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CC Minutes 6-8-09Chanhassen City Council - June 8, 2009 Todd Gerhardt: KleinBanks are very accommodating. They’ll make anything happen. Mayor Furlong: The Summer Concert Series starts Mr. Hoffman, in a week or so, is that correct? What’s the first date? Todd Hoffman: Thursday. Mayor Furlong: This coming Thursday? And is that evening or noon? Do you recall? Todd Hoffman: Evening. Mayor Furlong: Evening. So 7:00? City Center Park this Thursday is the first one and it runs into August on Thursdays throughout. Todd Hoffman: Correct. Thursday either at 7:00 p.m. or noon and the majority in the evening. Mayor Furlong: Majority in the evening so check the city web site if you’re interested. There’s some great bands coming back this year and entertainment and it should be a lot of fun. We do appreciate the support of KleinBank in sponsoring this series. PUBLIC HEARING: BHOJWANI DOCK VARIANCE: REQUEST FOR AN AFTER- THE-FACT VARIANCE TO PLACE A DOCK; 3301 SHORE DRIVE; APPLICANT: GARY BHOJWANI. Mayor Furlong: This is under public hearings, is that the correct placement for that? Todd Gerhardt: That’s correct. Mayor Furlong: So we will have, we had a public hearing I know at the Planning Commission. Kate Aanenson: That’s correct. Mayor Furlong: We’ll do another one tonight? Okay. Very good. Let’s start with the staff report please. Terry Jeffery: Mayor Furlong, councilors, thank you. As you noted we’re before you tonight with an after the fact request for a variance from Chapter 6, Section 26 which sets the limits for a cross bar of the dock, or that portion of the dock that’s measured parallel to the shoreline at 25 feet. The property is located at 3301 Shore Drive, which is located along the north shore of Lake Minnewashta. It’s currently zoned single family residential and is guided residential low density in the 2030 plan. As noted the public hearing was held before the Planning Commission on May th 19 at which time staff recommended either denial of the variance or 2 slips of the 3 slips. Planning Commission upon discussing it voted unanimously to approve the entire variance as requested. Because this request is currently in the purview of two chapters, a public hearing will be needed tonight as well. I would like to draw your attention to the motion box on page 1 of 3 Chanhassen City Council - June 8, 2009 your packet. That’s where it says City Council approval requires a majority of the City Council present. That is an error. It should read a four-fifths majority of City Council present which requires a super majority. At this time staff is recommending approval for the variance request. Mayor Furlong: Just a quick question if I could. The requirement for the super majority, is that in one of the sections of the ordinance that covers this? Terry Jeffery: That is Chapter 20, is that correct? Kate Aanenson: Yeah, it’s in Chapter 6. Terry Jeffery: Oh 6. Okay. The applicant, when he began constructing this dock this winter, this is the condition of the property in 2006 prior to his purchase of it. And actually the applicant, Mr. Bhojwani has another photograph which shows that the extent of the dock was even greater than what’s here. But at that time there were 2 docks on site. One located here and another here with a cross section, if you look at the scale up here. This cross section is about 35 to 40 feet in length. Total area was comparable to what is being proposed, or what is currently been constructed by the applicant. He has, during the process sought to do a number of things that he felt would in essence improve the property. One is originally there was, he chose not to locate the dock down here where it could be a hazard to navigation. Proved to be a safety or otherwise restrict access. Combine the two docks into one. He avoided the wetland area, which is up here. He also chose to locate it at that point where the shore is reach of dock as measured perpendicular to the shoreline would get him to the 4 feet… This is the structure we’re talking about at this time. If you look at it, this was taken late spring and it is still in this condition at this time. The entire length will be 71 feet. Three slips measuring 13 feet each. A swim platform measuring 12 feet and then 5 feet in width for each of the 4 dock sections going out, necessitating a 46 foot variance. This first slip was completed with an agreement with the City noting that it would be compliant with the City Code as it is now. It wouldn’t exceed the 25 foot cross width. It is important to note that it’s staff’s opinion that the construction began in good faith. There was no intent to circumvent any of the state or local regulations. A phone call was received. A stop work order was issued and we’ve been working with the applicant since then to move through the variance process. This right here shows, a rendition of the approximate dock location as proposed. This is to scale. You’ll note property line here. Property line here. It’s at least a minimum of 450 feet from any adjoining properties. As I said earlier, he chose not to locate the dock here where a much longer dock would be needed to achieve that depth. See the shelf that’s there. The wetlands avoid and he took the 2 docks combining them into 1 structure and stuck it where it’s out of the navigational channels. We took a look at the lake itself in terms of what are the typical properties on this lake. The table in the upper right hand corner shows the average width of a single family residential lot on Lake Minnewashta is about 125 feet. The median 110 feet. The narrowest lot 32 and the largest one, which is actually the point on Red Cedar, is 750 feet in length. That’s the next largest lot frontage after the applicant’s dock. So when we looked at 6-23 that the City Council may grant a variance if it’s shown that by reason of topography or other physical characteristics, strict compliance would cause an undue hardship. It can be argued that if one size, when looking at compliance issues it’s got to be the one size fits all approach may not be appropriate for riparian rights, or riparian ownership rights and that by denying this variance it argued that you would actually limit the reasonable use of the lake based 4 Chanhassen City Council - June 8, 2009 upon the unique nature of this lot and the lot frontage. And again when we talk about hardship or purpose of undue hardship, reasoning may not include use, may include a use made by majority of owners within 500 feet of the property. It’s been argued that by limiting the cross bar length a standard would be prescribed which would not be consistent with the amount of lakeshore owned. Further analysis of Chapter 6, it’s a term that might be said in every other way and the dock has been put in to be in compliance with the Code. Not to affect navigation. Access to any point on the lake. Safety concerns. Avoid degradation of habitat. Avoid…only one dock which is all that is allowed on a single family property. 50 foot in length or to the point where it’s 4 feet deep. He chose to put it where it is specifically for that reason. Now with the exception of the 25 foot cross bar and that is the reason we are here for the variance. He’s requesting a 75 foot cross bar. Again it’s, it has, by our GIS estimation 1,169 feet of frontage. The applicant, he comes up with a little higher figure but the point is still the same. There’s, it’s a much larger lot than we’re accustomed to on this lake. I’ll speak a little bit about the intent. In DNR publication entitled “Docks and Access to Public Waters”, which was published in February of 2009 by the DNR, Division of Waters, they talk about 3 points with, in their regulation of docks. First being that intensive shoreland development can cause deterioration of the ecosystem by shading out plants that might provide cover for spawning. For protection from degradation. And for food sources. By not restricting access to the lake bed or the water surface. Lake Minnewashta is a public lake. Anybody who gains legal access to the lake has the right to access any portion of that lake as it being a public water. And finally, finding that balance between what is a reasonable use and what is just a proliferation of docks…looking like a shanty town. Staff’s contention that given the nearly 1,200 feet of shoreline, that a 25 foot dock, whether