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1996 05 20CHANHASSEN ZONING BOARD OF ADJUSTMENTS AND APPEALS REGULAR MEETING MAY 20, 1996 Chairman Johnson called the meeting to order at 6:30 p.m. MEMBERS PRESENT: Willard Johnson, Mark Senn and Don Chmiel STAFF PRESENT: John Rask, Planner I SIDE YARD AND LAKE SHORE SETBACK VARIANCES AND VARIANCE TO THE 25% MAXIMUM IMPERVIOUS SURFACE RE0~UIREMENT FOR THE CONSTRUCTION OF A SINGLE FAMILY RESIDENCE ON PROPERTY ZONED RSF, RESIDENTIAL SINGLE FAMILY AND LOCATED AT 3705 SOUTH CEDAR DRIVE, JAMES JASIN. John Rask presented the staff report on this item. Johnson: Mr. Jasin... Paul Forborg: I'm Paul Forborg. I'm Jim Jasin's son-in-law. He was unable to make it. He's out of town on business. I can try and help answer any questions. His wife is also here, if you have questions. Johnson: Don, do you want to start with any comments? Chmiel: Well I guess I'm in agreement with John. In showing the grading plan, and it's workable I think too with the retaining walls, it gets to be something in accordance with an 8 foot drop within that particular area. With the proposed design, as you've indicated, with the house, have you looked at anything other than that to try and accommodate the setback requirements for that piece of property rather than having two 5 foot variances on each side? Paul Forborg: That I don't know. I'm assuming they worked with someone on the design. Mrs. Jasin: We worked with a...who designed it for us and I guess he didn't realize that you know, that there was going to be any question on that part of it. This is what we felt we needed as far as space goes. Chmiel: Okay. That setback from the lake is another portion too. You said that was 41 feet, right? Rask: Correct. Chmiel' Okay. The existing lot that you have now, is that 40 x 1307 Board of Adjustments and Appeals - May 20, 1996 Rask: Yeah, roughly. 40 wide and approximately 130 feet. 133. Chmiel: Okay. You know I think I agree with what you said to table it to basically get that grading plan. Make sure that that's going to be workable. It would be one of my real concerns. Other than that I guess I don't have any other comments right now. Johnson: I was going to ask, is there anybody in the audience wishes to speak? State your name. Dave Hempel: I'm Dave Hempel. I live at 3707 directly, my house is shown as land adjoining the Jasin property. I have several major objections to the plan. These homes were built a long time ago. My house is fairly close to the lot too but I know that has nothing to do with the variances fight now but all these houses were built over towards the east side of their property in order to give a little bit of a yard around them. I'm concerned mainly with the hard cov~r on the piece of property. The drainage. I don't know if, I've got practically, almost a scale drawing of my ~house in here and I'm going to be taking tons and tons of water runoff fight into my foundation. Practically. Plus the fact that...east side of my home, I'm going to be looking up at a three story wall approximately 10 feet away, and that's not including the roof up on top of it. I've got a one story... What else? In my opinion, this house is way over built for what the neighborhood has upon that lakefront. Mostly older and some of them, a few of the homes along there, and a few others are about 20-25 years old there but they're all one level, upgrade with walkout basements...It doesn't conform to the houses along that waterfront. Also being so close to mine I would consider it a fire hazard, whether it's the Jasin property or mine. I don't know what the Fire Marshal would have to say about that 10 foot tunnel between the two homes. I don't know. I took a drive, I grew up over in Mound and I kind of looked down at Island Park area...I took a drive out there the other day and I couldn't find anything 10 or 11 feet apart, even though they appear to be pretty well crammed in and I just wonder where the variances are going to stop along here. Along the lakefront. I know myself, and the immediate neighbor on the other side, also tried to buy his property in order to... We're trying to spread out a little bit better than cram more in. I guess that's about all I have to say at this time. If it's going to be tabled, I'm not sure I'll be here... Chmiel: Well I'm not sure it's going to be tabled. That's my suggestion. Dave Hempel: And I'm not sure that the grading plan would change things. The main objections that I have to the proposal. I was thinking maybe something would come in like a 24 foot structure with a high pitched roof with a nice gable, large bedroom up in the roof area, you know how they do on some of the houses around there. And I was thinking... Board of Adjustments and Appeals - May 20, 1996 going down to 8 feet