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CC Staff Report 01-11-10 CITY OF CHANHASSEN 7700 Market Boulevard PO Box 147 Chanhassen, MN 55317 Administration Phone: 952.227.1100 Fax: 952.227.1110 Building Inspections Phone: 952.227.1180 Fax: 952.227.1190 . Engineering Phone: 952.227.1160 Fax: 952.227.1170 Finance Phone: 952.227.1140 Fax: 952.227.1110 Park & Recreation Phone: 952.227.1120 Fax: 952.227.1110 Recreation Center 2310 Coulter Boulevard Phone: 952.227.1400 Fax: 952.227.1404 Planning & Natural Resources Phone: 952.227.1130 Fax: 952.227.1110 Public Works 1591 Park Road Phone: 952.227.1300 Fax: 952.227.1310 Senior Center Phone: 952.227.1125 Fax: 952.227.1110 Web Site www.ci.chanhassen.mn.us Le- _ Ji MEMORANDUM TO: Todd Gerhardt, City Manager FROM: Angie Kairies, Planner I January 11, 2010 O~- DATE: SUBJ: Gleason Hard Surface Coverage Variance 2111 Pinehurst Drive - Planning Case #09-17 PROPOSED MOTION: "The Chanhassen City Council denies an after-the-fact L38% hard-surface coverage variance for an existing driveway and future patio, Planning Case #09-17; and adopts the Findings of Fact and Action." City Council approval requires a majority of City Council present. EXECUTIVE SUMMARY The applicant is requesting a 1.38% hard surface coverage variance to exceed the 25% maximum hard surface coverage limitation within the Single-Family. Residential District, by 248 square feet. Approval of the variance will allow the property owner to keep the existing driveway configuration and permit a future 100 square-foot patio to be constructed in the rear yard. STAFF UPDATE On November 23, 2009, City Council reviewed and tabled action on this item. The applicant submitted a letter to extend the development review deadline to January 20, 2010. Staff was directed to work with the applicant to resolve the impervious coverage variance request. The City Council was of the opinion that the applicant could and should bring the site into compliance with the impervious coverage and eliminate the variance request. The applicant discussed the use of pervious materials, such as pervious concrete or bituminous. The city code does not provide a mechanism that credits pervious materials; rather they are included in the hard surface coverage calculations. If pervious materials were permitted, this option would have been provided to the applicant prior to the variance request. Being that pervious materials are not a viable option to bring the site into compliance with the 25% hard surface coverage limitation, the applicant has opted to proceed with the variance request rather than remove excess hard surface coverage. Chanhassen is a Community for Life - Providing for Today and Planning for Tomorrow Todd Gerhardt January 11,2010 Page 2 of 3 Staff attempted to contact the applicant prior to the meeting regarding the status of the variance request. However, the applicant did not respond to staff's request. BACKGROUND On November 3, 2009 Planning Commission held a public hearing for this item. The Planning Commission voted 4 to 2 to deny the variance request. The decision was less than three-fourths of the members present; therefore, the decision acts as a recommendation to the City Council. The City Council's decision requires a majority of members present. The Planning Commission discussed a number of issues pertaining to the variance request: . The approved driveway proposed on the building permit application was deemed by the builder as not functional. The builder made the decision to increase the area of the driveway, exceeding the hard surface coverage. The homeowner then purchased the home "as is"; not realizing the site did not comply with the hard surface coverage limitation. The homeowner did not create this situation. . Would approval of the request set a precedent for building permits to reflect one driveway, receive approval, then construct a larger driveway and request an after-the-fact variance? . The homeowner would be willing to eliminate the 100 square-foot patio from the request and just request the existing driveway to remain on the site. The revised request would be for a 0.8% or (148 square-foot) variance, as stated in attached letter dated October 30,2009. . Two previous hard-surface coverage variances were denied in the Pinehurst Subdivision: ~ 2101 Pinehurst Drive requested a 3.3% (648 square-foot) variance. ~ 2081 Pinehurst Drive requested a 2.6% (538.25 square-foot) variance. Staff Update Since the November 3,2009 Planning Commission meeting, the erosion issues located on Outlot B, which is owned by the City, have been repaired. RECOMMENDA TION Staff and the Planning Commission recommend the following motion: "The Chanhassen City Council denies an after-the-fact 1.38% hard surface coverage variance for an existing driveway and future patio, Planning Case #09-17; and adopts the Findings of Fact and Action." Todd Gerhardt January 11, 2010 Page 3 of 3 ATTACHMENTS 1. Findings of Fact and Action. 2. Letter of Development Review Extension dated November 23,2009. 3. Letter from homeowner dated October 30,2009. 4. Planning Commission Staff Report Dated November 3, 2009. 5. November 23,2009 City Council Minutes. g:\plan\2009 planning cases\09-17 2111 pinehurst drive variance\1-11-IO executive summary. doc CITY OF CHANHASSEN CARVER AND HENNEPIN COUNTIES, MINNESOTA FINDINGS OF FACT AND ACTION IN RE: Application of U.S. Home Corporation, on behalf of Todd and Amy Gleason, for a 1.38% hard-surface coverage variance for an existing driveway and future patio - Planning Case No. 09- 17. On January 11, 2010, the Chanhassen City Council met at its regularly scheduled meeting to consider the application of U.S. Home Corporation, on behalf of Todd and Amy Gleason, for a 1.38% hard-surface coverage variance from the 25% maximum hard surface coverage limitation for an existing driveway and future patio at 2111 Pinehurst Drive, located in the Single-Family Residential (RSF) District on Lot 22, Block 1, Pinehurst 2nd Addition. The Planning Commission held a public hearing on the proposed variance on November 3, 2009 and recommended denial. The City Council reviewed the Planning Commission minutes, heard testimony from all interested persons wishing to speak, and now makes the following: FINDINGS OF FACT 1. The property is currently zoned Single-Family Residential (RSF). 2. The property is guided by the Land Use Plan for Residential-Low Density (1.2 - 4 units per acre). 3. The legal description of the property is: Lot 22, Block 1, Pinehurst 2nd Addition. 4. The Board of Adjustments and Appeals shall not recommend and the City Council shall not grant a variance unless they find the following facts: a. That the literal enforcement of this chapter would cause an undue hardship. Undue hardship means that the property cannot be put to reasonable use because of its size, physical surroundings, shape or topography. Reasonable use includes a use made by a majority of comparable property within 500 feet of it. The intent of this provision is not to allow a proliferation of variances, but to recognize that there are pre-existing standards in this neighborhood. Variances that blend with these pre-existing standards without departing downward from them meet this criteria. Finding: The literal enforcement of this chapter does not cause an undue hardship. The subject site is 18,000 square feet, which is 3,000 square feet larger than the minimum lot size in the RSF district. The original building permit survey showed a hard surface coverage of 24.88%, which included a future 10' x 10' patio. Upon receipt of the as-built survey, the hard surface coverage exceeded the 25% limitation by 0.8%; this increase was due to the driveway and sidewalk area increasing in size. The builder states the driveway submitted with the building permit was inadequate for the size and use of the garage, thus it was increased. In addition to the increased hard surface coverage, the applicant is also 1 requesting a lO'x 10' patio in the rear yard. In 2006 the Pinehurst subdivision was re- platted due to staff's concerns with the potential hard surface coverage on the lots. The builder was aware of the 25% hard surface coverage limitation prior to submitting the building permit. The literal enforcement of the code does not cause an undue hardship and is a self-created hardship. b. The conditions upon which a petition for a variance is based are not applicable, generally, to other property within the same zoning classification. Finding: The conditions upon which this variance is based are applicable to all properties within the Pinehurst 2nd Addition (RSF). The RSF district limits the hard surface coverage to 25 % of the total lot area. In 2007, there were two requests for hard surface coverage variances within this subdivision, one of which was an after-the-fact variance. Both requests were denied. c. The purpose of the variation is not based upon a desire to increase the value or income potential of the parcel of land. Finding: The intent of the proposed addition is not based on the desire to increase the value of the home. The intent of the request is to maintain the larger driveway and sidewalk as well as construct a 100-square foot patio in the rear yard. d. The alleged difficulty or hardship is not a self-created hardship. Finding: The request to exceed the 25% hard surface coverage limitation is a self-created hardship. The building permit submitted in August 2007 showed the site with 24.88% hard surface coverage. The proposed hard surface coverage included the house, sidewalk, driveway, and a 100 square-foot future patio. The driveway increased 240 square feet and the sidewalk increased 30 square feet during construction. The builder stated the driveway was inadequate for the size and use of the garage; however, there are alternatives to realign the driveway and comply with the 25% hard surface coverage requirement. 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. Finding: The granting of a variance may be detrimental to the public welfare or injurious to other land or improvements in the neighborhood in which the parcel is located, in that additional storm water runoff is generated from the hard surface on the property. 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 increase the danger of fire or endanger the public safety or substantially diminish or impair property values within the neighborhood. Finding: The proposed increased hard surface coverage will not impair adequate supply of light and air to adjacent property or substantially increase the congestion of the public streets or increase the danger of fire or endanger the public safety; however, it could diminish property values within the neighborhood. 2 5. The planning report #09-17, dated November 3,2009, prepared by Angie Kairies, et aI, is incorporated herein. ACTION The Chanhassen City Council denies an after-the-fact 1.38% hard surface coverage variance for an existing driveway and future patio, Planning Case #09-17. ADOPTED by the Chanhassen City Council on this 11 th day of January, 2010. CHANHASSEN CITY COUNCIL BY: Its Mayor G:\PLAN\2009 Planning Cases\09-17 2111 Pinehurst Drive Variance\CC Findings of Fact l-ll-IO.doc 3 II ! , i I II 11 Ii ! I ....-....- ......... .. . '.'..." ........... --ft.... ............-... II I' ....... .......... ._......... ... .... .....il. ..... ..............._... ". '..' ............ ................_................_. ....._ ._..__...._.._........__......._...__ ..........,....,._........,.....__..._................_...... . ... u.. -". -.. - -- - ........-... -.. - - -...- \ I ...... ...-.-.'.- -.. ...-Jt......-.----... I' -.' ,.....-.......-.. "1'1'." ,.... ."-'---. Ii ...........,.... . . ...... '-iT'" . ,.......-................ i' ! I ~ ~ . '. __. _ . 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'---- .... .. . -.. ...~ -t..... .1~lxS;frn.LQ.c-C(t1f..2euc:~h~(t:~... ....... '---_._.