it be 25 or 71 foot still would not constitute necessarily a proliferation of docks on this property being considering 25, not 110…250 feet of cross section if it were divided into 10 separate lots. Staff is recommending approval of this format right here. We originally thought, if it were just to be slip C, without the swim platform, that would be a conforming dock with our code, so there are 2 additional slips that are going on beyond that to a 71 foot cross section. That’s all I’ve prepared at this time but if you do have additional questions I’d be happy to answer them. Mayor Furlong: Thank you. Questions for staff at this time? Mr. McDonald. Councilman McDonald: To begin with, this dock, there was an existing dock on the location at one time and it was removed, correct? Terry Jeffery: There was an existing dock that was removed for the construction of this dock, yes. Councilman McDonald: And it was a non-conforming structure. Terry Jeffery: That is correct. Councilman McDonald: My question comes down, we just recently had some people come through with non-conforming structures and what we’ve enforced upon them is that if they you know wish to tear down and build back up they must stay within the same structure as the non- conforming structure. What is different about this case that we would allow someone to 5 Chanhassen City Council - June 8, 2009 basically tear down a non-conforming structure and build back on top of that an even larger structure? Terry Jeffery: Mayor Furlong, Councilman McDonald. Two points. I’m not entirely convinced that it would be a larger structure. Simply because when we look at the total surface of these docks compared to what is being proposed, they are very comparable in size. And he has tried to minimize the dock conformity by combining them into one dock. Kate, I don’t know if you had something. Kate Aanenson: I just want to be clear that the staff had a different recommendation. The Planning Commission, I just want to make sure that the Planning Commission’s recommendation was going forward here now. Councilman McDonald: Okay, but still if you’re going to support it I need to ask these questions because it’s very pertinent because at the last hearing we would have actually gotten a better structure upon a site but it was turned down because they could not comply with a non- conforming structure rules. Kate Aanenson: Correct, and I’ll go back to what the Planning Commission recommended and they felt based on the nexus of the length of that shoreline, that they felt that because there was 2 docks, that combining them together seemed an appropriate scale. Again that was the Planning Commission’s findings. Councilman McDonald: Well let’s talk about scale because you say there’s over 1,000 feet of shoreline but yet to the north end of that is water. Terry Jeffery: It’s all wetland. Councilman McDonald: Yeah, it’s all wetland so you couldn’t build a dock in there because not only would it not comply with our ordinances, it wouldn’t apply with the DNR ordinances. Terry Jeffery: Yes, given that there are alternatives available to place that dock, he would not be allowed to put that dock there. Councilman McDonald: Right. And you couldn’t put a dock on the point down there because at that point now you stick out into the navigable area so again you’re limited as to how far out you could go on the point. So in reality you’re limited to a very small space up on the shore as to where a dock can go. Do you have any idea what the length of that total area would be? Terry Jeffery: I believe the applicant had prepared that information at the last meeting and I think if he makes a statement tonight I believe he can address how much it’s natural and how much is… Kate Aanenson: I just want to clarify one point too. Even though you have a wetland, we do allow people, and we do have homes on the south side of Lake Minnewashta that their entire property is wetland. We do allow wetland alteration permits and so that’s a normal process so 6 Chanhassen City Council - June 8, 2009 that would be a separate process and you know how that would go through but you are allowed to go for a wetland alteration permit. The goal there is to try to mitigate the impact of, to the vegetation as the shoreline district says. Councilman McDonald: Right but in this case there is an alternative so it would be highly unlikely that you would… Kate Aanenson: Right, and that might be the appropriate nexus that you might make an addition that while he could have the dock there, that it might be more appropriate to combine that dock with another dock so you’re on the upland portion. So I don’t want that to you know, but that might be a separate application. Councilman McDonald: Okay. Then the next thing is within the dock, if we place the limits upon the dock that the ordinance requires, is the applicant barred from gaining access into the navigable waters? Terry Jeffery: No. No. We’re, that’s one of the things we, to talk about. Were it to go down to this one slip, Slip C, there still would be room for 3 boats to be dock, which is allowed by Code. It would still grant them access to the lake and what is a use commonly shared by other properties on the lake. Councilman McDonald: Okay. That’s all the questions I have for staff. Mayor Furlong: Other questions for staff? Councilman Litsey: I had a question if I may. Mayor Furlong: Please Mr. Litsey. Councilman Litsey. Councilman Litsey: How the slips are to be used, does that factor into it at all? In other words, single family home having 3 slips, is the fact that potentially could be rented out or an income generator, does that factor into it at all? I don’t even know how they’re intended to be used but it seems to me that 3 slips for 1 property owner, maybe they have 3 boats. I don’t know. Terry Jeffery: Mayor Furlong. Councilman Litsey. In conversation with the applicant they do in fact have 3. They actually have 4 watercraft. Two jet skis and 3 boats. Slip B and C, they have the hoist that’s used there, actually needs to mount to the pilings that are driven in. It doesn’t rest on the substrate as typical boat hoists do and that was another consideration in this but they do intend on using all 3 docks. Under Code, under Chapter 6, or 26 it says you must be a blood relative of the person who owns that in order to place a dock, or place a boat on that property so he couldn’t rent that slip out to a neighbor. Mayor Furlong: Ms. Aanenson? Kate Aanenson: That’s correct. Yep, and that’s pretty much complaint driven. We do inspect the beachlots on a more regular basis but generally that seems to be complaint driven. If 7 Chanhassen City Council - June 8, 2009 someone has a lot of extra traffic, someone in the neighborhood, or someone on the lake is going to complain on that. Councilman Litsey: Yeah, okay. And then the initial recommendation by staff of 2 slips versus 3, can you just go over again briefly why the deviation. Terry Jeffery: Yeah I guess, Mayor Furlong, Councilman Litsey. Staff’s thought on that was, given the nature of the 2 hoists that the applicant had, it might be reasonable to have those 2 slips to continue with use of those hoists, at the same time minimize the variance request to the greatest extent practical under those conditions. Felt that the third, it’s not uncommon at all for people to moor their boat on an open dock along the side of a dock without enclosed on 3 of the 4 sides so I think that was staff’s thought in that process. Councilman Litsey: Okay, thanks. Councilwoman Ernst: I just have one clarification question. Mayor Furlong: Councilwoman Ernst. Councilwoman Ernst: I just heard Councilman McDonald say that this possibly was not in compliance with the DNR standards. I was under the impression after reading and minutes from the Planning Commission that it was in compliance with the ordinance. Councilman McDonald: I didn’t say what we were talking about was the wetlands. If they tried to build a dock across the wetlands. Councilwoman Ernst: Okay. Okay. But as it stands today it is in compliance with the DNR standards? Terry Jeffery: Mayor Furlong, Councilwoman Ernst. Under current DNR regulations, this is a compliant dock with the exception of one part and that is that it must comply with all local ordinances and regulations. So if this were in a just state owned water, without city regulations, yes. It’d