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CC Minutes 09-12-2011Chanhassen City Council – September 12, 2011 BURROUGHS VARIANCE: REQUEST FOR VARIANCE TO BUILD A SPORT COURT; 10036 TRAILS END ROAD, STACEY & PHIL BURROUGHS. APPLICANT: JOSH KOLLER, SOUTHVIEW DESIGN. Kate Aanenson: Thank you Mayor, members of the City Council. As you indicated the subject property is at 10036 Trails End Road. This property is located in the southeast portion of the city and the request is for the hard cover. The applicant’s requesting a 4.3% variance from the hard cover, which is a 25% th maximum. This item was heard at the Planning Commission back in July 19 and the Planning Commission recommended to deny the variance request 6-0. I think there was a little bit of confusion during the Planning Commission hearing on the applicant’s part in the fact that they were trying to convey that their material for the Sport Court did not meet the hard surface requirements. It was staff’s opinion that we made the interpretation that that did not qualify for the hard surface and the applicant didn’t appeal that so really what we’re here tonight to talk about is whether or not the, because he’s appealed it, whether or not you concur with the Planning Commission’s recommendation for the hard surface coverage, which I’ll go through here. So the Settler’s West subdivision, the bluffs are shown in the red on the perimeter of the property. It has a seasonally high water table. There’s tree preservations in the area. Clay soils. The reverse swales in the rear of the yard. If you remember this is kind of on that point of the bluff so it drops off. It’s very steep. Highly erodible so there’s swales along the perimeter there and there’s stormwater piping in their rear yards and stormwater runoff in this area actually is, there’s a tributary to the Minnesota River which is an impaired water. So the site itself, here you can see the table regarding the hard surface coverage so it’s maxed out on the zoning permit right at the 25% as it sits today. So the applicant would like to put the Sport Court in on the rear of the property and that’s where it goes over the hard surface coverage. So then we were looking at it because it’s an application for a variance for the hard surface coverage, does it meet the practical difficulties and that sort of thing so it was our determination, the staff’s determination and the Planning Commission’s concurrence on that, that because the applicant had reasonable use of the property, that they felt that there wasn’t a practical difficulty or hardship involved so that’s what they recommended. So with that the City Council, would recommend that you also deny the hard surface coverage to support the Sport Court so with that I’d be happy to answer any questions. Mayor Furlong: Questions for staff. Councilman McDonald: Yeah I’ve got a question. I just need some clarification. If you go back to that chart before, okay the 25%, is that the current hard surface coverage and then it would go up to 29? Kate Aanenson: Correct. This is at 25% and then this would go, correct. It would take it up, yep. Councilman McDonald: Okay. Okay, thank you. Mayor Furlong: Other questions for staff? Councilman Laufenburger: A couple questions. Mayor Furlong: Councilman Laufenburger. Councilman Laufenburger: The building permit square footage allowed 3922 square feet and the final building was 3964 so first of all why the change there, do you know? Kate Aanenson: I believe that they moved some of the, or added the proposed stones or some stepping stones going down to the. 14 Chanhassen City Council – September 12, 2011 Councilman Laufenburger: Okay. But as far as we’re concerned they still, what they have in place right now still complies with the 25%. Kate Aanenson: That’s correct. Councilman Laufenburger: Okay. Alright, so they’re not asking for a variance to live with what they have right now? Kate Aanenson: No, that’s correct. Councilman Laufenburger: Okay. Alright. What was the basis of the difference of opinion? I understand the Planning Commission said the Sport Court is not a pervious surface, or it is hard cover. Kate Aanenson: It is hard cover, right. Councilman Laufenburger: And the applicant and the designer said it’s not. Kate Aanenson: Right. Councilman Laufenburger: Where’s the difference? Kate Aanenson: Well I guess this is where, the application was for relief from the practical difficulties of the ordinance. It wasn’t to interpret whether or not the surface that they were applying was hard cover because if we’re going to make that interpretation, you’re appealing an administrative decision and then an ordinance and that would be broad interpretation city wide on what would be considered hard cover. I think we’ve had a lot of discussion on where we want to move with that. We didn’t think it was appropriate in this one application to take a look at that and make a broad brush application. So the applicant filled out a form to ask for relief for hard cover for the practical difficulty. Councilman Laufenburger: Okay. So this is not a decision about whether or not it’s impervious or pervious, it’s about practical difficulty? Kate Aanenson: That’s correct. Councilman Laufenburger: Okay. Mayor Furlong: Councilwoman Ernst. Councilwoman Ernst: No, that was my question. Mayor Furlong: Okay. And Ms. Aanenson, the term practical difficulty. This might be one of the first variances, maybe the second that’s come forward since the law has changed, or maybe Mr. Knutson. What is a practical difficulty? What would constitute a practical difficulty? Mr. Knutson. Roger Knutson: Mayor, practical difficulty means the applicant proposes to use the property in a reasonable manner and that it’s consistent with the spirit and intent of your ordinance and it’s consistent with your comprehensive plan. That’s basically it. He proposes to use it in a reasonable manner that won’t be injurious. You have to determine whether his proposal is to use the property in a reasonable manner. I think the Planning Commission and staff has concluded it was not because you have real need for that limitation on impervious coverage because otherwise you’ll have drainage issues and that will cause problems for not only this property but potentially other properties. 15 Chanhassen City Council – September 12, 2011 Mayor Furlong: And did you say that the proposed use is consistent with the spirit of the ordinance and the land use… Roger Knutson: Yes. Mayor Furlong: Okay. And if it is not, then we would determine that there are not practical difficulties. Roger Knutson: Right. That’s one of the sub-categories. In determining whether the practical difficulties, those are all things you look at to determine whether there’s a variance. The most key one, the easiest one to think about is, kind of sums it up is, does the applicant propose to use the property in a reasonable manner. Do you think it’s reasonable? Now you start out by saying your ordinance has a standard in it and so why should he be, the applicant be allowed to deviate from the standard because the standard in your ordinance determines at first blush what is reasonable use. But all property is not the same and there has to be something unique about this property, among other things. What are the unique circumstances about this property that justify this variance? If it’s like all the other properties, there’s nothing unique about it in topography or other ways then they don’t qualify. Kate Aanenson: If I may, and it’s kind of summed up on page 2 of the staff report. So the staff cited that the site is currently, it’s currently being used in a reasonable manner and that it contains a single family home and a 3 car garage and that the request to add the 25% coverage of a construction port did not constitute kind of that practical difficulty. They’ve got a reasonable use of the property and the Planning Commission too discussed whether or not you could put a basketball hoop on the driveway so that’s kind of where the discussion. Roger Knutson: Just to be perfectly clear, the key difference between, if we can be on this subject, the key difference between the old standard. Let me back up. That standard lasted a year so the Krummenacher standard, the Supreme Court, the way the Supreme Court interpreted Krummenacher, the only way you were entitled to a variance is if without the variance you had no reasonable use of your property. The new legislative standard takes that out. It’s just fine that you already have reasonable use of your property. They don’t look at what you already have. They look at what you want and is what you want a reasonable use of the property and then you have the other factors, you know unique circumstances, it’s consistent with the spirit and intent of the ordinance and it’s consistent with the comprehensive plan. Mayor Furlong: Thank you. Councilman. Councilman Laufenburger: In fact the issue of practical difficulty would not be before us if the applicant presented a design for something that did not add hard surface. Kate Aanenson: Well but then I guess the staff’s position on that is that you’re asking us to make an interpretation then when we haven’t got a consistent rule on what would be impervious surface. So now we’re taking it at an ad hoc basis on every application to look at those differently where we have a requirement that says 25%. So if we’re going to move away from that percentage, then I think that needs to be a different discussion on making that interpretation on a case by case basis. Mayor Furlong: Okay and I guess, I’m sorry go ahead. Councilman McDonald: Well let me ask a question because I’m a little confused by all this. I probably shouldn’t be but I am. Okay the old standard was reasonable use of the property which means if I can put 16 Chanhassen City Council – September 12, 2011 a house on there, that’s reasonable use. Anything else is you know just added on. Now you’re saying what would be, is it normal use? Acceptable normal use so? Roger Knutson: No. Councilman McDonald: Okay. Roger Knutson: Reasonable use. Councilman McDonald Reasonable use. Roger Knutson: For example, we wouldn’t have any issue with this if they had a smaller home for example or no driveway or whatever and they wanted to put in a sports court in their back yard, go for it you know. It’s a reasonable thing to do but you have to look in the context here is, under the circumstances of this application is what they’re proposing reasonable. Is this a reasonable use of the property? And in considering that you have to start with the fact