or something like that. That's where I stand on the project. It just comes in, in my view, as too large for the property and for the neighborhood. Thank you. Johnson: Anybody else? Rick Anding: My name is Rick Anding and I live at 3715 South Cedar Drive and I also object to the setbacks on this. 21 years ago my father-in-law built a house and because of the closeness of the lot lines, the way these homes were built, back when we were still a township and there were no controls over it. These places were put right on the lines, maybe a foot to 18 inches off the lot lines. And when my father-in-law built he was required by the city to set that house 10 feet off the line because of the fire hazards involved. That's what he was required to do and the city set the precedence on this 22 years ago. I believe Mr. Johnson was one of the people involved in that particular situation. I know he's been around and on the Planning Commission for a long, long time. Thank you. Chmiel: You're a cornerstone Willard. Johnson: Anybody else from the audience wish to address this? Okay Mark, do you have anything you want to throw in at first. Paul Forborg: Can I just make one comment...? In Rask's staff report he stated that there were no other two story structures and on the basis of this survey, this house is 'shown, a basement elevation, the first floor elevation and a second floor elevation. The elevation shown on here, which I am, again I don't know for sure but I'm assuming ifs the first floor elevation of 956 and this is at 957. But I just wanted to point that out that there are other, based on this, there are other two story structures... Johnson: Mark, do you wish to say something? Senn: I don't know, I went out and looked at this and I guess I have to, in a way say I sympathize with the Jasin's in terms of what they're trying to do because they have something and they're trying to do something with it but I look at the lot and I just, I can't see it. It's, maybe that's a short coming of our ordinances but if we have a 40 foot lot, I'm not even sure we should allow it to .be developed on lakeshore. I understand what you're saying on the drainage and stuff but that really doesn't change my mind that much as far as the drainage goes. I'd be perfectly willing to take a look at it and see if there was something real convincing to think about but the thing I'm having trouble with is just fitting the structure onto the property and' having it make any sense from the standpoint of the neighbors or from the standpoint of the city. So to me I look at it and I know it's not a place we can get involved but to me the thing...two neighbors to buy the property and help solve the existing Board of Adjustments and Appeals - May 20, 1996 situations that are bad enough out there and we're just creating another one. So I don't know. That's... Chmiel: Well I think too, just to add a little more comment to it. We did receive something here indicating that if this one goes through, then someone else wants to have their's accepted as well with the same kinds of setbacks and when I look at that, it gives me opening a can of worms. And that sort of bothers me to that point as well. Senn: I'd really much rather have us say no on this and really look at our ordinance as far as it relates to minimum lot widths, especially on lakeshore. Many communities have that type of an ordinance now. I mean most communities around Lake Minnetonka have had them for years. You know a lot of people go around and buy up 2-3 small lots and then build a new house. Otherwise you'd end up with everybody trying to put very large, expensive homes on very tiny lots. It just doesn't work. I think there's real public safety problems and other things. Johnson: Yeah, I've got a problem with it...get around to it. I can't see this. It's a non- conforming house and I understand what non-conformity is. Technically you can't enlarge a non-conforming house and we're going to go wall to wall. If we had a fire, we'd wipe out that whole, that whole string of homes along there. And I don't feel that I'd want to be responsible for that. We're putting too much house on it. Someplace along the line if these people could have, like you say, could have got together and bought up these lots or make one bigger lot or give it to the gentleman over there, Mr. Hempel. Get him to buy a chunk or whatever. Just use the property up I think would be, I couldn't go along with this because I think we're crowding too much building on one lot. We're just creating a problem...one or two of these variances so I can't go along with it. ! can't even see redesigning it to something smaller because you'll still be cramming something in there already that shouldn't be there... I know Carver Beach is...but to just jam, sandwich