~-_. October 30,2009 To: Chanhassen Planning Commission Fr: Todd and Amy Gleason Re: 2111 Pinehurst Drive, Chanhassen Su: Nov 3rd After-the-fact variance hearing Members of the Planning Commission - Thank you for allowing us to submit written comments as they pertain to the November 3,2009 variance hearing associated with our property. Unfortunately, because of work- related travel conflicts, we will be unable to attend the hearing. We understand several representatives from the building company (Lennar) responsible for construction of our home / hardscape will be at the hearing. We submit this written request to strongly urge the commission for variance approval. We understand and are sensitive to the local zoning requirements. The staff report recommending against the variance may be technically correct and certainly we are sensitive to the natural reluctance to set precedence. However, clearly the variance hearing process exists for a reason - and therefore, the case-by-case nature of the hearing process must at times yield a variance approval. Here are the facts or circumstances as we see them: 1) We moved from NJ to MN in late 2007 and targeted Chanhassen given its community reputation. 2) In May, 2008 we purchased and moved into 2111 Pinehurst Drive. 3) We did not design the home or manage the construction...the home was already built when we purchased the home. Additionally, we did not request any property modification prior to purchase. 4) Prior to moving in the city inspectors (we are not sure of exact titles) notified Lennar that certain windows did not meet code. Lennar replaced the specific windows and we were provided with an occupancy certificate. At that time we fully expected the residence met all code/zoning (why wouldn't we). 5) Subsequent to May of 2008, we have made significant enhancements to landscaping, decking, etc., but have added no hardscape. 6) In December 2008 (7 months after moving in) we received notification that our current property exceeded hardscape by 148 sq/ft.. .and that we could not add the "in design plan" 100 sq/ft patio. 7) Over the past months we have confirmed with Lennar (builder) that through no fault of our own the driveway was constructed larger than had been designed. We have also concluded with Lennar that the "designed" driveway would greatly detract from the functionality of the driveway / garage space. In short, the Gleasons (us) are the only people that have a financial and emotional impact on the decision rendered in this hearing. We occupied the home for 7 months prior to notification that the hardscape issue existed. And, we made investments and purchases we otherwise may not have made. What else could C/o wrong? Our experience, to date, with the city offices of Chanhassen has been less than stellar. While not directly germane to the topic of hardscape we have struggled to understand how the following incidences could also occur in the 12 months since we purchased the home: 1) During the inspection of our newly constructed deck the city inspector made the erroneous assumption that we were also finishing our basement without a permit. The inspector saw an electrician in our basement and jumped immediately to the conclusion that we were finishing our basement without a permit. The inspector did not ask us, the home owners, for confirmation or clarification. Instead, we were slapped with an embarrassing "cease and desist" order which shown brightly on our door for days. We spent time and energy (and frustration) getting this error corrected and removed from our record (we assume). We never received an apology and were specifically treated with disdain when we contacted the named inspector. 2) At the edge of our property is a substantial retaining wall. The wall was constructed, inspected and approved prior to our purchase of the property. A portion of the wall is on our property and certain sections are on city property immediately adjacent to our yard. Despite "passing inspection" the wall allows for erosion and numerous times, large and clearly dangerous holes exist. We have continuously repaired holes on our property to ensure safety and responsibility. Despite numerous conversations with the city to have them repair a very large (8 feet in diameter) hole on the city property, no corrective action has occurred. The individual we spoke with (Terri Jeffries) has not fulfilled their commitment to fix the hole. We also spoke with the city Engineering Office as well as Terri and it was indicated the wall was not built correctly. We, the home owner, are now responsible for repairs or continuous erosion issues. Congratulations. So, while admittedly not directly pertinent to the hardscape variance, I'd remind the committee that we are residents of Chanhassen and struggling to understand how all of this is our responsibility? Proposal We request approval of the variance. Approval would avoid, in our opinion, unnecessary and potentially costly modifications to our driveway. If necessary, we agree to not install the patio or add any additional hardscape to our property. In essence, what we're asking is for approval to keep things the way they are. If approved, we acknowledge appreciation but do not feel as though we've won anything. Instead, approval would be great but honestly just allow us to cross one of the disappointments off the list. Sincerely, Todd and Amy Gleason Residents of Chanhassen CC DATE: 11/23/09 ITJ PC DATE: 11/3/09 CITY OF CHANHASSEN REVIEW DEADLINE: 12/11/09 CASE #: 09-17 BY: AK, AF, JM, TJ PROPOSED MOTION: A. "The Chanhassen City Council Planning Comm.ission, as the Board of .'\ppeals and ..^~djustments, denies an after-the-fact 1.38% hard surface coverage variance for an existing driveway and future patio, Planning Case #09-17; and adoption of the Findings of Fact And .A~ction Recommendation." Or, B. "The Chanhassen City Council approves an after-the-fact 0.8% hard surface coverage variance for an existing driveway and denies 0.58% hard surface coverage variance for a future patio, Planning Case #09-17; and adoption ofthe Findings of Fact And Action." PROPOSAL: The applicant is requesting an after-the-fact 1.38% hardcover variance to construct a driveway and patio on property zoned Single-Family Residential (RSF). LOCATION: 2111 Pinehurst Drive, Lot 22, Block 1, Pinehurst 2nd Addition APPLICANT: Jim Weaver US Home Corporation 935 East Wayzata Boulevard Wayzata, MN 55391 Todd and Amy Gleason 2111 Pinehurst Drive Chanhassen, MN 55317 PRESENT ZONING: Single Family Residential (RSF) 2030 LAND USE PLAN: Residential- Low Density (Net Density Range 1.2 - 4u/Acre) ACREAGE: 0.41 (18,000 square feet) DENSITY: N/ A LEVEL OF CITY DISCRETION IN DECISION MAKING: The City's discretion in approving or denying a variance is limited to whether or not the proposed project meets the standards in the Zoning Ordinance for a variance. The City has a relatively high level of discretion with a variance because the applicant is seeking a deviation from established standards. This is a quasi-judicial decision. PROPOSAL SUMMARY The applicant is requesting a variance to allow a 26.38% hard surface coverage. The Zoning Ordinance allows a maximum of25% hard surface coverage. The property is zoned Single-Family Gleason Variance Planning Case # 09-17 November 3,2009 Page 2 of8 Residential (RSF). It is located on Lot 22, Block 1, Pinehurst 2nd Addition. Access to the site is gained off of Pinehurst Drive. On August 27, 2007, the City issued a building permit for the subject site that reflected a 24.88% hard surface coverage. The plans had adequate area to accommodate a future patio. Following completion of the building, the builder provided the City with an as-built survey. The as-built survey showed an increase in the sidewalk and driveway widths which resulted in an increase in hard surface coverage beyond the maximum 25% permitted by City Code. Staff notified the builder, who notified the homeowner. The builder stated that the proposed driveway was not feasible for the position of the garage and was therefore increased. The builder then submitted a variance request for the subject site. Staffis recommending denial ofthe applicant's request based on the fact that the applicant has reasonable use of the property; the approved building permit met the 25% hard surface coverage requirement, which included a 100-square foot future patio. Alternatives exist that comply with the hard surface coverage. The total hard surface coverage on the site must be reduced by 148 square feet. Adequate access can be provided to the garage using less hard surface. Approval of this application could set a precedent within the Pinehurst subdivision. APPLICABLE REGULATIONS Chapter 20 Division 3. Variances Section 20-615 (4) RSF District Requirements; Hard Surface Coverage Gleason Variance Planning Case # 09-17 November 3,2009 Page 3 of8 Sec 20-905 (6) Single-family dwellings BACKGROUND The property is located on Lot 22, Block 1, Pinehurst 2nd Addition, which is zoned Single- Residential Family (RSF). The subject property has an area of 18,000 square feet, frontage of 91.2 feet and approximate depth of 141.30 feet. The minimum lot dimensions in the RSF district are 15,000 square-foot lot area, 90-foot lot frontage and 125-foot lot depth. The subject site exceeds the minimum requirements for the RSF district. The building permit for the proposed home, driveway, and front sidewalk on the site was approved on August 28,2007. The building permit reflected a hard surface coverage of24.88%. The maximum impervious surface in the RSF district is 25%. The proposed 24.88% coverage included a 100-square foot future patio as required by City Code. Based on the building permit application, there was up to 122 square feet of hard surface in which to accommodate a patio. #' {I .f?4' \, \ HARQ_G9~1L~_UbI'-TIQtl:! LOT AREA HOUSE I POf\'CH ORIVEWAY/SIDEWALK ~~OPATIO TOT N.. HARO COVl:R P'ERCENT 01' ~tN1D COVEll = IS,COO so. FT. = 3.45350, FT. = 925SQ, FT. ~ 1Ql.1J:i..ct,ll ~ 4,47a sa. FT. 4.~78/ 18,000' 24.83';4 Gleason Variance Planning Case # 09-17 November 3, 2009 Page 4 of8 The developer was aware of the limited availability of additional square footage for future improvements or additions within the Pinehurst Subdivision. In 2006, as part of the approval process of the Pinehurst Development, staff expressed concern over the potential future hard surface coverage within the subdivision. The proposed lots were too small to accommodate the size of homes that were proposed in this development. As a result, Pinehurst was re-platted in 2006 from 43 lots to 41 lots to increase the area of some of the lots. Also, on July 6, 2006, in an attempt to avoid future hard cover issues due to the increased size of homes on lots, the City amended Sec. 20-905 of the City Code. This section requires all applicants requesting a building permit for the construction of a new home to show a minimum 10' x 10' patio area. This section reads as follows: Single-family dwellings (6) "Where access doors are proposed from a dwelling to the outdoors, which does not connect directly to a sidewalk or stoop, a minimum ten-feet by ten-feet hard surface area shall be assumed. Such surface area must be shown to comply with property lines, lake and wetland setbacks; may not encroach into conservation or drainage and utility easements; and shall not bring the site's hard surface coverage above that permitted by ordinance." ANALYSIS The applicant is requesting a 1.38% hard surface coverage variance from the 25% maximum hard surface coverage. This variance would permit the existing size of the driveway and sidewalk, as well as a 10' x 10' patio. The lot area is 18,000 square feet. Based on the 25% maximum coverage allowed, the home, driveway, walkway, future patio, etc. may occupy 4,500 square feet. The original building permit showed 4,478 square feet of hard cover. The remaining impervious surface allowed was 22 square feet. 1$:0<:' s<;1 "'{> Building Permit Survey As-built Survey The size of the driveway was increased from the original building permit by 240 square feet and the sidewalk from the front door to the driveway was increased by 30 square feet. This brought the site to 25.8% (excess of 148 square feet); this does not include the future 100 square foot patio as shown in the original approval. Gleason Variance Planning Case # 09-17 November 3,2009 Page 5 of8 In addition to the