that you have an ordinance requirement that sets the standard and so why are, why do they want to deviate, what justification is there for deviating from your standard? Councilman McDonald: Okay. Roger Knutson: Is there something unique? You know often times you get into strangely shaped lots for example or topography issues or things like that, or bad soils that create some need and that wasn’t anticipated in your zoning ordinance and you can’t anticipate everything. Councilman McDonald: Okay, so the 25% hard cover variance is what we’re really kind of bumping up against and that’s what we need to judge against if that’s worth issuing a variance because they wouldn’t have reasonable use of the property? Roger Knutson: What they propose is, you have to determine whether or what they’re proposing is a reasonable use. Councilman McDonald: Okay so, let’s say we agree yeah. A basketball court in a residential property would probably be a reasonable use. Now, to do that though they’ve got to go up against the 25% number and they’re going to exceed that. Now I have to judge it against the hard cover variance, is that reasonable for the hard cover variance? That’s where I’m getting confused because the first part. Roger Knutson: You have to, is the proposal reasonable under the circumstances of this application. For example if, I’ll make something up. I’m pretty good at making things up. You know let’s say this soil was incredibly permeable. This is unique soil that you don’t see many places and when the water drops on this soil it goes, (swoosh) into the ground. That would say well, you know they don’t, the 25% rule really isn’t needed here because they have so much permeability because of their soil types. That would be an example, or the reason they need it is because of an odd shaped lot or the reason they need it is, whatever is unique to it and there’s some setting off, we don’t think it will cause any drainage problems because you can’t, you wouldn’t issue a variance if you knew someone was going to be or someone else’s property was going to be inundated with water as a result so you have to look at that and say what are, what are the real negative consequences of this that it’s going to be injurious to other property, then you wouldn’t want to say yes. Councilman McDonald: Okay. Okay then I’ve got a question for Kate then because I think what I heard you say was that we didn’t look at this upon this as an individual basis. What we’re applying is the 25% 17 Chanhassen City Council – September 12, 2011 hard cover ordinance. We’re not looking to see if the soils would mitigate that or if there’s something else. That’s not part of. Kate Aanenson: Yes it was part of it. Councilman McDonald: It was, okay. Kate Aanenson: What I said is what we didn’t look at was, does the material that they’re using for this specific court, is that material designed to be pervious. We’re not going to make that interpretation at a Planning Commission meeting. That takes a lot of science and some information. While they tried to present it to the Planning Commission, we didn’t have enough data to support that. The application request was for a hard cover variance. So you go back and say, and I’ll go back to what we said in here, we believe the home is a reasonable home for that lot at 25% with a 3 car garage, a patio out the back. It has a reasonable use. But the other mitigating factors that we put into place was that it’s on a sensitive area for development. Has clay soils. Could cause additional runoff. The sensitivity, we’ve talked about the swales in the back so we looked, got the soil types and all that sort of thing so we said adding additional would bump up against that and we believe that those are the reasons in the Findings of Fact that we would say we would not support additional hard cover. Councilman McDonald: Okay. Kate Aanenson: The property has reasonable use of the property. Councilwoman Ernst: So have they actually proposed using permeable surfaces or not? Kate Aanenson: Right, that’s what they say that they have. But I’m saying we’re not qualified at a Planning Commission meeting to make that interpretation. Because once you’ve approved that, then it’s going to go city wide and I think it takes a much greater study on that then just making that interpretation. Councilwoman Ernst: Well this is something that comes up quite frequently and now that we have a different law, maybe it’s something we need to go back and revisit again because it does change what we’ve talked about in the past. Kate Aanenson: I’m not sure that that does. I think there’s two separate. Todd Gerhardt: Only if it’s granted. Kate Aanenson: Yeah. Councilwoman Ernst: It’s what? Todd Gerhardt: Only if you grant it on the basis that it is permeable. Councilwoman Ernst: Right. Kate Aanenson: Right. Councilwoman Ernst: But we talk about reasonable, using it in a reasonable manner today, and I forget what the term was before. Not difficulty but. Todd Gerhardt: Hardship. 