparently without
complaint. The seasonal docks that were on the Bhojwani property during prior years had little
or no little impact on abutting property owners because the docks were located at a
considerable distance from the common property lines. The new dock is even more isolated
from abutting properties.
The scientific literature has established that some environmental consequences are associated
with the use of docks and piers on our northern lakes. A bibliography of reviewed materials can
be made available on request. According to the literature, the impact of the "shadow" cast by a
typical dock has the affect of diminishing "aquatic plant abundance" resulting in a loss of
macrophyte habitat directly under the pier. Environmentalists are rightly concerned that
allowing uncontrolled proliferation of residential docks along a section of shoreline might cause
unanticipated consequences. The main concern voiced in the scientific literature is directed at .
uncontrolled proliferation and density of adjacent dock uses overall. I found no consensus on
what concentration of docking structures would result in a measurable environmental impact.
Importantly, I have found no studies in the literature showing a detrimental environmental impact
from a single dock in a location separated from other structures.
There is no consensus on how to reduce the expected impact from a concentrated proliferation
of docks. Shorter docks will bring power boats closer to shore, causing disruption of bottom
sediments. Boats stored in the water cast more of a shadow on the bottom and cause more
disruption of plant growth patterns compared to boats stored on a lift. The shadow cast by an
elevated docks has less impact than a dock constructed just above the waterline. Even the
environmental community seems to acknowledge that an isolated docks or pier are a relatively
benign human activity. That said,. applying the City's 25 foot dock width limitation to all
residential property, regardless of scale or lineal feet of shoreline imposes an unreasonable
burden on a property owner with 1260 feet of shoreline and may actually over time result in land
uses which are detrimental to the environment. If a property owner can't use more than 25 feet
of shoreline for docking there will be increased development pressure to split or divide larger
riparian parcels. Chanhassen's interest in limiting the proliferation will be well served by
granting the Bhojwanis the requested variance.
The City's ability to use and enforce a "one size fits all" regulation is an efficient and reasonable
approach to regulation only if exceptions are allowed for unique circumstances which allows
exceptions to avoid undue hardship. The Bhojwanis have requested that they be allowed to
use 71 lineal feet of shoreline for docking purposes. The remaining 1189 lineal feet of their
shoreline will continue to provide an unburdened natural habitat for aquatic animals and plants.
ANALYSIS
The Bhojwanis' property consists of almost 3.9 acres and has more than 1,000 lineal feet of
shoreline on Minnewashta Lake. The partially constructed dock is located along the eastern
shore at a substantial distance from either of the two properties which adjoin the Bhojwani's
Chairperson and Members of the
Chanhassen Planning Commission
April 16, 2009
Page 3
property. At that point in the shoreline, the water depth accommodates a shorter dock and
ensures that any activities at the dock are buffered from abutting property owners by almost 500
feet of unused shoreline in either direction. (In fact, because the property is a peninsula and the
dock is located on the east side, the dock is not even visible to the neighbors that live to the
Bhojwanis west side. As for the neighbors that live to the east of the Bhojwanis, there is at least
300 feet of shoreline between the dock and the eastern-most border of the Bhojwanis property
line. In addition, there is a plot of open land between where the Bhojwanis eastern-most
property line ends and the east neighbor's property begins. The net effect is that there is
approximately 500 feet of shoreline between either edge of the dock and the Bhojwanis nearest
neighbor to either side.)
The relevant provisions of the Chanhassen Ordinances are Sections 6-4 and 6-26. Section 6-
4(a) provides that no permit is required for any dock that is erected or maintained in compliance
with the other provisions of chapter 6. Section 6-26 provides in relevant part:
"(a) No more than one dock shall be permitted on any lakeshore site.
(b) No dock shall exceed six feet in width and no dock shall exceed the
greater of the following lengths:
(1) 50 feet; or
(2) The minimum straight-line distance necessary to reach a water
depth of four feet.
(c) The width (but not the length) of the cross-bar of any "T" or "L" shaped
dock shall be included in the computation of length described in the preceding
sentence. The cross-bar of any such dock shall not measure in excess of 25 feet
in length. No dock shall encroach upon any dock setback zone; provided,
however, that the owners of any two abutting lakeshore sites may erect one
common dock within the dock setback zone appurtenant to the abutting
lakeshore sites, if the dock is the only dock on the two lakeshore sites and if the
dock otherwise conforms with the provisions of this chapter."
THE STATUTE IS IMPERMISSIBLY VAGUE AS ENFORCED
The ordinance text is poorly drafted, particularly given the interpretation claimed by city staff.