increased driveway and sidewalk area, the applicant is also requesting a 100 square foot patio in the rear yard. The increased driveway and proposed patio exceed the 25% hard surface coverage limitation by 1.38% or 248 square feet. Ordinance Building Permit Existing Proposed Increase Lot Area 18,000 18,000 18,000 18,000 House 3,309 3,309 3,309 Stoop 144 144 144 Driveway 822 1,062 1,062 +240 Sidewalk 103 133 133 +30 Future patio 100 100 HSC 4,500 4,478 4,648 4,748 +248 Percentage 25% 24.9% 25.8% 26.38% + 1.38% A variance from the maximum 25% hard surface coverage may set a precedent in this neighborhood, as well as other neighborhoods, to apply for variances for hardscape improvements beyond the restrictions set forth in the City Code, as well as encourage after-the- fact variance requests. In 2007 there were two hard surface coverage variance requests within the Pinehurst Development, one of which was an after-the-fact request. Both variances were denied. Site Characteristics The topography of the site slopes in the rear yard from a high of elevation of 1045.1 at the back of the house to 1038 at the rear property line. There is an outlot containing a storm water pond located just south of the site. The runoff from these lots will run directly into the storm water pond. While increasing the hard surface coverage for one lot may not impact the storm water pond significantly; increasing the hard surface coverage for a number oflots in this development will significantly impact the storm water system. The water from this pond eventually runs into the Minnesota River. According to the Hydrology Guide for Minnesota by the V.S.D.A. Soil Conservation Service, the recommended hard surface coverage for a one-half acre (approximately 21,000 square-foot) lot is 25%. This information is based on the Hydrologic Curve which translates to the amount of runoff produced from a particular surface. The Hydrologic Curve for the Pinehurst Subdivision Gleason Variance Planning Case # 09-17 November 3,2009 Page 6 of8 is 72. This is consistent with the U.S.D.A Soil Conservation Service for soil types Band C, soils containing non-permeable material, such as clay. Outlot B South of the subject site is an outlot, platted as part of the Pinehurst Subdivision, which contains a retaining wall and stormwater pond for the development. Outlot B is owned and maintained by the City. Staff researched the possibility of allowing the homeowner to purchase a portion of Outlot B. However, based on review of the plans and storm water calculations for the development, it is not recommended to sell a portion of Outlot B. The basis for this conclusion is due to the pond's modeled high-water level relative to the bottom of the retaining wall. During a 100-year storm event, the pond is designed to bounce to an elevation of 1027.2 feet. Under the proposed plan, the toe of the retaining wall was to be at an elevation of 1028 feet which would have allowed for 0.8 feet of free board. However, the Certificate of Survey for the grading as-built shows that the base ofthe wall is at an elevation of 1025.9 feet which is less than two feet above the normal water level for the pond. Thus, the wall goes under water. In addition, there is a stormwater outlet just south ofthe subject site directing runoff into the stormwater pond. Relocating the property line to the south of the structure would put the outlet Gleason Variance Planning Case # 09-17 November 3,2009 Page 7 of8 on private property, making it difficult to ensure the outlet is functioning and maintained properly. The outlet is necessary for the runoff of the site and should remain part of Outlot B. Permitted Use The site is zoned RSF, Single-Family Residential. Reasonable use of a property within the RSF district is a single-family home with a two-car garage. A single- family home with a three-car garage is currently constructed on the property. The driveway is aligned virtually straight out from the three car garage. The width is 30 feet at the garage and 24 feet at the right-of-way. The width could be reduced on the left side of the two-car garage and angled inward as it comes in contact with the right-of-way and Pinehurst Drive. . -..-...... ......... -';;'-.- _. ~-... ~..;.:- ;..-. . The driveways shown to the right are adjacent to three-car garages within the RSF district. The width at the garage ranges from 26 to 28 feet. The width at the right-of-way ranges from 17 to 20 feet. Reduction of the driveway width will result in an overall reduction in hard surface coverage and provide adequate access to the garage. RECOMMENDATION Staff recommends that and the Planning Commission recommend the City Council adopt the following motion: A. "The Chanhassen City Council Planning Commission, as the Board of Appeals and L\djustments, denies an after-the-fact 1.38% hard surface coverage variance for an existing driveway and future patio, Planning Case #09-17, and adoption of the findings of fact and aetiefl recommendation." Or, Gleason Variance Planning Case # 09-17 November 3,2009 Page 8 of8 B. "The Chanhassen City Council approves an after-the-fact 0.8% hard surface coverage variance for an existing driveway and denies 0.58% hard surface coverage variance for a future patio, Planning Case #09-17; and adoption of the Findings of Fact And Action." ATTACHMENTS 1. Findings of Fact and Aetiofl Recommendation. 2. Development Review Application. 3. Reduced copy of proposed lot survey. 4. Reduced copy of as-built lot survey. 5. Public Hearing Notice and Affidavit of Mailing. g:\plan\2009 planning cases\09-17 2111 pinehurst drive variance\cc staff report.doc CITY OF CHANHASSEN CARVER AND HENNEPIN COUNTIES, MINNESOTA FINDINGS OF FACT AND RECOMMENDATION IN RE: Application of U.S. Home Corporation, on behalf of Todd and Amy Gleason, for a 1.38% hard-surface coverage variance for an existing driveway and future patio - Planning Case No. 09- 17. On November 3,2009, the Chanhassen Planning Commission met at its regularly scheduled meeting to consider the application of U.S. Home Corporation, on behalf of Todd and Amy Gleason, for a 1.38% hard-surface coverage variance from the 25% maximum hard surface coverage limitation for an existing driveway and future patio at 2111 Pinehurst Drive, located in the Single-Family Residential (RSF) District on Lot 22, Block 1, Pinehurst 2nd Addition. The Planning Commission conducted a public hearing on the proposed variance that was preceded by published and mailed notice. The Planning Commission heard testimony from all interested persons wishing to speak and now makes the following: FINDINGS OF FACT 1. The property is currently zoned Single-Family Residential (RSF). 2. The property is guided by the Land Use Plan for Residential-Low Density (1.2 - 4 units per acre) . 3. The legal description of the property is: Lot 22, Block 1, Pinehurst 2nd Addition. 4. The Board of Adjustments and Appeals shall not recommend and the City Council shall not grant a variance unless they find the following facts: a. That the literal enforcement of this chapter would cause an undue hardship. Undue hardship means that the property cannot be put to reasonable use because of its size, physical surroundings, shape or topography. Reasonable use includes a use made by a majority of comparable property within 500 feet of it. The intent of this provision is not to allow a proliferation of variances, but to recognize that there are pre-existing standards in this neighborhood. Variances that blend with these pre-existing standards without departing downward from them meet this criteria. Finding: The literal enforcement of this chapter does not cause an undue hardship. The subject site is 18,000 square feet, which is 3,000 square feet larger than the minimum lot size in the RSF district. The original building permit survey showed a hard surface coverage of 24.88%, which included a future 10' x 10' patio. Upon receipt of the as-built survey, the hard surface coverage exceeded the 25% limitation by 0.8%; this increase was due to the driveway and sidewalk area increasing in size. The builder states the driveway submitted with the building permit was inadequate for the size and use of the garage, thus it was increased. In addition to the increased hard surface coverage, the applicant is also requesting a lO'x 10' patio in the rear yard. In 2006 the Pinehurst subdivision was re- I platted due to staff's concerns with the potential hard surface coverage on the lots. The builder was aware of the 25% hard surface coverage limitation prior to submitting the building permit. The literal enforcement of the code does not cause an undue hardship and is a self-created hardship. b. The conditions upon which a petition for a variance is based are not applicable, generally, to other property within the same zoning classification. Finding: The conditions upon which this variance is based are applicable to all properties within the Pinehurst 2nd Addition (RSF). The RSF district limits the hard surface coverage to 25% of the total lot area. In 2007, there were two requests for hard surface coverage variances within this subdivision, one of which was an after-the-fact variance. Both requests were denied. c. The purpose of the variation is not based upon a desire to increase the value or income potential of the parcel of land. Finding: The intent of the proposed addition is not based on the desire to increase the value of the home. The intent of the request is to maintain the larger driveway and sidewalk as well as construct a 100-square foot patio in the rear yard. d. The alleged difficulty or hardship is not a self-created hardship. Finding: The request to exceed the 25% hard surface coverage limitation is a self-created hardship. The building permit submitted in August 2007 showed the site with 24.88% hard surface coverage. The proposed hard surface coverage included the house, sidewalk, driveway, and a 100 square-foot future patio. The driveway increased 240 square feet and the sidewalk increased 30 square feet during construction. The builder stated the driveway was inadequate for the size and use of the garage; however, there are alternatives to realign the driveway and comply with the 25% hard surface coverage requirement. 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. Finding: The granting of a variance may be detrimental to the public welfare or injurious to other land or improvements in the neighborhood in which the parcel is located, in that additional storm water runoff is generated from the hard surface on the property. 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 increase the danger of fire or endanger the public safety or substantially diminish or impair property values within the neighborhood. Finding: The proposed increased hard surface coverage will not impair adequate supply of light and air to adjacent property or substantially increase the congestion of the public streets or increase the danger of fire or endanger the public safety; however, it could diminish property values within the neighborhood. 2 L 5. The planning report #09-17, dated November 3, 2009, prepared by Angie Kairies, et aI, is incorporated herein. RECOMMENDATION The Chanhassen Planning Commission, as the Board of Appeals and Adjustments, recommends that the City Council deny an after-the-fact 1.38% hard surface coverage variance for an existing driveway and future patio, Planning Case #09-17. ADOPTED by the Chanhassen City Council on this 3rd day of November, 2009. CHANHASSEN PLANNING COMMISSION BY: Its Chair G:\PLAN\2009 Planning Cases\09-17 2111 Pinehurst Drive Variance\PC Findings of Fact.doc 3 Planning Case No. Oq - \1 CITY OF CHANHASSEN 7700 Market Boulevard - P.O. Box 147 Chanhassen, MN 55317 - (952) 227-1100 CITY OF CHANHASSEN RECEIVED SEP 2 4 2009 DEVELOPMENT REVIEW APPLICATION CHANHASSEN PLANNING DEPT PLEASE PRINT Applicant Name and Address: \ 18 ~\'C\,{0 CJ~'1~(ml("\ ~ 5S ""E Y'-J l'kl..l, 'f)f~ ~ ycl . W n. t ~Q.Cdd 10.r:;I ~~::t2,~ \ Contact. ~t'lJ()~e 'TOC'\ \r-€~ l~ \ffi 'r-Je.o..v er Phone:9""2B.. 8L\q. ~Fax~'Sa' a.<-\C\. ~-=t-':::> Email: (\n_:,o\~....t"oC~~\.QJ"\fYLY" . (om ()) \ "~t"\ fY\ Owner Name and Address: }J y-. ~ N '( 'S . ('"" W(\&,\\\ A- \ \ \ 'V \ 'f"\e'x\\ l...'f'S+ "Dr. (' '0C\ \'"\ M ~"3-.