18 Chanhassen City Council – September 12, 2011 Councilwoman Ernst: Hardship. So they are two different things. Roger Knutson: As it stands before you tonight they have, the applicant has asked for a variance from the hard surface coverage. So that is what’s before you. That assumes that it’s impermeable because he’s applied from a variance from that. He could have also, or in lieu of could have appealed the decision and the interpretation of the planning staff through the process as well but that was not done. Councilwoman Ernst: Does he have any proof that it’s permeable. Kate Aanenson: Yes. Yeah, he’s submitted lots of documentation but I’m saying we’re not, we’ve not, we weren’t qualified or the application didn’t include that to say we’re going to make that, nor did the Planning Commission want to address that because that wasn’t the application to say there’s a hard surface issue. Otherwise he’d have to make an appeal on the interpretation of what constitutes a pervious material. Then we’re going to have a much deeper discussion on what constitutes that city wide. Councilman McDonald: Right, it gets into a policy issue and. Kate Aanenson: Exactly. Councilman McDonald: Really what should have happened is stand alone. Is this something that we could use to mitigate hard surface and then we would look into it and make that determination. What’s the percentage that we maybe could knock off but tonight we can’t, we don’t have the scientific I guess evidence as part of this. All we can look at is the hard cover because we didn’t look at anything else. Kate Aanenson: Let me back up. They tried to present that at the Planning Commission. The Planning Commission didn’t feel like it met, it was outside of their realm. Didn’t have enough supporting. The report is in your packet. Councilman McDonald: Right. Kate Aanenson: That didn’t. Councilman McDonald: Well that’s fine. You can submit it but I mean we can’t evaluate it because the thing that we would look at is, okay what does this mean? We would turn it back to you and say you know get us some answers here. What’s the percentage? You know if we say 25% and you use this and you go up to 30%, is that the same as 25 or is it the same as 26? You know we would want those kind of answers and it’s not in the packet so. Mayor Furlong: Ms. Aanenson, quick question. With regard to our current ordinances with regard to the 25% limit, standard for impervious surface coverage, does our ordinance provide any relief based upon permeable materials being used? Kate Aanenson: No it does not. Mayor Furlong: Okay. Kate Aanenson: And I just want to point out too for the record, the Water Resources Coordinator was at that meeting and. Mayor Furlong: Was at which meeting? 19 Chanhassen City Council – September 12, 2011 Kate Aanenson: The Planning Commission meeting. Mayor Furlong: Thank you. Kate Aanenson: I’m sorry. Mayor Furlong: That’s fine. Kate Aanenson: And didn’t agree with the science at that time so, the material that was presented in the study so. Mayor Furlong: Alright, thank you. Any other questions for staff at this time? If not, what I’d like to do is invite the applicant to come forward and address the council. Josh Koller: Thank you Mr. Mayor, City Council members. That was probably as good of discussion over permeable surface as I’ve had in the industry over the last 15 years so you guys are ahead of the curve on that. I’ve been working with Angela and Terry quite a bit on this project, back and forth and a couple things that you guys brought up on this versus you know what we’re trying to do. There wasn’t really from the beginning, and Angela’s the one that’s really helped me out who’s been fantastic by the way to work with. There wasn’t a lot of options for us. We initially said we wanted to present this as a permeable application and she said that was kind of the only way of us going about it to present it because they can’t make a decision, the city members make a decision to say this is permeable or this is not considered permeable so we really didn’t have a whole lot of options there. When discussing with, discussing everything with Angela and Terry, I met with them in the office, again had some really good conversations. Terry had said if you know try and present some information to us that it’s going to make this specific site more permeable than versus just doing it you know everywhere or whatever and so we talked about a few things and we submitted some more information. There’s basically two arguments here. We can argue, which of course I would like to til I’m blue in the face, that this is a permeable option. I know that’s not what we’re here to do. We’re here to discuss that we’re trying to get this approved even though we’ve going over the hard cover. Terry’s exact. I mean if you, I don’t know look at the tapes or have the conversation with him that him and I have had, he believes that this is permeable. What he doesn’t believe is that it will help go into the soils better. I mean it’s just a plastic grid that goes on sand so it’ll definitely go through that but you know it was as far as showing that it’s going to go through the soils better. That was the thing that we discussed and like I said, he’s been great to work with. I haven’t, he’s presented a lot of great points and we’ve kind of gone from there. If we’re just going to move towards the argument, which it sounds like I don’t have a choice. We tried to present some, we wanted to go again and just show that this is permeable but the engineering that was needed and the cost that was needed to bring an