that one in there, we're asking for trouble. Senn: You know part of it Willard that I was looking at was if I thought this was the only option I might look at it differently but you know in the market, I think there's plenty of opportunities if it's the Sasin's desire to stay on the lake, you know to acquire something normally through the market rather than trying to force this one through. I think in the long term maybe it'd be better for you because if you really want to go into a situation where everybody's upset about it from the day you get started and don't want you there anyway, which I guess when you look at the way it affects them, you can't blame them. Mrs. Jasin: Can I say something? Senn: Sure. Board of Adjustments and Appeals - May 20, 1996 Mrs. Jasin: The property was for sale and everybody had an opportunity to buy it. I guess I wish that we had realized that we weren't going to be able to build on it because our intention was to be able to build a home on it. Senn: Well if the seller told you that you could build on it, you can go get your money back. I'm sorry, because you can't. I mean it's not an allowable lot building wise. Mrs. iasin: It's not that but it's just that the property was for sale and it was available to, in fact we didn't find out about it until everybody else knew about it and had the opportunity to purchase it. Senn: See and that's really not something we can get in the middle of. So I'm just saying, you're asking us to basically throw all of our rules out the window and you know allow a house to be built on a lot, at least in my mind, and everybody else can speak for themselves, that would be simply building on a lot it doesn't belong on. Mrs. Jasin: You're not allowing anybody to build on lots like that? Senn: All I can tell you as long as I've been sitting on this body, we've never had one that we allowed to build within this close proximity to most property lines, coverage as well as a lakeshore setback variance. No, it's never happened. Now I can't speak for people, bodies before I was here. Willard maybe can. Mrs. Jasin: ...there's never been any? Johnson: There's some close but not that close on Red Cedar Point. Mr. Hempel. Dave Hempel: Well I just had one more comment to make on the whole situation. I felt like I really didn't want to come up here because I've known Jim Sasin for a number of years and I felt like this was maybe going to make an enemy out of him, and it may. I cannot remember if it was just prior to his purchase of the property or just after, and it makes all the difference in the world, but I did let him know that he might be stuck with grandfathering on the existing footprint because it's happened to several other people along that piece of lakeshore. And when you start bidding on property, you bid to a point that you think is fair and when you start getting up close to $3,000.00 a foot for lakeshore, you start thinking about it. And then when somebody comes up with almost that much, I don't like the thought of having to bail somebody out that I feel paid about $15,000.00 or $20,000.00 too much for that land. That's my real gut feeling. It's somebody that overspent and wants the neighbors to... Thank you. Board of Adjustments and Appeals - May 20, 1996 Johnson: It's the old saying, buyer beware. I guess that's the term you use but I think that people should have looked into it. Should have checked with City Hall here before they purchased the property and asked what, somebody in the planning department, what can I do? What can't I do? Senn: You know Don, unless you feel otherwise, I don't see any reason to really extend it on. Chmieh No, the only other reason that I had looked at was the fact that...would reconsider a different kind of home that would be compatible with that lot and have the property setbacks. And that I don't know whether or not that was there. And that was one of my reasons for. Senn: Yeah, if you want to look at that possibility, I'd be happy to go along with tabling that. If you think that does any good but I just don't want to think that we're tabling on the basis that what you've got has a chance. I don't see it having a chance. Johnson: What's your desire? Do you want it tabled? Rask: Just a clarification. Would the Board want to see the 10 foot setbacks maintained? Johnson: Yes. Senn: I mean if you've got to give a foot or two or something like that, that's something we've considered before. Johnson: It's the 10 foot, we don't want no fire problems. Chmiel: Potentially that could be another given problem too. So I don't know if you want to reconsider the design of what you have. What it could be other than what you proposed because as that would go right now, that just as indicated, would not fly. Mrs. Jasin: I can't make that decision right