be compliant with DNR regulations. Councilwoman Ernst: Okay, thank you. Mayor Furlong: And for clarification as a part of the city ordinance that it doesn’t comply with is the width or what you’re referring to as the cross bar. Terry Jeffery: Yes, that is correct. Mayor Furlong: Okay. Other than that the other aspects of the dock at this point comply? Terry Jeffery: That is correct. Mayor Furlong: With city ordinance. Okay. 8 Chanhassen City Council - June 8, 2009 Councilwoman Ernst: Okay, thank you. Mayor Furlong: Other questions for staff at this time? Mr. Jeffery, question on, this is a variance request under our dock ordinance and we’ve had some of these in the past. Not many but we’ve had some and we’ve had other requests for access rights or putting docks in through wetlands. We’ve had a number of wetland alteration permits for docks and some have been approved. Some have not been approved is my recollection. Is that your’s as well? Terry Jeffery: That is mine as well. I think the bulk of them have been, as you said, they’ve been for setbacks from the side lots. For access where otherwise riparian rights might not be so clear just going through the wetland or having too narrow of a lot to meet it. And yes, maybe you would like to add. Kate Aanenson: Sure, and we’ve had some on Lotus Lake recently that they, where they’re crossing other property lines that we have denied. Again under strict interpretation, you probably remember the most recent one was that even though they had riparian rights, their HOA, the underlying development contract said that those lots were not to have individual docks and they felt they were being deprived so you upheld the original findings on that too so we’ve kind of, I think we’ve tackled pretty much everything from the beachlots to individual homeowners who may or may not have rights to very narrow docks that don’t meet the requirements for a dock so we’ve kind of seen the gamut. Mayor Furlong: Right. Well we’ve had other, the other ones I remember on Lotus Lake were a, because of the specific characteristics of the property itself, they needed to apply for a variance and that one in particular was granted. Kate Aanenson: Yes. Mayor Furlong: We’ve had others where they’ve thought they met the requirements and it was determined that they didn’t and those requests were not granted. So I guess. Kate Aanenson: …unique because to get to the depth of 4 feet, some of these docks end up being a couple hundred feet long, and sometimes they’re, in order to stay on your property you have to dissect another dock and it doesn’t work. It’s problematic so you have to look at each case separately. Mayor Furlong: So it’s facts and circumstances and the unique characteristics of each situation. Kate Aanenson: That’s correct. And I think that’s exactly where the Planning Commission went with their findings on this to look at this circumstance individually. Looking at where it was on the lakeshore to come up with their findings and different from the staff. They said you know this is different and this is how we see it. Mayor Furlong: Okay. The other question I have is the picture you showed, the prior picture with the 2 docks. That one right there. That’s actually different than the picture that showed 2 9 Chanhassen City Council - June 8, 2009 docks in the staff report. I’m guessing, was this one an earlier picture? What’s the date of this picture here, that you’re showing at this time? Terry Jeffery: Mayor Furlong, this was flown in the summer of, or rather spring of 2006. Mayor Furlong: 2006. And the picture in the staff report that showed the 2 seasonal docks. Do you know what year that was? Terry Jeffery: That one was actually much earlier. That’s in 1977 aerial photograph. And that was really intended to show that the placement on the south portion as well in that navigable waterway. There have been some version of 2 docks out there really since 1977. Sometimes they’ve been placed together. On the eastern shoreline. Sometimes they’ve been divided like that. Predominantly they’ve been placed together though as shown in the 2006 photograph. Mayor Furlong: In your presentation tonight has been the more predominant. But there have been, 2 docks by itself is a non-conformity? Terry Jeffery: That is correct. That is correct. And in addition this cross bar would be a non- conforming cross bar. It would exceed the 25 foot width. And I believe the applicant, if he does present tonight, has additional photographs. Actually that was given to him in the sales brochure of what the docks could look like on the lake. Mayor Furlong: Alright. And I just wanted to clarify the two different pictures there and you also clarified the timeframe and the fact that there have been 2 docks here for a number of years, even prior to our existing ordinance. Terry Jeffery: Correct. Mayor Furlong: Okay. Any other questions for staff at this time? Councilwoman Tjornhom: I have a couple. Mayor Furlong: Councilwoman Tjornhom. Councilwoman Tjornhom: Just for clarifying my understanding. When you look at Section 6-26 regarding docks, why is it that we have these standards? I mean how did we come up with 50 feet or you know where did these numbers come from? Terry Jeffery: Mayor Furlong, Councilwoman Tjornhom. I can’t speak to the specific discussion that went on when those went in place but given, given the desire not to have the entire shoreline covered with docks. To still allow access to the whole part of the lake, I think 25 probably seemed a reasonable use to get 2 docks, or 2 slips in. Allow a swimming platform or whatever, but not be such that the entire shoreline is really a contiguous, a dock. Contiguous dock going all the way around. Excuse me. 10 Chanhassen City Council - June 8, 2009 Councilwoman Tjornhom: So these numbers, it’s not for necessarily protection of the lake except for looks, aesthetics? Terry Jeffery: No, no. Mayor Furlong, Councilwoman Tjornhom. No, protection of the habitat that is along the shoreline. If you look at past aerial photos, especially northern Lotus Lake comes to mind where it used to be lily pads and sedges and rushes all throughout that area but as the docks began to proliferate in that area, people either needed to clear out more and more vegetation to gain access or just the boating traffic itself that did. The docks themselves act to shade out the plants that are there and then once you start losing the plants you start losing spawning areas. You start losing places where the smaller fish can hide from predation or where the larger fish can look for food as well as just yes, protection of the shoreline in general. Kate Aanenson: Maybe could add a little bit too. When the Minnewashta Regional Park went onto the lake, I think that started a big discussion too about how many docks and beachlots and those sort of things so they, these codified some standards for docks. And then also looked at, then I believe in the early 90’s then we went back to and actually had the dock setback regulations. Some of that was safety too. To look at when people were approaching other docks, was there enough space between because we looked at the average width of some of those lots that were narrower to make sure that there was you know, and again that was some of the reasons why the Planning Commission felt like because it wasn’t really a safety issue here with this much frontage but that was some of the rational basis for coming up with those standards. And as we noted earlier where there’s different depths of the lake, where you’ve got 150 feet of wetland, your dock needs to be pretty long to get out to a depth of 4 feet. So there’s all different standards so if someone’s fishing along that edge, so there’s some consistency to say why is your dock so long? Because I have a right to get to 4 feet of depth with my dock so that was some of the basis that they put in place to be consistent on all the lakes so there was a standard. And again as we noted, deviation for whatever reason, the way the property lines come to the lake, the different widths that we have processed variances throughout so some of that again was based on that safety issue. Councilwoman Tjornhom: And if I could ask one more question. Mayor Furlong: Please. Councilwoman Tjornhom: I think I’ve asked this every time we have a dock variance come up. Do the city codes pertain to every