-e r'\ I J-.j 'N ":::>':) ~ C \ Contact: Phone~'j8.5(3.9,\"":f3 Fax: Email: tecB. '0 \~C1S6n CQ peD-tcU. '1. LO ('(', NOTE: Consultation with City staff is reauired prior to submittal, including review of development plans Comprehensive Plan Amendment Temporary Sales Permit Conditional Use Permit (CUP) Vacation of Right-of-Way/Easements (VAC) ~Variance (VAR) #'2..to Interim Use Permit (IUP) Non-conforming Use Permit Wetland Alteration Permit (WAP) Planned Unit Development* Zoning Appeal Rezoning Zoning Ordinance Amendment Sign Permits Sign Plan Review y... Notification Sign - $200 (City to install and remove) Subdivision* x ~ for Filing Fee~orney Cost** UP/SPR/VAc:fI:Y.@NAP/Metes & Bounds - $450 Minor SUB TOTAL FEE $ ~ ~ 1t'f5D Site Plan Review (SPR)* 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. SCANNED WETLANDS PRESENT: YES ~ NO PRESENT ZONING: t\\Y\~1.0, ~rY\\\~\ REQUESTED ZONING: . U 1 'Pr PRESENT LAND USE DESIGNATION, ~~. . ~ ~ rr. \, \ REQUESTED LAND USE DESIGNATION: REASON FOR REQUEST: ~P(1_~, 1:J:R 0. ~(' hR ('1 \-.-9 -H-f'r- FOR SITE PLAN REVIEW: Include number of existing employees: and new employees: 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. q I~Jo~ Date 9/19/09 Date G:\PLAN\Forms\Development Review Application.DOC Rev. 1/08 SCANNED September 11, 2009 City of Chanhassen 7700 Market Blvd Chanhassen, MN 55317 To Whom It May Concern: We are requesting an impervious surface variance for 2111 Pinehurst Drive on behalf ofthe homeowner. The constructed home (include driveway and sidewalk) is currently over the impervious surface maximum by .8%. The size of the driveway changed from what was originally proposed in the building permit survey. The proposed driveway was inadequate to support the size and use of the garage for this home. The driveway built today is wider, thus causing the slight increase in impervious surface. In addition, this homeowner would like the ability to build a small patio offthe back of his home. Ifthis patio is added, it would increase the total impervious surface to 26.37%. When reviewing this variance application, we respectfully request the staff and City Council of Chanhassen to look at the big picture. This particular homesite backs up to an open outlot, which could be added to the homesite's overall pervious surface calculation. The homeowner has been living in this home with this larger driveway and has acquired belongings based on this driveway. To force the homeowner to change their driveway or way of living at this point would be hardship. With this variance request, we are requesting to work with the City of Chanhassen to find a reasonable solution to this minor error. Below is our point by point narrative for the variance request. a. That the literal enforcement of this chapter would cause undue hardship. Undue hardship means that the property cannot be put to reasonable use because of its size, physical surroundings, shape or topography. Reasonable use includes a use made by a majority of comparable property within 500 feet of it. The intent of this provision is not to allow a proliferation of variances but to recognize that and develop neighborhoods pre-existing standards exist. Variances that blend with these pre-existing standards without departing downward from them meet this criteria. The literal enforcement of the 25% impervious surface prevents this homeowner from the quiet enjoyment of his home. The driveway that was ultimately constructed was built to fit the type and intended use of the garage with this home. This homeowner has purchase items based on this driveway and its intended use. To take away the driveway would limit his use of his whole home. The literal enforcement of the 25% impervious surface prevents this homeowner from the quiet enjoyment of his backyard Prior to finding out that the driveway was constructed larger than originally shown, we had always anticipated on a 10' x 10' patio in the backyard of this home. It would be a hardship to take away something based on the driveway error. SCANNED 545 Indian Mound E., Wayzata, MN 55391 · Phone: 952-473-0993 · Fax: 952-476-0194 LENNAR.CDM e OPPORlUNrrY b. The conditions upon which a petition for a variance is based are not applicable, generally, to other property within the same zoning classification. This impervious request is specific to this homeowner due to the fact that there was an understanding when he purchased the home. He has desired to build a 10' x 10' patio in his rear yard We had calculated this with the original survey. However, the original driveway was not sized appropriately, thus putting him over the 25% maximum coverage. Without a variance, he is unable to have the patio that he originally desired, nor the driveway that is now sized appropriately for him home. c. The purpose of the variation is not based upon a desire to increase the value or income potential of the parcel of land. The purpose of this variance application is not for profit or income. d. The alleged difficulty or hardship is not a self created hardship. This hardship was not created by the homeowner. It was an error on the builder's part for not having an appropriate sized driveway on the original survey. 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. The granting of this variance will not be detrimental to the public or cause injury. f. The proposed variation will not impair an adequate supply of light and air to adjacent property or substantially increase the congestion ofthe public streets or increases the danger of fire or endanger the public safety or substantially diminish or impair property value within the neighborhood. The proposed variation will not impair the supply of light or air to adjacent property. It will not create congestion of the public streets. In fact, by granting this variance and providing this homeowner with an adequately sized driveway, they will be less likely to store their vehicles in the street, thus reducing potential congestion. This proposed variation will also not impair neighboring property values. If you have any questions, please contact us at 952-249-3000 Sincerely, LENNAR CORPORATION ~- .,----~ SCANNED .liaH t~x j III E I ~t I I ~ tl ~ II ~ I ~~ ~ ~ ~~. fi 15 ~; ~ i ill 15 I ... !!. 1- * 2 ~ K- e~ ;8 _co c. ~I ~$ ~~ i: dS J!/'6 "'... i'i~ lljl& Ig; ~j~ !gW :.g i=~ ~b c z ... '" l:! => :<: W z ii: oi 'g .. 0( i o 10 ~ o j ~ ~ ~ 'S ~ 10 " .. ~ iiI ~zm :<0 ~~ N~ ~ 'i i t ~ i <I> '" '!l o ii s~ U Jl" :55 8'" ~I ,,~ /!~ !I U "dl S,s hi :Ii'" .." ,rg> ~i ~~ ~.c ..~ 0'" zS .dl " JO ~ ~ ~ ~ 11 fJ i ~ <>. ;j' ~: 1 :;~ -. 55, g 'j c: e '9.~ .. ~fi ~ ~8 J UJ t'g ! ~J1 ~0 ...c 5-! ~i! if} h ~~ "" ,g'" ~~ ~i .~i ill" 1l~ 0'" 3~ i .. t '" I 4A ~ 8 i " .. JO '" ~ t: t:t: tll g g - ~ ! 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Engelhardt, being first duly sworn, on oath deposes that she is and was on October 22, 2009, the duly qualified and acting Deputy Clerk of the City of Chanhassen, Minnesota; that on said date she caused to be mailed a copy of the attached notice of Public Hearing for Variances to 2111 Pinehurst Drive - Planning Case 09-17 to the persons named on attached Exhibit "A", by enclosing a copy of said notice in an envelope addressed to such owner, and depositing the envelopes addressed to all such owners in the United States mail with postage fully prepaid thereon; that the names and addresses of such owners were those appearing as such by the records of the County Treasurer, Carver County, Minnesota, and by other appropriate records. Subscribed and sworn to before me thi~hctay of Cx_+e..6e t""" , 2009. 1" MEUW\SSEN ) K\M. . 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BEN & MARGARET L1AO 3645 FORESTVIEW LN PLYMOUTH MN 55441-1336 CHARLES R & BEVERLY J JACKSON 2110 CRESTVIEW DR EXCELSIOR MN 55331-8009 DOUGLAS G & SARAH P HIPSKIND 2061 PINEHURST DR CHANHASSEN MN 55317-4578 GREGORY S LOHRENZ 2165 LAKE LUCY RD CHANHASSEN MN 55317-6705 JOHN MARK & JANICE RAE MOBERG 6738 MANCHESTER DR CHANHASSEN MN 55317-6700 LARRY A & SUE A MARTY 2117 LAKE LUCY RD CHANHASSEN MN 55317-6705 OJARS A PAPEDIS TRUSTEE OF 0 PAPEDIS TRUST 2101 PINEHURST DR CHANHASSEN MN 55317-4579 RICHARD & MARIE JENNINGS 2021 EDGEWOOD CT CHANHASSEN MN 55317-4577 SCOTT D & CYNTHIA L BOEDDEKER 6710 MANCHESTER DR CHANHASSEN MN 55317-6700 THOMAS J WOODS 2031 EDGEWOOD CT CHANHASSEN MN 55317-4577 BRIAN K & JOAN 0 SCHIMKE 2040 HIGHGATE CIR CHANHASSEN MN 55317-6704 DANIEL C & JANE A MCKOWN 2171 PINEHURST DR CHANHASSEN MN 55317-4579 DUANE R & SUSAN D MORRIS 343 SYDMOR DR E BOISE ID 83706-5668 JAYSON C DREHER 2144 LAKE LUCY RD CHANHASSEN MN 55317-6705 JOSHUA T KRIENKE & CHRISTINA A KRIENKE 2375 STONE CREEK DR CHANHASSEN MN 55317-7403 LEIGH STOCKER BERGER 2140 PINEHURST DR CHANHASSEN MN 55317-4579 PAUL S TUNGSETH 2051 CRESTVIEW DR EXCELSIOR MN 55331-8008 ROBERT A JR & BRENDA KNESS 2121 CRESTVIEW DR EXCELSIOR MN 55331-8010 SCOTT D & SONYA B SCHROEDER 2081 PINEHURST DR CHANHASSEN MN 55317-4578 TODD R & AMY A GLEASON 2111 PINEHURST DR CHANHASSEN MN 55317-4579 BRUCE S & HELEN TERESA SMITH 9 HAWKINS DR NORTHPORT NY 11768-1527 DANIEL J DOHSE & MAR IT S LEE- DOHSE 2058 HIGHGATE CIR CHANHASSEN MN 55317-6704 ERIC W & GRETCHEN G LOPER 2076 HIGHGATE CIR CHANHASSEN MN 55317-6704 JOHN M & NICOLE L THAYER 2122 LAKE LUCY RD CHANHASSEN MN 55317-6705 KEITH K & CHRISTINE M CLARK 6620 CHESTNUT LN CHANHASSEN MN 55317-4580 MICHAEL D & DEBRA H ANDERSON 6681 AMBERWOOD LN CHANHASSEN MN 55317-4582 PLOWSHARES DEVELOPMENT LLC 1851 WEST LAKE DR #550 CHANHASSEN MN 55317-8567 S R SOMURI & NISHA AGRAWAL 2091 PINEHURST DR CHANHASSEN MN 55317-4578 STEVEN S & LORI A ABBLETT 2081 CRESTVIEW DR EXCELSIOR MN 55331-8008 TONKA DEVELOPMENT LLC ATTN: MARY 18001 HIGHWAY 7 MINNETONKA MN 55345-4150 U S HOME CORP 935 EAST WAYZATA BLVD WAYZATA MN 55391-1849 WILLIAM F & JEANNE A KRAKE 6739 MANCHESTER DR CHANHASSEN MN 55317-6700 WILLIAM V & NANCY M SWEARENGIN TRUSTEES OF FAMILY TRUST 2080 CRESTVIEW DR EXCELSIOR MN 55331-8007 XUEBING FENG & XIAOGUANG DENG 6724 MANCHESTER DR CHANHASSEN MN 55317-6700 YURIFARBER 2135 LAKE LUCY RD CHANHASSEN MN 55317-6705 Chanhassen City Council- November 23,2009 Councilman Litsey: It's probably against fire code. Todd Gerhardt: No candles. GLEASON VARIANCE, 2111 PINEHURST DRIVE (LOT 22, BLOCK 1, PINEHURST 2ND ADDITION): REQUEST FOR AN AFTER-THE-FACT HARD SURFACE COVERAGE VARIANCE. APPLICANT: US HOME CORPORATION. Kate Aanenson: Thank you Mayor, members ofthe City Council. The item before you, 2111 Pinehurst Drive is part of a subdivision where we've had a couple other requests for variance. This item did appear before the Planning Commission on November 3rd and I'll circle back and talk about that in a minute. Located in the Pinehurst neighborhood just off of Galpin. 