engineer just to that one site to show this one material for that specific site was very expensive and the homeowners wasn’t going to do that as an individual. I am going to be having meetings with Terry over the winter and I know a couple of other landscape firms because Chanhassen’s very difficult as far as going over the hard cover, and we understand why but you know trying to get permeable pavers and different sorts of things, they don’t see those type of things as permeable, or the City of Chanhassen doesn’t see that. We understand it. But this was the route we were directed to go and told to go based on everything that I presented to you guys right now. With this specific site I guess you know to exceed the hard cover based on putting in the Sport Court, there’s a few things to look at if you’re out on sites. If you see, and it’s really small on that plan. I don’t know if you can zoom in at all but the existing elevations to the proposed elevations, if you go out on this site, it goes down the hill. There’s an easement for, you know for drainage that goes through the property. It’s very soggy. The grade isn’t very good. What we’re trying to do is with the Sport Court adjust grade accordingly. Make it a little flatter. Put some sea walls in. You can see on the other side underneath the 20 Chanhassen City Council – September 12, 2011 deck there’s a little patio space with some permeable pavers and things like that that are even exceeding, that are going to hit the hard cover. We’re right on. The Sport Court’s the only thing that’s going over. Right now this yard’s not very usable for the two children that they have. The driveway’s very steep in the front so putting a basketball court on there doesn’t make any sense for them because the basketballs are going into the street. In the back right now the grade drops putting good so it’s a little soggy. We’re just trying to create a play area for the children. They’ve got 2 kids. Like to play sports along with their parents. That’s why we’re looking at the basketball court in this to exceed the hard cover. Again we’re claiming that it’s not but at the same time this was our options that we had so that’s what we’re trying to do with this. With this project. You know I guess that’s kind of where we’re at with it. Mayor Furlong: Okay. Alright, thank you. Any questions for Mr. Koller? Councilwoman Tjornhom: I have one actually for Kate, and you know you can listen too. Yeah, don’t leave. Has this been a common problem in this development? Kate Aanenson: Well there’s been a few up there that, they’re pretty large houses for, if you look at the square footage, the lot size on there is slightly over 15,000 which is a standard lot and I would say they’re pretty large homes on that so the home maximizes quite a bit. Then you add on some amenities for their Sport Court or some other patio areas they can be up there. Councilwoman Tjornhom: And when I look at this it’s really hard for me to see the driveway being extremely steep or anything else going on. Kate Aanenson: We didn’t think it was that steep but, that’s the staff’s opinion that it wasn’t that steep but. Josh Koller: …he says he doesn’t want his kids running, I mean it’s steep enough that if you’re playing basketball a ball’s going to go in the street quite a bit and he just doesn’t want his kids running out in the street. Kate Aanenson: Yeah. Todd Gerhardt: We’ll have maybe 2 or 3 of these a year. Councilwoman Tjornhom: In this development? Todd Gerhardt: Not just this development. Throughout town. Councilwoman Tjornhom: Throughout town, right. Todd Gerhardt: Yeah. Councilwoman Tjornhom: But sometimes there are those developments where there is just some quirky planning, not quirky planning. Some planning going on where a larger home has been built on the property and so now we do bump into these hard surface coverage issues. Kate Aanenson: I would think in this neighborhood they’re executive homes with 3 car garages and. Councilwoman Tjornhom: Okay. 21 Chanhassen City Council – September 12, 2011 Todd Gerhardt: Yeah and this lot Mayor, council is just barely above our minimum lot size too and with about 15.8 so, lot size plays a factor and how large a home and patio you add to it and driveway. Josh Koller: Yeah, my homeowners bought this house. It was a spec home, or a model house that they bought and you know with the intention of doing things in the back yard. I mean they didn’t even know they had an easement you know which is their, should have looked into that I guess a little bit but you know with the intention of doing a patio and things like that in the back yard and you know now they’re running up against it and you know the, the problem is eventually, personally in my opinion and obviously being in the industry that I’m in, I mean you’re going to get to a point where there isn’t a whole lot of lots I mean in whether it’s Chanhassen or Eagan or Minnetonka or Edina, whatever you move to and you know if you want to live in that specific town, I mean one you have to go and buy a ginormous lot but you don’t have the funds to do it or you buy you know what you can find and then want to do some things. I understand definitely the runoff, that’s an issue in Minnesota and Minnesota’s starting to take a harder stance on it and