lake or does each lake have their own set of rules? Terry Jeffery: They pertain to every lake in terms of the dock. Councilwoman Tjornhom: Okay. Terry Jeffery: Some may have a slow wake zone at different times than others but Chapter 6 applies to all lakes in the city. Mayor Furlong: Okay? Any other questions at this time? No? At this time then I’d like to invite the applicant to come forward, if there’s anything you’d like to address to the council. We 11 Chanhassen City Council - June 8, 2009 did have the benefit of reading the minutes at the Planning Commission. I know you provided quite a bit of information there so if there’s anything else you’d like to add this evening. Good evening by the way. Welcome. Gary Bhojwani: Thank you. Good evening Mayor, council members. My name’s Gary Bhojwani. I’m the applicant. Do you need me to state address or anything like that for the record? Mayor Furlong: Please. Gary Bhojwani: 3301 Shore Drive, Chanhassen, Minnesota. Mayor Furlong: Thank you. Gary Bhojwani: I’m not sure what the right way is to proceed. I can walk you through maybe an abbreviated version of the comments I made during the Planning Commission. There are a couple of questions that were asked and comments that were made that I would either like to clarify or add to. Mayor Furlong: Okay. Gary Bhojwani: I think it might be better for me just to spend a few minutes if I could to walk you through the comments I made. Would that be appropriate? Mayor Furlong: Yeah, I think in a summary version might be appropriate and then make sure you address the questions that you heard today or… Gary Bhojwani: Yep, I will do that. I made note of those and I’ll try and address those. I’ve got a couple of notes, can I hand those out to you guys? Is that alright? Mayor Furlong: Yes. Gary Bhojwani: I promise I’ll move through it quickly. I know you guys are pressed for time. If you just want to take one and hand them down. Todd Gerhardt: Yeah, thanks. Gary Bhojwani: The first thing and probably the most important thing I want to start with, I very much believe Warren Buffet’s position that it takes 20 years to earn a reputation and 5 minutes to lose it. It is absolutely imperative to me that the members of the council and the mayor understand that this was a mistake that happened in terms of even starting the construction. This was not an attempt of an end run and I’ll explain that in a just a moment. We moved to Minnesota in 2007. It’s our first time living on a lake. I grew up in Chicago and my wife grew up in Wisconsin. Neither of us had lived on a lake. We weren’t familiar with all of the subtleties that go into lake life, particularly docks and things like that. We hired a contractor. The contractor’s here tonight, if you have any questions him. We hired a contractor who’s got a 12 Chanhassen City Council - June 8, 2009 lot of experience building these type of docks. We checked him out. Checked out his reputation. His expertise and so on. The docks, to answer one of the questions that was asked. The dock that’s been constructed is in full compliance with DNR standards, but for the one provision that Mr. Jeffery pointed out. Again, when we hired the contractor our understanding is that in the spring of 2008 the contractor spoke with city staff to get a general understanding of what would be permissible and not permissible. It appears that there was some type of a misunderstanding because the contractor thought all he needed to comply with were DNR standards. But it’s important to note that again under the heading of reputation, I don’t want people thinking we were trying to make an end run. That was just not the case. So in addition to that we, once we were notified of a problem we complied completely with all the city’s requests. I would like to point out, and I don’t want to make an issue of it. Our attorney’s here if we, you know if you have technical questions. I would like to point out though for the benefit of the City Council, there is some lack of clarity and some inconsistency between Sections 6 and 20. I’m not an attorney. You know if you guys have technical questions we can have him come up and you can talk to him about that but there is a lack of consistency. I think there are some issues and even city staff would concede that. So the first and most important thing, this was not an end run. Now in terms of the specifics of the dock itself. Just a couple of pictures I’d like to share with you because I think these speak to some of the issues. Let me start with that one. This is the second page in the packet I just handed to you guys. This is an apples and oranges comparison so let me concede that but this is a picture that’s taken right off of our dock, across the lake from us. You can see there are 7 slips there. There are multiple residences that share that. It’s a completely legitimate use and so on so I’m not trying to say it’s the same comparison but I provide the picture as a way to make a point that to the extent someone is concerned about the aesthetics of multiple slips being attached, that bridge has been crossed and then some. So that exists right across from us. Now the salient issue, and I think that even the Planning Commission saw this, was the notion of scale and what we purchased. So the next picture here, I’ll put this up. This is a picture of the plot and what you’ll see here, when we purchased the home in 2007 it had these 2 docks and this was the approximate location and the configuration. We have pictures to prove that up so it’s slightly different than the picture that was shown by Mr. Jeffery in 2006. What we moved it to was this new configuration and one of the main things that we did after input from our neighbors was to shift the dock away from this point, because this is a water skiing point. Folks come around the bend here and they really didn’t want this dock here because of the sight line and so on so we moved it all closer. Now one of the other points I’d like to make, the property has on it a structure right here. A kennel building or something of this sort. What I really wanted to do was to build a dock off of that and use that as a boat house but our contractor advised against it. He said look, you’ve got wetlands over here. Lily pads and so on. You’re going to draw all kinds of problems if you try to construct something there. The point I simply try to make with this drawing is that we were very mindful of keeping away from navigable, the navigable point here and we also stayed away from the wetlands. By locating it in the location we did we are not obstructing anybody’s navigation. Now the other point that I think is worth making, with approximately our count is 1,260 but we’ll use 1,160 or 1,260. The point is, you’ve got a lot of shoreline here. We are 500 feet at minimum from the nearest neighbor. The neighbors on this side over here can’t see the dock. The majority of the neighbors, I think 4 out of the 5 homes that can see the dock from this end have provided letters of support. I believe those are contained in your packet. Now, the other issue that was touched upon a little bit was what we bought, and here’s another drawing that I prepared. This is the 13 Chanhassen City Council - June 8, 2009 drawing as it currently exists. 