1.38% hard coverage is being requested from the 25% for additional hard coverage. All site plans go through the, as they're gone through the different departments we do look at the hard cover requirements of this permit as it was issued did meet the hard surface requirements. You can see the site plan itself and then the calculation on the right. After they're built they are requested to show an as-built survey. So at the time that the as-built survey was submitted back to the city, so the permit was issued on August 2ih and then back when the, on December of '08 when the survey was submitted, you can see the difference in the site plan or the layout itself which included the driveway configuration increasing and the sidewalk itself. So staff did inform the builder that it was in error and the builder did inform the homeowner that it did not meet that so they were in non-compliance with that. Again as a part of the city's ordinance we do require a back patio on all lots. A 10 by 10. We found that, that was one way that some of the builders were finding a way to meet the requirements by leaving that off and we felt it was important when there is a patio door that at a minimum we provide that 10 by 10 and that was left off. In reviewing the calculations where you can see what the building permit showed and then how it went up for the percentage of square foot. The owner is requesting that they leave the driveway and they would forego the patio in the back. The Planning Commission struggled a lot with this. I think some of the confusion came in and we put two motions in place for you on your recommendation. The applicant, or someone representing the builder has stated that they didn't feel that that driveway worked as itself. Now if you went through the neighborhood, most the homes are built that way with the neck down and we've had two other requests in this neighborhood. If I was to go back to the first one. The homes immediately to the, two houses to the east there also have applied for variances and the addresses are in your staff report had also applied for variances and those were turned down by the City Council. Those addresses were 2101 Pinehurst, and that was a 3.3% and 2081 Pinehurst and that was a 2.6% hard cover so they're approximately 650 square feet and another 530 square feet, or 40 square feet and both of those were also denied so being consistent with that. I think where the Planning Commission struggled and why we put the additional recommendation in is the Planning Commission was struggling with all or nothing kind of thing. Obviously the builder's reluctant to pull the driveway out now that the homeowner's been in there. It's been in there for a while so they were struggling so we tried to give you a couple different options in looking at that, and I'll go to the recommendation here. So certainly within that, excuse me. I'll show these are the two that had the variances on there. 2101 and the 2081. Actually the one at 2081 actually bought the additional property there to make that lot larger. So we did put in an additional recommendation in there but we're still left struggling. The staff's recommendation was for denial. The staff's 10 Chanhassen City Council - November 23, 2009 recommendation struggling with not having a patio. Whether it's this homeowner or homeowner in the future, that's kind of makes it desirable when you come out of that back patio door. Certainly there's a deck above that but what that does to the livability and the desirability of the property in the long term. So with that we did provide Findings of Fact. If you wanted to do some motion inbetween there and then we would recommend that we come back with Findings of Fact at your next meeting but with that I'd be happy to answer any questions that you have. Mayor Furlong: Thank you. Questions for staff. Councilwoman Tjomhom: I have a couple questions. Mayor Furlong: Councilwoman Tjomhom. Councilwoman Tjomhom: The two variances you spoke about, I think you showed a picture of them earlier. Were they denied after the fact? You know what I'm saying? Kate Aanenson: I'm not sure. I'm sorry. Councilwoman Tjomhom: Okay. But you do you understand my question? Kate Aanenson: Yes. Councilwoman Tjomhom: Okay. And. Kate Aanenson: If your question is were they given relief based on that, I don't believe so. They were denied so they would have had to remove it. If there was anything there. Councilwoman Tjomhom: That's what I was asking. If this happened before or after there was something already existing there. Kate Aanenson: That I can't comment on but. Councilwoman Tjomhom: And if that happened before it was built or purchased the way it's happening now. Second question I have is when we do put a driveway in there's a permit pulled and the plans are submitted and the driveway's completed. Do we send an inspector out to inspect the driveway? Kate Aanenson: No. We look at the survey when it's put in place and it's the obligation of the contractor to follow the survey and we've worked, long education curve over the years to stop this problem that's occurred and we've actually gone back and done as-builts for this particular reason where we've had changes in grading and drainage where it may cause problems too so it's the builder's responsibility to submit those surveys. Often times you have weather conditions that make it impossible to get the survey in a timely manner, or the'driveway in in a timely manner also so sometimes those things play into consideration too so the survey does lag behind someone trying to moving in and getting the as-built done or finishing grading. They may want to move in before some of that. Things that are not life safety issues are done. But it's our intent 11 Chanhassen City Council- November 23,2009 that when they submit the survey that that's what they're going to follow and ifthere's a problem or if they want to change it up, they would come meet with somebody. Make modifications, which does happen. Someone may want to change something. Councilwoman Tjomhom: Yeah, I'm surprised about that because even when you put a new deck on, you know they'll come out and inspect the footings and do everything else as a process. Kate Aanenson: Yeah but a driveway is kind of like a patio. As long as that is put in place and follows those sort of things. We try to catch it with the as-built. Not every you know would be similar to a patio if it's not shown on the plan and someone calls on something like that but we don't stand out there and follow up on all of those. Those would be complaint driven. Mayor Furlong: Other questions for staff at this time? At the Planning Commission there were comments made. How did this occur? Kate Aanenson: Well again the staff's, reviews the, I'll go back to the one that shows the survey here. Sorry. So the survey would be submitted with the application. Now lots of times when these come through there's a conversation that's being held with the builder because it doesn't meet the requirements so it's a negotiation of how do we make it work. Mayor Furlong: At the time that they request the permit? Kate Aanenson: At the time the permit's being issued. Mayor Furlong: Okay. Kate Aanenson: While the building inspectors are reviewing the plans, the engineering and the planning department's reviewing, looking at making sure that it follows the grading plan which is very important. Engineering reviews that part of it and then the planning department's looking at the hard cover portion of it, so those are the other two departments that are all working together to get the permit issued. If it's not, if it meets all the hard surface coverage and we still make sure that, if it's supposed to be a look out or walk out that it follows the grading plan so engineering department would follow that process to make sure. So often times it's a simple phone call to talk about. It looks like there's some additional, you know they sometimes show a future pool or something like that, or a tennis court or a sport court. We would inform them that you're getting close to the maximum. Let's talk about some ways that we can meet your goals. We try to be you know advocating for them to make sure that they can meet their needs. They can provide that and when this house did come in it did provide for that 10 foot back patio, which is a requirement because there is doors going out. But that was, so the permit did meet the ordinance. And somewhere in the process the contractor it appears, and it was stated in the Planning Commission, the contractor decided that that didn't seem to make a lot of sense. The way the driveway was laid in place, nor the sidewalks so they chose to deviate from the plan. So that's how it happened. And it wasn't caught until the survey, done at a later time requirement, the as-built was submitted back to the city. And then the planning department did notify the builder that they didn't follow the plan and they were in violation. Now the homeowner's burdened with the problem of non-compliance. 12 Chanhassen City Council- November 23,2009 Mayor Furlong: Sure. Yeah. Was there anything at the Planning Commission, and that was, well it turned coming through as a recommendation because of the vote. Anything expressed in terms of the hardship that's created? Kate Aanenson: Well I think, I think that you know the vote was 4 to 2. I think there was some concern that again the homeowner got, it's not a good welcome to the city which we don't want to have happen. We want everybody to you know have those choices that they can make later with their property. That they've got some of that additional hard cover so I think there was the two votes that were, didn't support the denial had some concerns regarding that. But I think the rest of it felt like, it was a little bit of where we spent a lot of time with the builder has done work in this city. A little bit of disregard for the following the requirement. Mayor Furlong: Okay. Thank you. Any other questions at this time for staff? Councilwoman Tjornhom. Councilwoman Tjornhom: I have another one. This neighborhood seems to have a lot of these problems and I guess I'm confused. I mean we've set ordinances and building codes in place before this was, before this development was even built and I'm wondering why we're having so many problems with this particular. Kate Aanenson: We'd love to talk about that for a minute. When this project came in, and we noticed, the lots came in at the minimum and we were concerned because they were larger homes. Now we're at the top end of the building cycle when there was a big desire to move to this area and actually the builder came back to us and said we'd like to put a 4 car garage on there. It was like, there's no way we can get a 4 car garage in there because they realize the houses at that time are moving up towards the top end. The different builders in there and at that time they did drop some of the lots to make them work so actually some of these lots, there were 2 lots that were dropped on the bottom part to actually make some of these lots bigger. Our normal lot size is 15. If you look in the staff report, we put the average in there which I believe was closer to 18 or 20,000 so we're bigger than most of the lots so these are large homes, and people do want to have those additional amenities. Whether it's the third car garage and the patio out the back. The fire pit in the future. Some of them want the sport court. Some of those things which we want to build in that flexibility but we do have a large footprint on these. On some of the lots are small. That's why I think you're seeing some of the lots up there, people have combined, actually bought two lots to make it work. To meet their needs. Mayor Furlong: Okay. Any other questions at this time? Okay, is the applicant here this evening? Good evening. Carol Toohey: Good evening Mayor, council members. Mayor Furlong: Good evening. Carol Toohey: My name is Carol Toohey with Lennar Corporation, also known as US Home. We're here on behalf of the homeowner in regards to the hardship difference on the home site. 13 Chanhassen City Council- November 23,2009 There is, was obviously you can see the discrepancy between the building permit driveway and the as-built survey. Ms. Aanenson did a good job of describing basically what happened and the contractor decided to install a driveway they felt was more appropriate given the type of driveway, or the garages and the use of those garages and unfortunately our builder didn't, wasn't there the day that they installed it and now obviously we didn't catch it until the as-built survey was completed and unfortunately that was also after Mr. Gleason had purchased his home. So we're here on behalf of the homeowner to try and help him to allow him to have the new driveway that he did purchase from us. We have modified the original application which did include both a larger driveway and a patio to just the driveway as it is today. We do understand that is an increase above the maximum surface but the, we believe the difference between this hard surface and for example the patio hard surface is where the water goes. This additional surface does flow to the street and into the storm sewer in the street whereas the back yard would flow into the grass and the ponds and there were some issues there so we believe there is also a difference in that kind of request so we're here to respectfully request that the council consider the new Findings of Fact that the staff is