now. Chmiel: Right, and that's the reason why I suggested that at the time of having it tabled and looking at that option. Whether it's viable or not, I don't know because I don't know what your basic needs are as far as a home's concerned. Would you like to explore that aspect of it to see if you could fit within the variance portion? Mrs. Jasin: Yeah. I need to talk to... Board of Adjustments and Appeals - May 20, 1996 Chmiel: Okay, then I would make that motion. Johnson: You'll second it? Senn: Yeah, I'll second it. Chmiel moved, Senn seconded to table the side yard and lakeshore setback variances and variance to the 2S% maximum impervious surface requirement for the construction of a single family residence on property zoned RSF, Residential Single Family and located at 370~ South Cedar Drive, James Jasin. All voted in favor and the motion carried. Johnson: It's tabled until John can set up a future date. Rask: Okay. A VARIANCE TO SECTION 20-1021 OF THE CITY CODE REOUIRING FENCES AROUND SWIMMING POOLS FOR PROPERTY LOCATED AT 1301 HESSE FARM ROAD, KEII~ CARI-qON. Rask:' Now, I don't know if I see Mr. Carlson here. I haven't seen him showing up. No, I don't see him. Do you want to open it up and discuss it? Chmiel: Yes, why don't you. Senn: We have a few minutes. Johnson: Variance to Section 20-1021 of City Code requiring fences around swimming pools for property located at 1301 Hesse Farm Road, Keith Carlson. Is there anybody here that wishes to address that? Any neighbors? Rask: Do you wish to discuss it? Johnson: We can' just talk about it. I've read it. I've visited the property so. Chmiel: Yeah. My position on this would be to deny it from the standpoint that anything that could happen at that particular property would be detrimental to the city, and there's liabilities that the city may have to pick up if in the event someone were to drown or done something. Without that fence being around it. We would have consented to it and we'd be part of that suit and I just don't see us going in that particular way. Just from that, I would say no. Board of Adjustments and Appeals - May 20, 1996 Johnson: Do you want to table this thing or do you want to vote on it? Senn: Well I'd really rather see us not deal with it as though it's a variance. I'd really rather look at the overall issue and decide where there's, if there's new technology that now exists that warrants a reconsideration of what we have in the ordinances and can be backed up by insurance ratings and liability radius. You know from that standpoint. I think that's a little of the proof in the putting so to speak. I've seen the covers, and I'd have to say that it really looks like interesting technology. Actually safer in my mind than a fence as long as the owner keeps the cover on. You know you have the same issue with a fence because as long as the owner keeps the gate shut you know. And plus you know, I haven't seen a 5 foot fence yet that wasn't climbable by a kid who wanted to climb it. Chmiel: Well that's true. Senn: This technology I look at it and I really think the technology has something to offer and could in fact even be a safer alternative than the fence. But again, I agree with Don. rm not sure that's something we want to lead the charge on and accept the liability for but again if we can, you know if through insurance ratings and that sort of thing it can be proven to us basically that we wouldn't be leading the charge on the liability and that it was acceptable from a rating standpoint, then it seems to me we should change the ordinances and bring it back for consideration. So I don't know if that means tabling it and look at the ordinance or if that means... Chmiel: I guess on the effective aspects of what's existing, and how effective that really is... (There was a tape change at this point in the discussion.) Senn: ...pools for years and stuff and I have to say, even when this technology came out a few years ago, looked at it as far as a pool went but it was a little, in my mind, I wasn't comfortable with it yet because it was brand new technology and it's a lot more sophisticated now than it was 3 years ago when it first came out and it's, I mean it's quite a system. It's quite a safe system. It's also a quite costly system I think compared to fencing. Johnson: Well one of the things, the ordinance I know calls for a fence. I realize that the... might be 199% fool proof but just like closing a garage door on your garage. I mean gee whiz the kids are going to be out there in a few minutes, let's leave it open and the neighbor gets...and some little toddler and the little stinker strays off, and I've seen that happen. In fact I've got a 6 six year old and I watch her and she's real good but... A few days ago, I was telling Don before, I found her