2009. The configuration we bought the home with was like this. If you look, and I intentionally, what I did was I took this and I used a little scissors and cut it up to try and show the configuration we’ve moved to actually takes up less square footage than the way we bought the home. Now, we’ve now come to learn that when we bought it the docks that were in the water were non-conforming and I don’t know what to say to that. I bought the home with 2 docks in the water. They were this configuration and so there was 2 docks like this and this platform was actually, I think he said it was 41 feet. This length. The new configuration is actually slightly smaller but for sake of discussion here let’s call it comparable. Our intent wasn’t to build something that was totally outside of what we had bought. Now in hindsight should we have known that it was non-conforming and such? I guess but if you were buying a brand new home, or not a brand new home but if you were moving brand new to an area and you bought a home, I think you would assume that what you were buying was generally conforming. Hindsight I wouldn’t do that again. I’ve learned my lesson but here I am. Couple of other things. I think this also carried some weight with the Planning Commission. The 71 foot that is currently constructed and being sought permission to continue with is approximately 6% of our total shoreline. The average shoreline on Lake Minnewashta is 125 feet. If you were to impose that same 6% limitation you would be talking about docks that are 7.5 feet wide, not 25. Similarly the median shoreline on Minnewashta is 110 feet. Again 6% of that would be at 6 ½ feet. Not 25 feet. Now, another key issue I think for the council members to know, what’s at dispute here is the width of the dock. Not the protrusion into the lake. So we’re not affecting navigable waters in that way. We have come away from the point to make water skiing safer. We have stayed away from the lily pads. We were able to secure approximately 20 letters of support from our neighbors, most of whom live on the lake and have visibility to the new structure. I think the main reason we were able to secure that is because they recognize we have been respectful stewards of the property that we own. Indeed of the 1,200 feet or so that we own, 90% of it is in it’s natural state, and I think that’s pretty significant. Final point I’d ask the council to consider, we’re in a situation right now, we can’t even go back to what we had because the 2 docks were non-conforming. We bought the house in good faith. Docks in the water. We engaged a reputable contractor. I think an honest miscommunication was made and we’re stuck so here we are asking for the variance. Mayor Furlong: Okay, thank you. Any questions for the applicant? Councilman McDonald: Well if I could just make a comment. First of all from reading through all this, I do not believe that you need to apologize for it being an end run. I think it’s very clear it was a mistake and it was an honest mistake on everybody’s part, so I don’t think anyone here is accusing you of any of that. From reading through the record and everything I don’t think that charge has been you know leveled against you. I do understand that our ordinances and when you do this can be quite complicated so please you know, do not think that we believe that you tried to do something you know slipped under the radar on us. Having said all that, what I would like to ask is again the question that I asked staff about the length. The actual shore length. If I take out the wetlands and the point, which would create somewhat of a problem to you as far as putting a dock in there, how much actual lake front footage are we then talking about? Gary Bhojwani: I believe we’re still talking about in excess in 500 feet. I don’t know off the top of my head. One thing I would also point out, Mr. Jeffery provided pictures last time that were 14 Chanhassen City Council - June 8, 2009 taken earlier. I think sometime in the 90’s actually there was a dock that came off of the point. The docks have been placed in various locations through the years by the previous property owner. There were pictures to substantiate that. So whether or not it would be a wise placement, it’s been placed all over. The docks have been placed all over the property line over the last 30 or 40 years. Councilman McDonald: Right, and I think one thing that was pointed out by the Planning Commission last time is that a lot of this is complaint driven. The City doesn’t go around policing everybody individually. There’s just too many lakes and too many docks, but once we do receive a complaint we will investigate so, just because someone was allowed to do it before doesn’t mean it was correct. It just means maybe no one complained, but I think what you saw were that people evidently didn’t like it because they did ask you to move the dock off of the point because of water skiing. The other questions I guess I have is that if we do restrict this down to what the ordinance requires, what kind of hardship does that actually place upon you? Do you have 3 boats that now all of a sudden you have no place to put or just why do you need the additional space? Gary Bhojwani: We do already own 3 boats, so to answer that question. The dock as you saw has already been substantially constructed. Frankly the hardest parts of the construction, and again the contractor’s here if you have technical questions. The hardest part of the construction has already taken place, which is driving the pilings. I believe there’s 42 pilings and some of them go as much as 18 feet into the ground. So removing these first of all wouldn’t happen until the winter time, and second of all it would be a pretty substantial undertaking to get them out of the ground. Councilman McDonald: Well that’s an interesting point. Can I go back to staff for just a second? I believe I read in the report that if we did adhere to the ordinance we would not necessarily require the pilings to be removed, is that correct? Terry Jeffery: Mayor Furlong, Councilman McDonald. We would not require them to be moved until such time as conditions were safe that they could drive the rig onto the ice and pull them out at that time. So they would remain in place for the summer. Councilman McDonald: Okay, but the pilings couldn’t just remain indefinitely then? Todd Gerhardt: Only if you granted the variance. Councilman McDonald: You have to grant a variance to allow pilings to remain? Okay. I guess that answers that question but what other hardships would you have here? Would you be restricted as far as being able to get out into the navigable waters of the lake or would you suffer any other kind of lack of enjoyment of your property and the dock and boats? Gary Bhojwani: I think the issue from our perspective is, there’s probably a couple different perspectives. Number one, we’re seeking something that is no more than what we bought the home with. Indeed technically speaking slightly less. So we bought the home in good faith, assuming certain things. We would no longer have that. That’s not to say we wouldn’t buy the 15 Chanhassen City Council - June 8, 2009 home without it but in terms of a change. Second, we’ve expended a considerable amount of funds building the dock, and whether that comes out of our contractor’s pocket, our pocket, what have you, there’s clearly going to be financial impact. We do own the 3 boats. We’d have to deal with that. We also have purchased lifts that are mounted permanently to the pilings so even if you pull the pilings out, now I’ve got to do something with these lifts. So there are substantial hardships that would go with that. In terms of access to the lake, we still have access to the lake. I’m not disputing that. I think that our attorney has a different perspective on hardship and what the standard is. I’m not the legal guy. We could have him comment on that if you’re so interested. Councilman McDonald: Okay. Todd Gerhardt: Mayor, council members. I think at this point I think it would be good to get an opinion from our city attorney on the definition of hardship so as we’re looking at the request before us, to truly feel and understand how we define a hardship and if you don’t mind we’ll have Roger kind of explain that to the council and to the public. Roger Knutson: It’s actually not my definition that counts. It’s the Court’s opinion. Their interpretation. Up until about 20 years ago there’d been a common understanding that hardship meant that without the variance you were deprived of any reasonable use of your property. The Court rejected that roughly 20 years ago, Raoul vs. City of Moorhead. And the Court said no, that’s wrong. Hardship does not mean you’re prevented from having any reasonable use. It means you’re prevented from having a reasonable use. So the question in each situation is, under the circumstances that are unique to this property is, does the ordinance prevent someone from doing what is reasonable. Considering the topography, the size of the property. Under these circumstances present here that are unique to this property that are not shared in common by all other properties is the ordinance preventing what is reasonable. And if the answer to that question is yes, what they’re doing is reasonable but the ordinance is preventing it, then a variance is appropriate. And if you answered that question in the negative, then the answer is no. A variance is not appropriate. Councilman