The ordinance includes no clear language limiting the complete or overall width of any or all
docks. To support the city's interpretation, the ordinance should include clear language that
putting the public on notice that no dock shall be more than 25 feet wide. In contrast, the
language in the city ordinance restricts cross bars to 25 feet of width on only on 'T and L
shaped docks" and then provides that the dock may not encroach into the dock setback zone
defined as a buffer zone between abutting properties along the shoreline. Under Minnesota
law, an ordinance is interpreted to give the words used their "common and well understood
meaning". Few people with experience in selling, designing or installing docks would
understand the language of the ordinance to prohibit construction of the dock designed (and
partially constructed) for the Bhojwanis by Minnetonka Portable Dredging.
Chairperson and Members of the
Chanhassen Planning Commission
April 16, 2009
Page 4
It is highly relevant that other dock regulators in the area regulate the width of docks solely or
primarily in reference to "side-yard setbacks" (Le. setbacks from abutting lakeshore properties).
As drawn, both experienced lakeshore property owners and professionals in the trade would
likely interpret the ordinance just as Tom Niccum did. Most such readers would not conclude
that the language restricting the length of the cross-bar on a T or L shaped dock was intended
to limit the width of all docks, regardless of configuration.
City staff has argued that Section 6-26(c) is clarified by the Definitions found at Ordinance
Section 1-2. The relevant sub-sections read as follows:
"Cross-bar means that portion of any L shaped or T shaped dock which is
approximately parallel in alignment to the adjoining shoreline or ordinary high
water mark. See Dock Cross-bar. (6)
Dock cross-bar means that portion of any "L" shaped or "T" shaped dock which is
approximately parallel in alignment to the adjoining shoreline or ordinary high water
mark. See Cross bar. (20)"
These sections do not add clarity. The terms "cross-bar" and "dock cross-bar" are both
expressly defined to apply only on L shaped and T shaped docks. The terms "T shaped dock"
and "L shaped dock" are not defined by the ordinance. There is no restriction in the ordinance
on overall width of dock structures that applies to all docks regardless of configuration.
The City of Chanhassen is obligated to enforce its ordinances in a reasonable manner. An
ordinance that mandates a permit for construction must be especially clear. The City has no
right to order a valuable improvement to real property demolished based upon an ordinance that
doesn't put the public on notice that a permit for the construction was required. Similarly, a city
has no right to order construction stopped at an arbitrary point during construction when doing
so exposes the improvement to known hazards.
Whether an ordinance is sufficiently clear is considered in the context of the specific fact
situation presented. So while the Chanhassen ordinance may be sufficiently clear for a property
owner who intends to construct an L shaped dock, it is impermissibly vague for a property
owner constructing a dock with multiple dock slips on a parcel with extensive shoreline and no
encroachments into the setback zones. I'm confident that our courts would find the regulation
unconstitutional as is now being applied to the Bhojwani dock.
According to Geraen. et. a/. vs City of Mantorville, A05-1717, Ct. of App. Published (2009) there
are three primary rules of construction that govern the interpretation of a city ordinance. First,
ordinances are given their plain and ordinary meaning. Frank's Nurserv Sales. Inc., 295 N.W.2d
at 608. Second, ordinances should be construed strictly against a municipality and in favor of a
landowner. Id. at 608-09. Third, ordinances must be considered in light of their underlying
policy goals. Id. at 609. The Court added that "rules that govern the construction of statutes are
applicable to the construction of ordinances." citing Smith v. Barrv. 219 Minn. 182, 187, 17
N.W.2d 324, 327 (1944).
The ordinance was interpreted according to its plain and ordinary meaning by Tom Niccum. He
Chairperson and Members of the
Chanhassen Planning Commission
April 16, 2009
Page 5
believed that the dock could be constructed without a permit from the City of Chanhassen.
Now, support piers for the entire dock structure have been installed at considerable expense.
The Bhojwanis have relied on Mr. Niccum's expertise. All parties have acted in good faith. The
parties do not wish to argue or litigate over the conflicting interpretations. However, it the
Planning Commission, in making its recommendations, should take into account that the
ambiguities in the Chanhassen ordinance contributed to the hardships now faced by the
Bhojwanis.
IMPERMISSIBLE RESTRICTION ON RIPARIAN RIGHTS
Chanhassen has interpreted its ordinances to restrict the Bhojwanis' docking rights to a single
25 foot wide dock on a property with more than a thousand feet of shoreline. Clearly, if the City
is unwilling to permit exceptions to its "one size fits all" approach to regulation, the Bhojwanis'
ability to use and enjoy their riparian shoreline will be significantly impacted. The City has not
identified any compelling or important public interest that is protected by such a draconian
restriction.