presenting where they do accept the driveway as it is today. Mayor Furlong: Okay. Alright. Any questions? Carol Toohey: Any questions? Councilman McDonald: Yeah I've got a question. Mayor Furlong: Councilman McDonald. Councilman McDonald: I understand a lot of this was probably a mistake or something along those lines. Why haven't you offered to fix the driveway back to the way it should be as built? Carol Toohey: Because the homeowner did buy this home as it with the driveway in and had an understanding that this is what he was purchasing through no fault of his own. He didn't know that we had a mistake, made a mistake and at that time we had not known so we're doing all that we can for the homeowner to try and let him keep what he purchased. Councilman McDonald: Okay. When I was on the Planning Commission there were at least 2 or 3 homes in this development that came through because again as Kate had stated, you wanted to maximize the size of the house that went onto the lot and based upon that no one could put in retaining walls. They could not put in any landscaping. We went through a lot of iterations with people coming through trying to convince us that we could dig holes in the ground and do basically little sump pumps or water gardens or something along those lines. And at the same time 3 years ago when there was a flood a lot of water ran off from this area down below here. Flooded out homes. We had those homeowners coming in up in arms because basements had been flooded out. Property had been flooded. To me the solution is you fix the driveway. He may have bought what is there but that is not what was approved. The solution is fix the driveway. Either the homeowner can do it or you can do it. I'm not going to vote for a variance because again too many people have come through here. This has been an ongoing problem and 14 Chanhassen City Council - November 23, 2009 I'm just not going to tolerate it. You're not going to get my vote to allow for this variance. You're going to have to fix this problem. Mayor Furlong: Any other questions or comments for Mrs. Toohey? Todd Gleason: Can I make a, or I'm not sure what the process is. Mayor Furlong: Certainly. Nope, that's fine. Please, Mr. Gleason. Good evening. Todd Gleason: Thank you. Good evening. I'm not probably prepared with comments other than I did submit some written statements and I appreciate if you had a chance to take a look at that. I travel a lot for my job and wasn't sure I was going to be here this evening. That said, I do you know sort of ask you know for a couple comments. One is, I know our neighbors of course. You know you know the people in your neighborhood and when you're faced with an issue you share certain frustrations with your other fellow neighbors and often times they share their experiences and so this has been one, as you can imagine, for people like myself, this is a new neighborhood. You know this is one of the topics. You know I guess I would, you're asking for an answer. I don't know if I can say the exact answer regarding the two neighbors that applied for a variance but my understanding, because one is our next door neighbor. They applied because they wanted a larger patio to be put in. It had nothing to do with their driveway and I believe the other one on the corner, they were looking to put in something in their back yard as well. That why they purchased the lot next to them, so they now have a larger lot for them to do what they want to do in their back yard. Again my understanding is, it had nothing to do with their driveway. You know as my letter I think outlined, if you had a chance to read it, I would just sort of share my frustration with the entire process here. I'm not going to argue the facts or the technical aspect or the, you know the erosion ratios. That's really not what I do. I know that we moved here from New Jersey. We found this house. We were attracted to the community and frankly you know since that time we've struggled with a lot of processes associated with the purchase of this home and some of the things that my family and I are dealing with, now including this driveway which was there when we bought the house and we did actually call the city regarding hardscape to understand what limit we were up against. While I'm sensitive to you know Councilman McDonald's frustration with the you know the history of this. I guess I would just remind the council that, my family and I didn't create the history. When we called the city, specifically for hardscape. Specifically for other reasons. When we weren't given a permit to move in until we got windows fixed. You know to find out 8, 7 months later that there was this issue, I struggle with understanding how now we're the ones that are going to have to fix something that hopefully I believe is a minor variance but that's my comment because you've read my written statements. I don't want to go over that again. If you've had a chance to read that, I appreciate it. Mayor Furlong: No, I appreciate that and thank you for providing those comments and realizing that it's pretty clear from what you said, what we've heard tonight and what was said at the Planning Commission, this wasn't something you created. But unfortunately you're dealing with it and the process is sometimes one that isn't designed for efficiency but for clarity and making sure that everybody gets heard in a timely manner so I appreciate you putting up with the process 15 Chanhassen City Council - November 23, 2009 as it's been. Any other questions for the applicant or for Mr. Toohey? Councilwoman Ernst, did you want to ask a question? Councilwoman Ernst: Yeah, I have a question for Kate. Can you tell me, after reading the staff report, the patio seemed to be the bigger issue for water runoff, is that correct? And is there really a concern with this driveway? Kate Aanenson: I don't think either issue was more important. We just brought up the patio because we think it's, it makes the house, it's like not having a front sidewalk. Sometimes it's just one of those things that will make a house more livable. The Planning Commission didn't talk on that nor we. I think they're both hard cover and just the viability and livability. Councilwoman Ernst: But I mean is there a bigger, was there, is there an issue with the driveway being in there for a while? Kate Aanenson: Well it's just hard cover. Councilwoman Ernst: Zero point percent. Kate Aanenson: Yeah. Mayor Furlong: Alright, maybe that's a question Councilwoman Ernst for our city engineer. Councilwoman Ernst: Okay, sorry. Mayor Furlong: Mr. Oehme, does it matter if the water runs off in the front of the house or the back of the house or, in terms of storm water management? Paul Oehme: Well, not really. I mean it either goes through their yard into the wetland and through those ponds out in back or it ends up in the street and eventually ends up in the pond so there may be some, maybe some water quality benefit if it goes through surface drainage to the back yard and into the wetland but it still should be treated and consistent with other properties in the area. Councilwoman Ernst: Is there anything that they can do to help that situation with the current situation that they're in right now? Paul Oehme: I mean it all comes back to hard surface coverage. We've talked to the council about you know storm water improvements that could potentially help the situation. We're not you know there yet I guess in terms of who's, what type of improvements potentially could be added to address these type of conditions but. Councilwoman Ernst: Well I know in the past we've talked about additional landscaping and that sort of thing that might help the situation. I'm wondering if there's anything that they could do that is similar to that that would. 16 Chanhassen City Council- November 23,2009 Kate Aanenson: I would just point out, we did spend a lot of time talking at one of the other applications up here. They brought in a long, kind of expansive drawings of what different alternatives they could use and at that time we chose not to accept that as a path because we didn't have you know a policy or plan in place to make that happen. The one that actually bought the other lot. They were looking at some, kind of some creative alternatives to reduce their hard cover. Councilwoman Ernst: Yeah and I don't, I'm not getting the feeling that we're looking at comparable situations here when we're talking about, for example 2101 and 2801. We don't know if they had a driveway. If they were dealing with an existing condition or if it was after the fact. And then. Kate Aanenson: I think Mr. Gleason stated the facts pretty much, pretty clearly that they both want to do additional coverage to their property. I think we're all in agreement that Mr. Gleason didn't cause the problem but the contractor didn't follow the plan. Yeah. So it's just the additional hard cover. We're not saying you know we'll leave that up to you to decide the merits of that. Whether or not there was, one's more egregious than the other. Councilwoman Ernst: Well and so because I don't feel that we're dealing with comparable situations. I'm just asking if there's something that he can do with additional landscaping or something to help remedy the situation. Todd Gerhardt: Mayor, council members. We did look at, there's an empty lot to the west and we looked at you know replatting the area and buying additional land, but now we've just pushed the problem kind of downstream again. You're going to have to see a smaller home that's next door that's not the tradition in this neighborhood so, this is a tough one. I mean one of the things that we've talked about when we have situations like this that if we could bank property somewhere in the area and people buying into that situation is the only thing that staff has come up with. With the tight clay soils in Chanhassen, it's very difficult to use some of the products that are out there today. So you know we just haven't gotten to that point of trying to find a piece of land in this watershed district where property owners could come in and buy some open space and that would have to remain open now and into the future is really the point that we're at. Councilwoman Ernst: Yep, and I see that as being a potential long term solution whereas the situation that we're dealing with today is right in front of us and we need to figure out how we can help this homeowner when he was not, he's really not responsible for what happened here. Mayor Furlong: Any other questions for the applicant? Oh I'm sorry, Councilman Litsey. Councilman Litsey: Well, Mr. Gleason in your letter you stated that prior to moving in there, were there actually building inspectors out there on the site to deal with the window issue? It says in here prior to moving in the city inspectors notified, there's an issue with windows apparently. How did that come about or was that, were they actually on site to look at that or was it just? 17 Chanhassen City Council - November 23, 2009 Todd Gleason: Well I believe they were. Councilman Litsey: Okay. Todd Gleason: I certainly didn't, you know I mean my recollection of 2 years ago now it seems like, but was that we did receive a call from Lennar that the inspector had come in. Verified that certain windows didn't pass I believe it was efficiency ratings and that they needed to be replaced. Councilman Litsey: Okay. Todd Gleason: You know and so. Councilman Litsey: Okay. And is your assertion then that the city inspector should have caught the other issue at that time? Todd Gleason: Well I guess my assertion might not be that necessarily. My assertion is that you know 7-8 months after moving into the home, receiving a letter from the city that we were over the hardscape was a surprise, not only based on that fact but also based on the history that we had that it seemed to us that a process had occurred and again I'm not professing to be an expert in the area of permits, inspections and the like, but that certain people had come into our home from the city to approve it's you know, it being a habit you know. I mean us being able to move into the home. It's occupancy. That coupled with the phone call that we had made because we were exploring what we could do in our back yard and finding out that we were already was you know that we're at 24.88 percent of hardscape, which apparently was on the as-built. All of this is my point is, you know we had had a couple of conversations with the city about the hardscape. We then obviously you know, I wouldn't say delayed our move in but we were sensitive to maybe delaying our move in. That somebody had come and inspected our home. The windows needed to be replaced. We were fine with that process because we were renting a home in the area. You know all of that, you know the bottom line equation is that it certainly felt like a lot of people, a few people had looked at our home. Inspected it. We moved in and now we're here. Kate Aanenson: Can I just make one point of clarification. We do not do the as-built. That's up to the builder so that was Lennar's responsibility to check to make sure it was built, the driveway was built correctly. And the rest of the survey, the hard cover, that's their job to do and that includes the elevations for the drainage and that sort of thing so there's a time line, and I think I pointed that out. The permit was issued in 2007. These take a few months to build but the as- built wasn't submitted until our records show 12-1-08 so it was over a year before we got the as- built back so. Councilman Litsey: That was my next question. Because I mean you normally wouldn't pick that up on an inspection anyway because that's not something... Kate Aanenson: Not the driveway stuff, nor would they pick up, yeah. The measure the setbacks from the street and that sort of thing but not the as-builts. That's up to the builder. 