I get that. I think we need to. On this particular lot with the grading that we would be doing and with the fact that the Sport Court does allow water to penetrate, the problem is the holes, and like Terry mentioned at the last meeting, this whole lot is completely clay. I mean that’s the soils are, they don’t penetrate the soil. The water doesn’t penetrate the soil at all so it’s very difficult to do that. In fact flattening the lot a little bit more like we’re doing is going to actually, in my opinion would help that. I mean if you have a steep lot obviously with the harder soil for water to go down, it’s going to run off faster. If you have it flat and it’s able to sit there a little bit longer, water will generally percolate into the water table. I mean that’s a goal which is actually in a sense what we’re doing. Then like I said Terry, the engineer for the water piece, he did agree that the water will go through the Sport Court material. His concern was once it goes through there and into the sand bed, how’s it going to penetrate the clay and so regardless if it’s grass or if it’s you know this material, how’s it going to penetrate the clay if we don’t, there’s not a lot of options there. I mean it’s not going to unless you do a lot of soil you know amendments but with this like I said, we’re just, my homeowner’s really adamant. He wants to make sure his kids have a place to play and wants to have all the neighborhood kids at his house instead of you know his kids going somewhere else. Mayor Furlong: What is the topography across this lot? Is it really steep or? Kate Aanenson: No. Josh Koller: The elevation. Todd Gerhardt: It slopes down to the trail. Kate Aanenson: Yeah. Todd Gerhardt: The LRT trail’s in the back yard. Mayor Furlong: Okay. I’m just looking at the GIS site at the County and it looks like it’s, and I hate to throw numbers out, that’s why I’m asking. What do you know in terms of the topography from the front to the back of the lot? Kate Aanenson: It does slope. It has a slope to it but it’s not you know, yeah. Josh Koller: They have a swale, if I can answer that. There’s a swale in the middle of the yard where the drainage is supposed to go. Obviously for the neighbor to the left’s supposed to go through and there’s just a. 22 Chanhassen City Council – September 12, 2011 Mayor Furlong: Okay. And there’s a pond to the north. Kate Aanenson: Correct. Mayor Furlong: So it runs through this lot to the north up to the pond. Kate Aanenson: Yep. Josh Koller: Correct. Mayor Furlong: Okay. Kate Aanenson: But everything up there’s on the bluff and it, the greatest slope is on the edge. Mayor Furlong: And then to the west is where it falls off down to the regional trail. Kate Aanenson: Correct. Mayor Furlong: Okay. Councilwoman Ernst: I have a question Mayor. Mayor Furlong: Councilwoman Ernst. Councilwoman Ernst: Did you say that you were using pervious pavers in addition to this pervious grid? Josh Koller: I should have backed up a little bit on that. We’re using a standard paver patio underneath the deck area. The City of Chanhassen obviously a deck they don’t count as permeable so underneath we were doing a small paver area. Actually we cut out some of their existing pavers because they didn’t go to plan and they did exceed the 25% actually once we found out. When I had measured it. But then on the side of it we were doing some, we made the patio a little smaller and then we were doing some large stepping stone pieces in a rock bed with fabric underneath it which was not considered hardscape and that will allow water to penetrate through it and just have a few steppers so that you just basically the same thing as if you put it in grass. If you put some stepping stones in grass, you know you have to count the square footage of the stepping stone itself but not the, you know the pieces inbetween it and so in a sense again this is the same type of thing. We’re just putting a plastic grid on top of sand which you know, again I could argue that point all day. Councilwoman Ernst: But they’re not really what you would called certified pervious pavers? Josh Koller: No. I would have loved to have done that on this project but again Chanhassen doesn’t agree with permeable pavers because their thought, or the thought process, and I went over this with Terry quite a bit, is that over time if you don’t maintain them, they clog up. Again ICPI certification shows that that’s not the case. A lot of towns do approve permeable pavers but Chanhassen does not. Councilwoman Ernst: I like the idea where you’re talking about you and some of the other developers coming in and talking to staff and I think council could learn some things as well from permeable surfaces because we’ve had many discussions about you know we’re running out of land and what are we going to do is property owners want to improve their property you know or even new residents coming into town, how do we manage that so I like that idea. 23 Chanhassen City Council – September 12, 2011 Josh Koller: And like Terry’s been great. I mean he has a lot of, he’s hesitant. I think his concern is you know without him being here is just that if you approve one thing then you know it’s going to, you know everyone’s going to want to do it and I can definitely understand that. Kate