Minnesota's property laws have consistently protected the rights of riparian owners to the use
and enjoyment of their riparian shoreline. The BhOjwanis' riparian property rights may be
regulated by the City of Chanhassen, but such regulations must protect an important public
interest and must be carefully tailored so as not to impose unreasonable regulation on the
Bhojwani's use and enjoyment of their riparian shoreline. A recent case decided by the
Minnesota Court of Appeals is right on point. I've attached a copy of the Court's decision in
Lake Minnetonka Conservation District vs Cannina. A05-1811 Mn. Ct. App. Unpublished (2006).
In that case, the Court of Appeals reviewed enforcement of a "one size fits all" docking
regulation by the Lake Minnetonka Conservation District (the "LMCD"). The Court struck down
the LMCD's effort to impose a single rigid standard on all lakeshore homeowners. The Court
found that the LMCD had impermissibly restricted a property owner's riparian rights by failing to
grant a variance. Specifically, the Court ruled that the LMCD's strict application of its dock
regulations and its reluctance to consider "the equities involved" seriously compromised the
property owner's riparian rights. In reaching its decision, the Court of Appeals relied on well
established precedents, stating:
"The owner of riparian land enjoys the right of exclusive access to water
that is directly in front of his or her waterfront property, and "title extends
to the low-water mark." State. bv Head v. Slotness, 289 Minn. 485, 487,
185 N. W .2d 530, 532 (1971). Riparian rights include the right to build and
maintain suitable "wharves, piers, landings, and docks on and in front of'
riparian land to the point of navigability. /d.; State v. Korrer, 127 Minn. 60,
71-72, 148 N.W. 617, 622 (1914). A riparian owner "has a right to make
such use of the lake over its entire surface, in common with all other
abutting owners, provided such use is reasonable and does not unduly
interfere with the exercise of similar rights on the part of other abutting
owners." Johnson v. Seifert, 257 Minn. 159, 169, 100 N.W.2d 689, 697
(1960)."
Chairperson and Members of the
Chanhassen Planning Commission
April 16, 2009
Page 6
The decision in LMCD vs Canning. Id., is an unpublished case. However, given the clear
precedents supporting its decision, the Supreme Court properly refused to review the ruling.
Consequently, the case confirms the that owners of riparian shoreline are still entitled to a
reasonable use of their shoreline for docking and that those rights extend out to the point of
navigability.
I've not yet undertaken extensive research to identify properties in Chanhassen that may be
comparable to the Bhojwanis' property. However, even a cursory review of aerial maps
confirmed that the Bhojwanis have an exceptionally large lake lot, with perhaps more natural
shoreline than any other residential property in the City (except Prince, who owns about 200
acres with riparian shoreline along the shoreline of 86 acre Lake Lucy). While the property
owned by Prince has extensive shoreline, it is located on a very small lake. In contrast, the
Bhojwanis' property abuts the largest lake in Chanhassen. A significant percentage of
Minnewashta's shoreline is publicly owned park land or owned by the Girl Scouts. Those large
tracts are not likely to have docks or piers constructed at intervals along the shore comparable
to the areas that are in residential use.
While the typical lake lot in the city may have only one hundred feet of lakeshore, the Bhojwanis
are able to buffer their neighbors with a dock setback area that is almost 500 feet wide. This is
a situation where "one size fit all" regulation is impermissibly restrictive when applied to the
property of Gary and Kelli Bhojwani.
The City staff have been reluctant to state the purpose and intent of its docking ordinance. The
ordinance is silent on the issue. I conclude the ordinance is intended to limit the size and scale
of a dock that can be constructed on a single residential site so that one owner's uses do not
impose a burden on his neighbors or put an undue burden on the community's natural
. resources. Because the property at 3301 Shore Drive has extensive shoreline and is large in
comparison to other properties in the City, there is no likelihood that the public interest or any
neighboring property owner will be prejudiced by allowing the proposed dock to be constructed
on the site.
Based on the foregoing, I have advised Gary and Kelli Bhojwani that they are entitled to a
variance from the ordinance. That is true regardless of whether the ordinance is vague and is
easily supported solely upon the degree of hardship imposed on them as the owner of 1260 feet
of shoreline.
My clients have tried to work this out with the City staff. City staff has been courteous and seem
to accept that both the Bhojwanis and Tom Niccum have acted in good faith. As counsel for the
applicant, I respectfully submit that under the facts present, the Bhojwanis' variance should be
recommended for approval. Thank you.