18 Chanhassen City Council- November 23,2009 Councilman Litsey: Okay, thank you. Mayor Furlong: I asked Ms. Aanenson hardship and that's one of the factors that comes into play with a variance. The hardship of, you know but for. You dealt with this I'm sure as a builder and looking for variances more than Mr. Gleason has. He's an unfortunate participant I think here which is pretty clear from his statements. Where is, is there a hardship here? Or not allowing, you know if the variance is not allowed. Carol Toohey: Well, in our application Mayor we explained the hardship as this gentleman you know bought the home as you see it today. Had expectations of use. As you can see you know the driveway. Just looking at the two different driveways, there's two completely different potential uses. The width in front of the third stall, or the single stall, the depth of the pavement is only about 16 to 18 feet deep. Typically the third stall is used for recreational vehicles. Extra cars. That is not an appropriate depth to use in that stall in that way. My understanding of why the contractor built the driveway as you see it today so that they could actually properly use that stall for it's use. That homeowner has lived there for 2 years now so has bought what the understanding of the use of the driveway and was using it and so that hardship would be you know taking away the enjoyment of the driveway as you see it today. Mayor Furlong: Is the building permit survey, the one on the left there, is that, that driveway configuration, is that a normal configuration for other homes in this neighborhood or throughout that you build or was it abnormal? Carol Toohey: You know I don't know. My assumption is that is just the standard template that the engineer uses. Doesn't actually look at the garage or the use before they lay it on there. They have a little...plop in their CAD. Mayor Furlong: So it's a pretty typical layout and I guess that's been my experience just not only in this neighborhood but throughout the city is with a third car garage, while it may have a driveway with the width of 3 cars at the house. By the time you get to the access off the street it's down to a 2 car width. Carol Toohey: That is standard but if you do look though, you know depending on the home, and there was an aerial. The car is parked there. You know say someone had a truck or a boat, it would be at an angle and then cutting into the 2 car portion of the driveway, which... Todd Gleason: And maybe if I could make a comment Mr. Mayor. Mayor Furlong: Certainly Mr. Gleason. Todd Gleason: If I legitimately, and maybe that's already... If I really thought that that driveway that is, that was proposed in the permit would be functional for us, given, I wouldn't be here today. I mean I really wouldn't try to be wasting your time over, it's not like I'm dying to have a larger driveway. I mean that's not my goal in life. Frankly I think a gray box on the screen is interesting but you know for me to pull out of my third car stall there, because I give my wife the other, for me to pull out of that and weave around the way to that, I know my 19 Chanhassen City Council- November 23,2009 driveway, would be very difficult for me to believe that it would be anywhere close to the same level of you know use in my current driveway which is, doesn't feel that excessive when I'm on it I would state. Mayor Furlong: Okay. Alright. Very good. Any other questions or comments? Very good, thank you. Appreciate you being here for your comments. Let's bring it to council for discussion and comments. Thoughts. Unless there are any follow up questions for staff at this point. Councilwoman Tjornhom: I have one more question for Kate. Mayor Furlong: Councilwoman Tjornhom. Councilwoman Tjomhom: The two variances that were denied that you discussed earlier in your presentation, what was the percentage or what was the overage of hard surface coverage? Kate Aanenson: The first one at 2101 was requested a 3.3% or about 650 square feet. And the second one was. Councilwoman Ernst: 2.6. Kate Aanenson: The first one was 3.3. Councilwoman Ernst: Yeah. Kate Aanenson: Yeah. About 250 square feet. The second one at 2081 was 2.6. About 540 square feet. Councilwoman Tjornhom: Thank you. Mayor Furlong: And the results of those were? Kate Aanenson: Both, they were both denied. Mayor Furlong: Okay. Any thoughts or discussion? Councilman McDonald: Well I guess the only comments I'd come back to is again is, you know I feel very strongly about my position in this and part of it goes back to again I remember when this whole development came up for platting and staff did point out a few problems as far as lot sizes and types of houses and there was a reduction in lots as I recall you know just to accommodate that. This has been a problem from day one and it was brought up when I was on the Planning Commission. We made it known to the builder then that you know they were creating a ticking time bomb because people wanted to do things with their homes and the builder wanted to go ahead and go forward with the type of homes they wanted to put on there and that was fine. I remember one of the comments I made at the time was that whoever buys the home should be made aware of some of these limitations to these homes. I know that never 20 Chanhassen City Council- November 23,2009 happens and it probably didn't happen in this case either but it's not as though no one knew going in what the rules were and what the problems were. If this were a total surprise to everybody I might feel differently but because from day one knowing what had happened with this, I'm not surprised and it's, I understand from the owner's standpoint. I wouldn't want to be in your position either. There's a few of your neighbors that I know that one came in from California and before they even got moved in they were being told they couldn't do what they wanted to do with the property. But I cannot support a variance in this case. Mayor Furlong: Thank you. Other comments. Councilwoman Ernst. Councilwoman Ernst: Well I believe that the owner didn't know in this situation and as we talked about previously we don't, the other two residents in the same neighborhood, we don't know if that situation was similar to this one or not at this point. We do know that the overage was more than what we're talking about today. Today we're talking about 0.8%, which is not a huge percentage of square feet. Percentage over but you know really with the situation that, and the details that we've talked about here today, I would support Option B on this because I feel that it would be the right way to go. The homeowner's willing to forego the patio and live with that if we give him the driveway and I would be okay with that. Mayor Furlong: Okay. Thank you. Other comments. Councilwoman Tjornhom. Councilwoman Tjornhom: Yeah. When I look at variances I often you know, I guess the key word for me or a flag is a hardship and I think another key word that I've made up for this is probably self inflicted and I just feel that as a homeowner this was not self inflicted. This was obviously a lack of communication between the builder and the contractor, or whoever was putting in the driveway and they made a huge mistake that now the new proud homeowner has to deal with and I'm sorry for that. Welcome to Chanhassen. We used to be called Chanhassle and we've worked very hard to not be called that anymore and so I'm hoping that from now on you'll find it a pleasant place to live. I just, you know I, I feel that this was not an intentional overage of hard surface coverage by the homeowner and Councilman McDonald I totally understand your frustration with this development and how as a council and planning commissioners we work with staff to, to protect our water. We watch where the surface water flows and where it goes and how it's treated and so I understand your frustration and I'm with you on that but because this I don't feel was, this was not something that was intended by the homeowner. It was a miscommunication way before he even probably carne to Minnesota, I'm going to have to support staff's option of allowing the driveway to exist but denying the patio. Mayor Furlong: So you're supporting Option B? Councilwoman Tjornhom: Yes I am. Mayor Furlong: Is that Option B? Kate Aanenson: Yes. Mayor Furlong: So, okay. Thank you. Councilman Litsey, your thoughts. 21 Chanhassen City Council - November 23, 2009 Councilman Litsey: Well I certainly sympathize with Mr. Gleason's situation so what I'm about to say isn't from lack of sympathy for what your situation is but I agree with what Mr. McDonald said in terms of, well let me back up. What I think this is more of is the City's getting pulled into a situation they really shouldn't be in in the first place. It's a builder/owner issue and that's really where it should remain in my opinion. We're being asked now to help out a situation that clearly does not meet our ordinance or code so Ijust think that we have to, we have these in place. We have to be consistent in it's application. A lot of these variances that come in, it is oversights or whatever. I don't know that this could really be classified as an oversight. This was just the builder didn't do what they should have done and I think Mr. Gleason has, you know is an aggrieved party in that, and the builder has to make good on that. That's what the issue really is and that's where I think it should stay. Mayor Furlong: Okay, thank you. Obviously a challenging issue based upon the different thoughts and opinions and one that is, as much as this council continues to try to accommodate and be flexible, this is a challenging one. I reckon back to, I think back to other after the fact variances where the building or property improvements have occurred and it exceeds the hard surface allowance and these are the toughest ones that we do. Especially in this case where the homeowner wasn't the one that created it. We've got other ones with sport courts and other things that have come in and at least there you can say you know they may not have known but you know we make adjustments there. My concern here is, the biggest concern, I think the driveway design that was in the, in the permit survey is very typical design. That many, many, many homeowners have throughout the city and it's designed specifically because it minimizes the overall surface area