McDonald: I have no further questions Mr. Mayor. Mayor Furlong: Okay, thank you. Any other questions for the applicant? Gary Bhojwani: Thank you. Mayor Furlong: Okay, thank you. At this time, we’ll go ahead. Let me go back to staff. One of the questions that wasn’t addressed and it was an issue that was brought up at the Planning Commission and that resulted in condition number 1 being recommended by the Planning Commission about an annual inspection by the City for purposes of, I read through the minutes. For the sake of those people that didn’t, there was some concern about what, structural integrity? Tell me what their concern was and how that… Kate Aanenson: I think that was, the structural integrity but I’m pretty confident and the investment put in this dock that the owner is going to maintain that. So I don’t know if we need 16 Chanhassen City Council - June 8, 2009 to do that. Again the complaint basis is normally what we do but that’s normally, someone else is going to tell us if someone’s dock is disrepair but I think what the person that put that on would be comfortable either way if that was removed too. I think it was just to kind of put it on notice that. Mayor Furlong: Okay. And that was, because generally I haven’t seen that type of condition before about us, but you’ve answered it fine. That it’s… Kate Aanenson: Yeah, because we don’t have that many permanent docks on the lake. Just to be sure that now it’s a permanent dock, that that person maintains that and again based on the investment put in there, I’m pretty confident that would happen anyways. Mayor Furlong: Okay. Alright, so. Kate Aanenson: If it’s removed, that would be fine. Mayor Furlong: If that’s removed that’s fine. Okay, thank you. Todd Gerhardt: Mayor, Council, I think the contractor could also explain that when you put a permanent dock in, you’re going to have you know ice moving and he makes a living on adjusting some of those. I mean the property owner wants them to be secure and on occasion they will get loose and he’ll go out and repair it, like most people do. Mayor Furlong: Okay, thank you. At this point then, good evening. Peter Johnson: Good evening. Mayor I’m Peter Johnson, counsel to the Bhojwani’s and Gary Bhojwani’s asked me to make a brief comment to the council if that’s acceptable. Mayor Furlong: Please do. Peter Johnson: I did send a letter to the Planning Commission and to the City at the Planning Commission trying to elaborate on the way I saw the legal principles at play in this application and in that letter I did identify my correspondence as part of and as supplement to the Bhojwani application and so my first point is I’d like the letter to be part of the overall record in the deliberations here. It was not clear to me based on the mailing that I got that that was distributed to the City Council but we can. th Mayor Furlong: Is this your letter dated April 16? Peter Johnson: Yes. Mayor Furlong: Okay. City Council does have it and without objection we’ll put that on, for the record as well. Peter Johnson: And I would say first of all that I don’t take issue with the comments that have been made by the city attorney regarding the generalized standard for a variance or what a 17 Chanhassen City Council - June 8, 2009 hardship is. However this case involves riparian shoreline and we do have a great deal of law on riparian shoreline in the state and it dates back to the beginning. Riparian shoreline has always had a special set of principles that apply and referenced in my letter the recent case of, to an ordinance that was in effect on Lake Minnetonka. One size fits all dock use application and in that case the Court of Appeals struck down the statute and said in a case where you do not consider, reasonably consider a variance to your one size fits all ordinance where the property clearly is not going to have a fair use of it’s riparian shoreline under the ordinance, then the ordinance is, it’s ineffective. And so in this case where it’s so clearly the case that we’ve got the largest property on the largest lake in your city. It’s a very exceptional, extraordinary, unique piece of property and there is nothing unreasonable or unusual about Mr. Bhojwani’s proposed use in the broader contest. You happen to have a number of small lakes with modest parcels and I’m sure, I’m certain that your ordinance is perfectly appropriate for most of them but in this case we think that a variance is appropriate. Thank you. Mayor Furlong: Thank you. Any questions for Mr. Johnson? Councilman McDonald: Could I make a statement? Or should I wait? Mayor Furlong: Well is it making general comments or is relating to his letter? Councilman McDonald: I just wanted to point out that if we’re going to talk about riparian rights and we’re going to be provided with a case I think we should also look further down within that case because that case does state that riparian rights are subordinate to the public welfare and good and that this case also said that a governmental body does have a right to regulate it’s shoreline and docks and there is nothing within this case that says anything about length of breadth or any of those kind of things. The case at Lake Minnetonka was based upon geography of a particular lot and at that point it did begin to impede to within that particular case’s riparian rights but in this case with the lot size that we’re talking about, those kind of factors do not come into play here. Peter Johnson: Well Lake Minnetonka, their ordinance gives big docks to big lots, little docks to little lots, and in this particular case the way that the lot lines converged, it gave virtually no docking at all but it gave the right to use a row boat or bring a boat up onto shore as access to the lake and the LMCD thought that was reasonable and the Court of Appeals thought it was not. So I did not mean to say that the City can’t regulate docks. As a matter of fact what I thought I said was that you have the right to regulate docks. You have, and you can regulate reasonably with a one size fits all ordinance also, but the case I cited stands for the proposition that when you are confronted with a unique piece of property that deserves a variance, then you must give the variance. Councilman McDonald: Okay, I would agree with that. Peter Johnson: Thank you. Mayor Furlong: Thank you. At this time, having heard from staff and the applicant I’d like to go ahead and open up the public hearing and invite any interested party to come forward to the 18 Chanhassen City Council - June 8, 2009 podium, please stating your name and address. No one this evening? Seeing no one without objection then we’ll close the public hearing and bring it back to council for discussion. Is there, can we keep going? Thank you. Let’s start with discussion or follow up questions if there are any. On this. The issue before us is the, as I understand it, again summarizing the request for the variance is specifically with regard to that cross bar. That’s the point that violates, or is not in compliance with our ordinance. Terry Jeffery: That is correct. That is the only part that is not in compliance with our rules. Mayor Furlong: Okay. Our ordinance doesn’t, okay. Alright. Thoughts and comments and then we can put it to discussion and see where it takes us. Councilman McDonald: Well the problem I’m having with all this, it comes back to the non- conforming use. We have been very consistent in the past that when you had a non-conforming use, once changes are made to that it must come into conformity. I was yet to see anything with this particular case that would say there’s something different. We’ve talked about shoreline. We’ve talked about the length of it. We’ve talked about access. Anything to come into compliance with our ordinance does not create a hardship on the applicant. He can still get in and out of the lake. As a matter of fact with the recommended docks that you had come up with, he could still moor 3 boats. Not as conveniently as he can with the dock but the ordinance is not about convenience. If it were about convenience there are a couple of cases that came through here that we should have been granting variances to and we did not because again we have adhered to the fact that once a non-conforming use is undone, it must come into a conformity and I was yet to see a reason to say that we should go beyond