Lake Minnetonka Conservation District, Respondent, vs. Miles B. Canning, et ai., Appell... Page 1 of 6
This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. f 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
A05-1811
Lake Minnetonka
Conservation District,
Respondent,
vs.
Miles B. Canning, et aI.,
Appellants.
Filed June 27,2006
Reversed and remanded
Klaphake, Judge
Hennepin County District Court
File No. 05-1854
George C. Hoff, Justin L. Templin, Hoff, Barry & Kuderer, P .A., 160 Flagship Corporate Center,
775 Prairie Center Drive, Eden Prairie, MN 55344-7319 (for respondent)
Thomas J. Radio, Hinshaw & Culbertson LLP, 3100 Campbell Mithun Tower, 222 South Ninth
Street, Minneapolis, MN 55402 (for appellants)
Considered and decided by Klaphake, Presiding Judge, Stoneburner, Judge, and Harten,
*
Judge.-
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Lake Minnetonka Conservation District, Respondent, vs. Miles B. Canning, et aI., Appell... Page 2 of 6
UNPUBLISHED OPINION
KLAPHAKE, Judge
Appellants Miles and Pamela Canning challenge the district court's grant of summary
judgment to respondent Lake Minnetonka Conservation District (LMCD). The LMCD brought
this enforcement action seeking an injunction to require appellants to remove their dock, which
does not meet LMCD regulations.
Appellants argue: (1) the LMCD lacks authority to regulate the location or configuration
of their private, noncommercial dock; (2) they have riparian rights to access the lake via their
dock that cannot be eliminated without payment of just compensation; (3) their dock is a legal
non-conforming use that cannot be removed by the LMCD absent use of eminent domain and the
payment of fair compensation; and (4) the LMCD ordinances are an unconstitutional delegation
of power because they allow neighboring landowners to withdraw consent to private docks.
Because appellants have riparian rights to access navigable waters of the lake and because the
position taken by the LMCD may interfere with those rights, we reverse and remand for further
proceedings.
FACTS
Appellants own approximately 12 feet of lakeshore on Lake Minnetonka. It is undisputed
that there has been a dock located on the property since the early 1930s, and appellants have
maintained a dock and moored a boat there since they purchased the property in 1990. It is also
undisputed that the dock fails to meet current LMCD regulations because it is outside appellants'
authorized dock use area, which is a small triangular area as drawn by extension of the
converging side lot lines into the lake, and because the extremely narrow width of the property
makes it nearly impossible to meet the five-foot side setback requirements.
In July 2000, appellants applied for a variance from the side setback and authorized dock
use area regulations to allow them to continue to maintain their dock and moor their boat there.
Appellants decided to withdraw their application after the LMCD voted to delay a decision and
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referred the matter to staff.
In August 2003, one of appellants' neighbors e-mailed the LMCD and requested that it
enforce its regulations against appellants' dock. LMCD representatives met with appellants and
discussed several options, including applying for a variance; combining appellants' shoreline
with the two abutting properties to the west and installing one dock; or securing mutual consent
from appellants' neighbors to install a dock and store a boat outside the authorized dock use area,
which could be revoked by either neighbor at any time.
In November 2003, appellants renewed their request for a varIance. The LMCD
discussed appellants' application at several meetings and appointed one of its members to work
on a compromise with appellants and their neighbors. At the LMCD's March 2004 meeting, this
board member outlined three options for the board to consider. While appellants and their
neighbors . could not agree on anyone option, they all appeared willing to compromise.
Nevertheless, several board members expressed concerns about the extremely narrow width of
appellants' lakeshore, the public safety issues associated with granting a variance to allow for no
side setbacks, and the possible undesired precedent of granting a variance to allow continued
historical dock usage. The board voted to deny appellants' variance and directed its attorney to
prepare proposed findings. Two days later, however, appellants withdrew their variance
application.
Appellants continued to use their existing dock. In October 2004, the LMCD brought this
action seeking compliance with its regulations and injunctive relief against appellants.
In granting summary judgment to the LMCD, the district court determined that"[ e]
nforcing the ordinances in this case is appropriate and does not result in the taking of
[appellants'] property without compensation."
DECISION
Appellants argue that they have riparian property rights that cannot be eliminated through
LMCD regulation. They insist that they have the right to maintain a dock to the point of
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navigability. They further insist that enforcement of the ordinance in this case impermissibly
impedes their right because the extension of their converging side lot lines into the lake does not
allow them to maintain a dock to the point of navigability. Appellants finally complain that the
LMCD has not shown how its regulations serve the public right of navigability as opposed to
serving the private rights of appellants 'abutting neighbors.