of the driveway. Could the other design, the existing design be preferable? Perhaps and I think if my, you know the concern is, this was a mistake. It was a mistake according to the Planning Commission minutes that it was done by the contractor who was working for the home builder. How many mistakes are going to occur? I'd like to find a way to accommodate the homeowner and try to find out something that can occur but I have difficulty here doing that from the standpoint that you know, to come in after the fact a mistake was made and Councilman Litsey I think you know, the issues shouldn't even be in front of the council here. It's a, if a mistake was made that was, if another mistake was made that didn't, wasn't because of a restriction that the city had put in place long before the permit was ever requested back at the time that the, you know these ordinances have been in place for years and years and at the time of platting, you know we wouldn't be here and I think this was an issue. I struggle even with item B, though I'd like to find and we have found in the past some accommodation, someway to try to come up with something that helps and find some flexibility from, with the staff and I don't know if anything exists there. I'd like to think it would. We've got, I guess Option B is a partial but you know my concern there is the next homeowner's going to come in and want a patio, you know and whether they knew or not. Or there are a number of homes yet to be built in this neighborhood and the fact that we've already seen on, with 4 neighboring lots, 3 requests for variances on the exact same issue, this is a problem that's been identified and with more open lots there, now how do we respond to the other, to the other 2 neighbors that said, you know we said stay within the 25. What if we had given them .8 or 1 percent more than that as well? I mean that was an issue we were dealing with at the time. So I'm really struggling with trying to find the justification to go forward. The desire here is different functionality, and I appreciate that. I mean I've got a driveway that's like the, you 22 Chanhassen City Council- November 23,2009 know with the two and the third stall and I appreciate what you're speaking to but I have trouble saying that functionality or use is now a hardship. So I would certainly, if there's some other options that might be available I'd certainly be willing to table this to let staff work with the applicant to try to find a way to come within the 25. To try to find a way to avoid a variance here because I think that's the issue is, it has more effects than just on Mr. Gleason. I feel for Mr. Gleason. I mean he's been caught in the middle here but I think that there needs to be a way to try to find, try to find something else if we can so I prefer to try to table this this evening. See if the applicant can work with the staff and come up with some alternatives that might work. I don't know if they're out there and if they're not they're not but we're going to have issues going forward in this neighborhood and I'd like to find a way not to start providing variances because of mistakes. You know, so that's my thought and I'd be open to other ideas from the council. Or further thoughts and comments if there'd be, if other members of council would be willing to let staff take a little bit of time and see if they can come up with an alternative to find a way to fit it within the ordinance. And maybe that's not the case and if that's not the case we may get it back with the same proposal but that would be my proposal at this point in time. Councilwoman Tjornhom. Councilwoman Tjornhom: And I'm willing to give staff more time to work with it but Mayor I think you bring up a good point that this seems to be a pattern that's developing. A serious pattern that's developing and staff and councilor someone needs to come up with a solution to where we're not meeting our every new neighbor in this neighborhood on these terms and I'm not sure how that is done but you know the good news is we're probably catching it now before we get 10 homes in this neighborhood and they all have problems. But I think that something needs to be done to ensure that this doesn't happen to another homeowner. Mayor Furlong: Councilwoman Tjornhom I appreciate those comments because that's exactly the case. This is the third one now out of 4 homes on this street, but there are other homes in this area too and you know the rules I think were pretty clear at the beginning. When the plat was designed and the size of the lots that were created and the size of the homes that they were planning to put on there and we're seeing, you know Councilman McDonald talked to that. That's why I think this is just another one and I hate to extend the process. I can appreciate Mr. Gleason's frustration but that's what I would prefer at this point is that we, let's see what we can do from a creativity standpoint. See if there's someway to get them into compliance at the 25%. Councilwoman Tjornhom: And Kate, I don't mean to go, become a planning commissioner again or go back to the plat but when these were platted, were patios in the back included? Kate Aanenson: Yeah, we do require a 10 by 10. Councilwoman Tjornhom: Yeah. That's what I thought. Kate Aanenson: This did meet that. We've also required in all these types of projects, now that they show typical home plans that are going in. Different projects have different styles of homes so on all projects now we ask that the, kind of the illustrative plans that these are the types of homes that we'd be building on these lots. Now again, these were kind of the last of the ones 23 Chanhassen City Council- November 23,2009 that we've done with the larger footprints home styles up there in a highly desirable, beautiful area. Again we don't want to make this our meet and greet either with our residents either so. Mayor Furlong: No. And I think that's why part of the meeting, part of the look for flexibility would be to work with, work with the other builders in that area and try to find ways to avoid meeting all of our new residents in this way. Okay, so I would certainly entertain a motion to table if somebody would like to make it, or I could make it myself. Councilman McDonald: I'll make the motion to table it. I can support that. All I want to do is see the problem solved and again like I say I'm tired of seeing this particular development come up before us and causing problems and so I'd like to see a solution. So I will make a motion to table it. Mayor Furlong: Thank you. Is there a second? Councilman Litsey: Second. Mayor Furlong: Made and seconded. Any other discussion on that? Roger Knutson: Mayor? Mayor Furlong: Yes. Roger Knutson: We'll need an extension. We're out of time before your next meeting. Mayor Furlong: Okay. Kate Aanenson: So you'd have to get something from the applicant. Roger Knutson: In writing granting us an extension until the end of December. Mayor Furlong: Okay. Is that something that the applicant would be interested in doing at this point? Are you officially the applicant or is Mr. Gleason or who's the applicant here? Carol Toohey: We filled out the application on behalf of the homeowner. Roger Knutson: Maybe both could sign them on behalf of. Mayor Furlong: Alright. Can you write up something quick while we play the Jeopardy jingle. Kate Aanenson: Let's see if they want to grant it first. Mayor Furlong: I'm sorry, did you have another comment? Carol Toohey: I have a question Mayor, council members. 24 Chanhassen City Council- November 23,2009 Mayor Furlong: Certainly. Carol Toohey: Just a clarification. What do you mean alternatives to meet the 25%? Are you talking about what Councilmember Ernst was doing like you know maybe some alternative landscape that helps stormwater so they can keep the driveway or alternative materials or, just some clarification on what you're looking for. Mayor Furlong: I mean currently within our ordinance I don't think those options are available. Kate Aanenson: That's correct. Mayor Furlong: Correct, so we need to find something that meets within the ordinance would be my thought. Carol Toohey: Okay. So you're talking more like materials. Kate Aanenson: Hard cover. Councilman Litsey: Hard cover. Councilwoman Tjornhom: I think staff would probably answer that. Mayor Furlong: I'm sorry? Yeah, work with, I think working with staff to try to find a way to find, to get into compliance. Councilwoman Ernst: Well I guess I'd like to get a better idea of what that is. Does that mean that potentially he might have to remove some of that hard surface? Kate Aanenson: Potentially... Mayor Furlong: Well, I'm looking to alternatives but I want to you know, for reasons I stated earlier, without going back and repeating what I said, I think that I'd like to take some time for you and especially as the builder as Lennar, not only here but with the other ones. Work with staff and let's figure out how we can avoid these situations for the benefit of Mr. Gleason and all his to be neighbors as well. And keeping it consistent with our ordinance and what the expectations are. Carol Toohey: Well we are interested in looking at working with the City so that he can keep the use of his driveway but also being in compliance with the ordinance. Mayor Furlong: That'd be great. That's be great. While we play the Jeopardy song here for a little bit longer, Mr. Knutson is working on. Roger Knutson: One more word. It's hard enough to read Mayor when I write slow. 25 Chanhassen City Council- November 23,2009 Mayor Furlong: Make sure, Mr. Knutson, if you could make sure, we only have one meeting in December so, which is the 14th, so if we could extend this to perhaps January, or whatever time would be sufficient. Otherwise we're effectively just doing a 3 week. Maybe we can come back at our December meeting, that'd be great to try to finish it out. Kate Aanenson: That's what we were just talking about. Mayor Furlong: But I want to make sure there's sufficient time that we don't have to get to another extension. Kate Aanenson: Correct, because we only have one meeting in December. We were just talking about that so we may have to ask for another extension. Todd Gerhardt: January 20th works. Kate Aanenson: When? Todd Gerhardt: January 20th. Kate Aanenson: That's better. Signed. Mayor Furlong: Okay, thank you. A motion's been made to table and it's been seconded. Councilman McDonald moved, Councilman Litsey seconded that the City Council approve a motion to table the after the fact hard surface coverage variance request for 2111 Pinehurst Drive (Lot 22, Block 1, Pinehurst 2nd Addition). All voted in favor and the motion carried unanimously with a vote of 5 to O. CITY CODE AMENDMENTS: APPROVE AMENDMENTS TO CHAPTER 20. ZONING CONCERNING COMMUNITY COMMERCIAL AND REGIONALILIFESTYLE COMMERCIAL ZONING DISTRICTS. Kate Aanenson: Thank you Mayor, members of the City Council. We've discussed with the completion of the City's comprehensive plan, the implementation of two new commercial zoning districts. What we have for you tonight, after the review by the Planning Commission, numerous meetings and work sessions with the City Council, the draft of that, of those two ordinances. One being the community commercial and the other being the lifestyle or the regional commercial zoning district. The Planning Commission held their public hearing on November 3rd to review these and they did recommend 6 to 0 to approve. What I'll do is circle back to their comments as kind of we walk through the two zoning districts themselves. Specifically the comments that were received were on the regional commercial zoning district so. The community commercial zoning district is, in the staff report we went through, we gave you a lot of background information regarding the retail study that McComb's did recommending that we do need some additional property in the downtown. That was the impetus for both commercial zoning districts, that based on the market analysis the city could support additional acreage in the core of downtown as we were running out and again this would extend and compliment that 26