that and grant a variance on this particular issue. But you know having said that, again the problem I’m having is the non- conforming use. I think that there were a lot of things said in the Planning Commission that maybe the ordinances that we were doing were not, I don’t want to say legal but were confusing or improper. I do not believe that that is the case and so I don’t think that that’s a good argument for why this should be allowed or why a variance should be granted. If someone can convince me that we should go back on what we’ve done in the past I’d be willing to support this but I’m thinking of a particular case last week and there was a lot involved on that one and we adhered to again the, if you change the non-conformity you must come into compliance. Mayor Furlong: Let’s talk about that because there have been a number of situations where we’ve had variance requests where there’s been non-conformity. Sometimes are after the fact variances such as this situation. Sometimes it’s before the fact and I’m thinking of a few, especially around the lakes where we’re dealing with maybe not a dock but hard surface coverage, impervious surface coverage where they exceed the allowable amount and we bring them closer to but maybe not all the way down. We might still grant a variance but not everything that they initially requested. But we make progress so, but let’s talk about it. Councilman McDonald: Well on some of those. Yeah, on some of those, Lotus Lake is a good example of those because on the north end of Lotus Lake, in the past couple years there’s been a lot of requests for docks. Mayor Furlong: Yes. 19 Chanhassen City Council - June 8, 2009 Councilman McDonald: The north end of Lotus Lake goes across basically wetlands. We have allowed some exceptions in that area but we’ve also limited people to have access because again when the developments were put in as part of the plat itself it was written in, the restrictions on docks and there had to be community docks versus individual docks except for certain lots. So all of that was written in. Where we granted the variances it was because people could not gain access into the lake so we had to do something there, and we did manage whenever they started making some changes, we did squeeze things back a little bit but again you still allowed access. There was one dock in particular that came down and he would have had to have gone out, done a left turn, come around in order to get into the lake. We denied that one because again it goes back to the way the property was originally platted and everything. The restrictions that were placed upon it, but also because again we wanted to protect the wetlands so. Mayor Furlong: Right and there were, if we’re thinking about the same one it was the one that was granted on the north part of Lotus Lake about a year or so ago and there there were unique attributes to that parcel that justified the granting. There have also been some variance requests for, to our dock ordinance that have not been granted. Again because of specific circumstances there. Todd Gerhardt: Mayor, council members. If I could just clarify the issue before us here. Staff is not recommending approval of the variance because there was a non-conforming dock there prior. The question before the City Council this evening is, does the applicant reasonable use of his property? Nothing to do with the previous docks. That has nothing to do with the hardship. I think Roger defined hardship. Does the applicant have reasonable use of his property based on the amount of frontage he has on the lake. That’s the question before the council. Roger Knutson: If I could just amplify on that. I would suggest, ignoring the fact that there were, in my judgment anyway, was 1 dock, 2 docks, or any docks there before, he doesn’t get a leg, the applicant doesn’t get a leg up because there were prior docks there and he’s not, he’s not, doesn’t have a leg down, whatever the equivalent is, because of it either. It just, I would review it as here’s an application for a dock. This is a new dock. Does he meet the standard? And the standard, the undue hardship standard is, does the ordinance prevent what, a reasonable use. What the applicant, is the use proposed by the applicant reasonable under the circumstances of his property. Mayor Furlong: Thank you. Other thoughts. Councilwoman Tjornhom. Councilwoman Tjornhom: I’ll see if I can try and piece this together and explain I guess my thoughts. When we have a request for a variance I guess I immediately look at the ordinance and does the ordinance seems reasonable to the applicant, and that’s why I asked the question regarding square footage and feet and just the overall requirements of docks. How those numbers came to be and why and it seemed reasonable, as you explained to prevent over crowding on docks along lakeshores. And I think in the staff report there was a chart that showed square footage of lakeshore. The averages in town, and a majority of them work with this ordinance. But when you have a property owner and they have roughly, if not more or less 1,200 feet of shoreline, that to me, this ordinance doesn’t seem reasonable for someone who 20 Chanhassen City Council - June 8, 2009 owns that much shoreline and the fact that he is wanting to have a structure, one structure. Not two or three but one unit, self contained unit on his 1,200 feet of shoreline to me seems reasonable. As far as a hardship goes, you know we could fight, we could talk all day about what, is a hardship only being able to have 1 boat or 3 boats. You know that’s not up for me to decide, but I do know that if I owned 1,200 feet of shoreland I’d probably want to enjoy that shoreland and I’d probably want to have 3 boats. And so I think, like I said, the ordinance, it works a majority of the time but in this case I just don’t feel that it’s working for this property owner and so I would have to agree with the Planning Commission that we should allow him to continue on with his construction and monitor that with yearly inspections. Mayor Furlong: Okay. Councilwoman Ernst. Councilwoman Ernst: With the data given here this evening it seems that the owner would not have reasonable, a reasonable use of his property if the variance is not granted. In building the dock the owner has actually been very reasonable and building the dock around the wetland area. He’s meeting the DNR standards and in reading the Planning Commission minutes and really with him receiving the support of the owners around the, surrounding his area of the lake, I would really recommend that we support this variance and I personally would and I would go on staff’s recommendation. Mayor Furlong: Okay, thank you. Mr. Litsey. Councilman Litsey: Along those same lines I guess. I look at what’s reasonable use of the property given the amount of shoreline that’s here. If you were to look at the median shoreline on Lake Minnewashta it’d be 110 feet approximately. If this was subdividable, which it obviously isn’t because of the wetland and stuff, potentially for that tract of property you could be looking at 10 plus docks along that shoreline and so I think given and what’s been articulated by our city attorney and what’s been presented I think that what’s been presented here by the applicant doesn’t seem unreasonable to me based upon the amount of shoreline that we’re talking about. Mayor Furlong: Okay, thank you. I think as we look at these, in addition to answering the question about reasonable use, which the city attorney has laid out, I think the other factor here just to make sure we’re clear is this is an after the fact request so to the extent that the, some of the construction occurred before the issue was raised. I think it’s fair and I’m glad to hear that really isn’t a factor in our decision. We try to approach these as if it was before the fact and we’ve done that consistently. So the real question from an ordinance standpoint, whenever we write an ordinance we talk about all the time we try to find that balance between public rights and, or between public interest and private property rights and I think we all realize that one size does not fit all. We try to find that balance but realize and clearly through the process we’re going through tonight, that variance request, that is the opportunity through a public process to take a look at