The owner of riparian land enjoys the right of exclusive access to water that is directly in
front of his or her waterfront property, and "title extends to the low-water mark." State, by Head
v. Slotness, 289 Minn. 485, 487, 185 N.W. 2d 530, 532 (1971). Riparian rights include the right
to build and maintain suitable "wharves, piers, landings, and docks on and in front of' riparian
land to the point of navigability. Id.; State v. Korrer, 127 Minn. 60, 71-72,148 N.W. 617, 622
(1914). A riparian owner "has a right to make such use of the lake over its entire surface, in
common with all other abutting owners, provided such use is reasonable and does not unduly
interfere with the exercise of similar rights on the part of other abutting owners." Johnson v.
Seifert, 257 Minn. 159, 169, 100 N.W.2d 689,697 (1960).
In order to determine the extent of riparian rights, riparian boundaries must be
ascertained. Minnesota case law does not endorse a specific method for drawing riparian
boundaries, although a method is described in Edward S. Bade, Title, Points & Lines in Lakes &
Streams, 24 Minn. L. Rev. 305, 306-07 (1940). Bade rejects a "rule of straight projection" to
arrive at riparian rights and suggests a more proportionate method based on the shape of the lake.
[d. at 341. While no single method applies in every' case, what remains important is that the
boundaries are drawn in a fair and equitable manner. See, e.g., Rooney v. Stearns County Bd.,
130 Minn. 176, 180-81, 153 N.W. 858, 860 (1915); Scheifert v. Briegel, 90 Minn. 125,133,96
N.W. 44, 48 (1903).
The method adopted here by LMCD regulations for defining the authorized dock usage
area was firmly criticized by Bade in his article as being fraught with inequity. Bade at 331-34.
And the LMCD's strict application of its regulations to appellants' property and reluctance to
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consider the equities involved appear to have seriously compromised appellants' riparian rights.
Because genuine issues of material fact exist regarding the extent of appellants' riparian rights,
we conclude that the district court erred in granting summary judgment to the LMCD. See Minn.
R. Civ. P. 56.02.
While the LMCD may place some reasonable restrictions on the size and location of
appellants' dock and boat, appellants are correct in arguing that LMCD regulations cannot so
restrict their riparian rights as to deny them access to the navigable waters of the lake. Under
LMCD regulations, extension of the side lot lines of appellants' abutting neighbors appears to cut
off appellants' reasonable access to navigable water. We therefore reverse the district court's
grant of summary judgment to the LMCD and remand for further proceedings. On remand, the
district court should determine the extent of appellants' riparian rights subject to reasonable
enforcement of LMCD regulations against appellants' property in a manner that is fair and
equitable, while still addressing public safety concerns. See State v. Kuluvar, 266 Minn. 408,
418, 123 N.W.2d 699, 706 (1963) (riparian rights are "subordinate to the rights of the public and
subject to reasonable control andregulation by the state"); Johnson, 257 Minn. at 165 n.5, 100
N.W.2d at 694 n.5 (riparian rights are subject to state regulation for public purposes).
Finally, we make the following comments in the interests of justice. First, the LMCD has
authority to regulate private docks on Lake Minnetonka for the benefit of the public and
navigation. See Minn. Stat. ~ 103B.611, subd. 3(6) (2004) (stating that LMCD has authority to
"regulate the construction, installation; and maintenance of permanent and temporary docks and
moorings"); City of Birchwood Village v. Simes, 576 N.W.2d 458, 462 (Minn. App. 1998)
(statute creating White Bear Lake Conservation District, which is substantially similar to statute
creating LMCD, "represents an effort by the local municipalities to cede authority to the board to
regulate all manner of activities affecting the lake," including size of boats that may be moored to
private docks). Second, because riparian rights are always subject to state regulation in the
public interest, a landowner's preexisting and continuing use of his or her lakeshore property is
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not a lawful non-conforming use if the LMCD finds other factors, such as public safety, more
important. See Bartell v. State, 284 N.W.2d 834, 838 (Minn. 1979). Finally, because we have
determined that application of LMCD regulations to appellants' property has caused the potential
loss of their riparian rights, we need not decide whether those regulations are also
unconstitutional because they allow the LMCD to delegate its authority to neighboring
landowners.
Reversed and remanded.
! Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn.
Const. art. VI, ~ 10.
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