on Mill Street. Before I got to Apple Road, there was cars lined up clear back to the Catholic Church and I stopped and I was wondering what in the Board of Adjustments and Appeals - May 20, 1996 world is going on. Well by the time I got up to Apple Road, here's this 18 month old kid out in the street. Had strayed away from somebody. Nobody even knew who the kid was at the time I got there. This lady jumped out of her car and picked the child up and the child didn't scream or nothing so, it wasn't the owner so, I mean there's a case where the child goes out investigating the yard and falls in. I wouldn't want to be the guy, I've had two children die in my neighborhood in a refrigerator. And nobody, I didn't know about the refrigerator. Two people did know and they never said nothing. I wouldn't want to be them. I raised cain about that that time...why the heck didn't you say something. You could have prevented them two young kids from dying. And I just don't...put a cover on and...I'd feel pretty bad so I can't go along with it. So... Senn: Well I don't like the concept of tabling it simply because tabling starts that time line and I think it's going to take longer than the time line to solve, or at least look at the issue legitimately and decide whether there's a necessary change. I don't know, I guess my preference would be to talk the applicant into withdrawing the application with a commitment from our end that we'll take a look at the technology and how it's treated by the insurance industry and all that sort of thing and do it that way and then he may not even need a variance if we change the ordinance. And then like I say, at the end if he still wants to give it a shot, you know give it a shot but I really would hate to start trying to enforce it right now. Chmiel: From a cost aspect is my concern. That maybe somebody else who puts another pool in won't have the amount of dollars to put that aspect of it into it. Rask: Maybe what we could do is, if you would deny it, he could always appeal it to Council if he wants to proceed with it. If not, we can, I can certainly pass on your comments to him. I think we'd probably refer it to the Public Safety Commission for their input and onto the Council for an ordinance revision or Planning Commission, whoever it needs to go tO. Senn: I just hate to deny it because I don't know if we have enough information to deny it I guess is what I'm saying. He may very well have all the proof saying that it's a better deal. A safer deal and then. Johnson: Well I would deny it... Chmiel: Did you check with Roger? Rask: Yes. I did talk to him and basically this has come up in the past but he cites Chapter 466 of the Minnesota Statutes which basically says the city's immune from these type of, Board of Adjustments and Appeals - May 20, 1996 from this type of liability. It says for any liability under State law, for any claim based upon the performance or the failure to exercise to perform a discretionary function or duty, whether or not the discretion is used. And even if you abuse your discretion, you're still protected under State Statute. I mean there are certain instances. Roger explained, if you design a road that's improper for the traffic, you assume some liability there but if you don't enforce an ordinance provision, that's a whole different story. But the city may be named in a suit regardless. Chmiel: Maybe what we should do is to really table this one as well. I don't like tabling. Rask: I'll talk to the applicant about it... Chmiel: Well that'd probably be my suggestion. Senn: Yeah, because he's not here. Chmiel: Sit back with this until we know exactly what he's going to do. Senn: I move to table. Johnson: Second it. Senn moved, Johnson seconded to table the variance to Section 20-1021 of the city code requiring fences around swimming pools for property located at 1301 Hesse Farm Road, Keith Carlson. All voted in favor and the motion carried. APPROVAL OF MINUTES: Johnson: I think what we'll do is with the Minutes, I think we'll leave them go until next time around. Chmiel: Approval of Minutes? Johnson: I was going to table the Minutes until next time. Chmiel: You two can do it. Johnson: That's right we two can do it. It seems there's some wording I wanted to question and that would get Carol here so I think we should table it because it seems to me she did some... Okay, make a motion? 10 Board of Adjustments and Appeals - May 20, 1996 Johnson moved, Senn seconded to table the Minutes of the Board of Adjustments and Appeals until the next meeting. All voted in favor and the motion carried. Senn moved, Johnson seconded to adjourn the meeting. All voted in favor and the motion carried. The meeting was adjourned at 7:05 p.m. Submitted by John Rask Planner I Prepared by Nann Opheim 11