the specific facts and circumstances and how that might differ. I think with regard to this particular application, this is a unique property. I think when we look at reasonableness, and it’s been stated by others, I think that what is being proposed is a reasonable use. It fits, we talked about DNR criteria in terms of avoiding excessive shoreline development. I think that speaks to the length of shoreline on this parcel relative to the size of the dock. It’s not adding 21 Chanhassen City Council - June 8, 2009 docks. It’s reducing it. This is you know protecting the natural features of the lake. It’s improving the navigable waters so it clearly fits I think within the DNR standards, but is a parcel of this size, is it reasonable to have a dock of this size and that’s really what it, what I think the question is and stepping back, all things considered, I think the answer is yes. It does. It is not an unreasonable request. It’s a reasonable request. It’s a reasonable use and so I do support the variance. I would, if I understand what the Planning Commission was seeking to do with regard to it’s condition, and Councilwoman Tjornhom maybe we can talk a little bit about this. I would actually support the variance request but not include the condition on there. I don’t know that we need the City to annually inspect this dock, or any dock at this point. We’ve got other issues in place from a nuisance issues and stuff like that so I don’t know that we need to add that on as a condition to require the availability for annual inspection and I think even the wording of that was, if I can find that here quickly. There was some question about whether this would follow with the property or not. It specifically speaks to the applicant. You know a variance goes with the property, is that correct? Kate Aanenson: That’s correct. Mayor Furlong: So the variance is going to be there and when we talk about appearance and fitness, I mean those are judgmental calls and I don’t know that ultimately it’s going to be up to property owners, just like all lakeshore owners in terms of maintaining their docks… So I understand what the Planning Commission was trying to get to, having read their minutes, and the concern that they were trying to consider, but I’m glad to hear staff would be comfortable and not, if that condition was eliminated and I would certainly support the variance request without that condition. I think that’s just a cleaner, better way to go forward so I’m certainly open to discuss that but those were my thoughts on that issue. Councilwoman Tjornhom: I just have, and I read the Planning Commission minutes too. Mayor Furlong: Sure. Councilwoman Tjornhom: I’m just, can staff refresh, and for those who haven’t read the council, the Planning Commission minutes, what was the Planning Commission’s reasoning for wanting the dock checked? Terry Jeffery: I think it’s what Kate was talking about earlier. I think they just wanted to make sure that if we’re allowing a permanent structure, which we haven’t had a whole lot of on this lake. Allowing canopies on this dock and that was the few complaints we did receive, that was the bulk of it was how are the canopies going to look from my window. That staff would have an opportunity just to look and make sure it was held to good repair but I think Kate said it best when she said the investment that the applicant has made on this dock alone is motivation for him to keep it in good repair. Kate Aanenson: To be clear we do inspect beachlots. Mayor Furlong: Okay. 22 Chanhassen City Council - June 8, 2009 Terry Jeffery: Yep. Kate Aanenson: So I think that’s, that was the tie in. I don’t want to think that was just flippantly thrown out there. Because on beachlots sometimes there, you know when you have an HOA, a homeowners association, excuse me for the acronym, sometimes they may be in disrepair so we do try to check those and make sure that there’s a right number of boats at those beachlots so I think that was just kind of a natural nexus to say well maybe, because this is a permanent dock, we don’t have individual permanent docks on the lake that maybe that might be an appropriate tie. And that condition I think was kind of you know. Mayor Furlong: Okay. And that makes sense. I guess, and maybe it’s a philosophical issue but unless there’s really a public interest for government to be requiring annual inspections of someone’s private property, I guess I’d avoid doing that. I haven’t heard that here tonight and while there may be some concerns I think I’m comfortable with staff in terms of allowing the property owner to maintain their dock. Going forward. Any other thoughts or comments? We have, if there’s no other thoughts or comments we have a motion at the beginning of the staff report. If somebody would like to make a motion. Councilwoman Ernst: I’ll make it. City Council, I make a motion that we approve Planning Case 09-07 as shown on plans dated April 17, 2009 for a 46 foot variance request from the allowed 25 foot cross bar for docks as outlined in the staff report and adopt the attached Findings of Fact and Decision. Mayor Furlong: Would you include or exclude the single condition with that motion? Councilwoman Ernst: Excluding the annual inspection. Mayor Furlong: Condition. Councilwoman Ernst: Condition. Mayor Furlong: Okay. As recommended by the Planning Commission? Councilwoman Ernst: As recommended by the Planning Commission. Mayor Furlong: Okay. Is there a second to that motion? Councilwoman Tjornhom: Second. Councilman Litsey: I’ll, go ahead. Councilwoman Tjornhom: Sorry Bryan. Councilman Litsey: No, go ahead. Mayor Furlong: Motion’s been made and seconded. Any further discussion on the motion? 23 Chanhassen City Council - June 8, 2009 Councilwoman Ernst moved, Councilwoman Tjornhom seconded that the City Council approves Planning Case #09-07 as shown in plans dated April 17, 2009 for a 46 foot variance request from the allowed 25 foot crossbar for docks as outlined in the staff report and adopt the attached Findings of Fact and Decision. All voted in favor, except Councilman McDonald who opposed, and the motion carried with a vote of 4 to 1. Mayor Furlong: Very good. Thank you everyone. Appreciate everyone’s involvement in this. That completes our items of business this evening. We’ll move now to council presentations. Any council presentations? Todd Gerhardt: Mayor, council members. We do have a couple here this evening that missed visitor presentations. If you want to do it after council presentations. Mayor Furlong: No, let’s take it right now. Let’s take it right now. Please come up to the podium. If you could identify yourself. Name and address we’d appreciate it. VISITOR PRESENTATIONS: Jim Kramen: My name is Jim Kramen. This is my wife Grace. Mayor Furlong: Good evening. If you could state your address for the record too please. Jim Kramen: Absolutely. It’s 739 Woodhill Drive. What brings out tonight, we recently bought the property about a year ago. What really brings us out tonight is, we’ve noticed there’s been a lot of curbs around our area that have been, really being kind of reconstructed and recently we’ve noticed some potholes that have been fixed in our road but nothing but our curbs haven’t been, this first picture what you see is directly in front of our house the curbs are really just being deteriorated. Being eroded and falling apart. Now that’s because up, kind of up both ways here is essentially, we kind of live at the bottom of a hill. Now all the rain goes right down and it kind of accumulates here and the same with the other side. It goes right down the other side. It comes around and it accumulates there. Well, now this picture right here, and this is after, this is probably a good, almost a day after it’s been raining and it’s still not gone. So not only are the curbs being eroded away but there’s just lack of proper drainage, as you can see. And this is kind of an angle and again this is well after the fact of a light rain, which is really just builds up all throughout here right here. And it’s just eating away at that. Now this is a well after the fact and as you can see the curb is just being gradually eated away. Councilwoman Tjornhom: Can I ask a question? Mayor Furlong: Yep. Councilwoman Tjornhom: I’m sorry, I couldn’t hear what your address was. Jim Kramen: Oh yeah, it’s 739 Woodhill Drive. 24