Aanenson: Well I think the issue there is we didn’t have the science or the technology to back up that application so we stayed back to what the application was, was for a variance and whether or not there was reasonable you know, I’m not going to use any word. Whether or not there was a reasonable manner of the property and that was the interpretation the Planning Commission felt like there was a porch off the back. A patio off the back and a 3 car garage. Mayor Furlong: I guess what I’m hearing Mr. Koller mention and I think it calls up on my question, currently if they came forward with an application that said these are pervious material our current ordinance doesn’t provide an exception for pervious materials. Kate Aanenson: That’s correct. Mayor Furlong: With regard to the 25% hard surface coverage. Kate Aanenson: That’s correct. Josh Koller: This is what we were told to do. We presented this and they said well, we don’t know enough about it. I was told that this specific material, this new application which was just installed in a town right, you know in Eden Prairie actually, I was told we didn’t know enough about it so we’re going to consider it hard cover. We don’t have a choice and then I was told to present it the way that we did and so that’s kind of what happened there. We presented all the engineered documents that show that it penetrates through the grid material. We eliminated the base, which was going to be a Class V base underneath there and just had it sand and then to the soil so it’s just a grid on sand. We eliminated that to show that you know the engineered drawing showed that it penetrates better than just what the existing soil would do but again that’s, it was a different meeting you know and we don’t have, I couldn’t sit down and Terry said I’d love to just say yeah, if this is it we’ll approve it but we just, I can’t do that so this is the approach we took. Mayor Furlong: But I think there was also information in the staff report that if you have, you have different layers obviously. You have the surface and then you have the sand underneath and such, that were was concern expressed in the staff report that the underneath the surface was the compaction required. Kate Aanenson: That’s correct. Josh Koller: Which is what we eliminated though. That’s what we had said we were doing any of that. We were just going to do the sand. We were going to eliminate all the sub-base so that water could penetrate that. Councilwoman Ernst: And that was the Class V that you were referring to. Josh Koller: That’s the same, we weren’t doing any of the Class V or anything and that’s the same issue with permeable pavers. I mean you have to have, when you’re doing a basketball court application, you’re talking the weight of people running around on it. You know movement of that isn’t going to be such a big deal. Personally I don’t know that if I would put just a grid on sand in my own property. I would be a little concerned that it’s going to be dull you know but it does tend to, you know it does work on an application for like permeable pavers for a driveway for instance, you have a lot of surcharge with 24 Chanhassen City Council – September 12, 2011 cars and everything else so I mean you have to have a base under there and that’s water penetrates the permeable part of the paver but it doesn’t penetrate the basing as much. That’s what we were eliminating on this and trying to get across that this will penetrate faster than sod will but. Todd Gerhardt: How much sand base were you thinking? Josh Koller: We were going to go with 8 inches of sand. All we were going to do is, same thing. We do a lot of French drain systems in people’s yards. We do a lot of grading projects let’s say in Minneapolis where it’s a flat lot so the same application applies. You put in you know your perforated drain tile with a sock wrapped in either rock or sand so that water as it goes through that will slowly be able to penetrate into the existing soil, and then at the end of that you dig like a sump base filled with rock so that when you get that 100 year flood, you know water can fill that sump base up and you know then go over but then the water that fills that base can slowly, you know sit there a little bit and percolate down into the water table. Same thing with a Sport Court. I mean we’re just going to dig a square hole, fill it up with sand. Put a grid on top of it. It will fill up with water as you know we get a heavy rain and slowly penetrate down but it’s not going to increase the, I mean it’s not going to increase the, you know the overall goal is to stop water from you know leaving the site. This isn’t going to increase that. You know we’re not, again we’re not putting in concrete but you know it’s just, it depends on what this argument is. If we’re arguing whether or not this is permeable or if we’re arguing that we’re trying to exceed the 25%. Kate Aanenson: Mayor, if I may. I think herein lies the problem. We’re trying to engineer something where we don’t have the engineering and I think the Planning Commission felt reluctant because really you need the engineering to back it up and there wasn’t enough and as the applicant has stated, that they didn’t want to spend that much money just for the one case. Understood so it’s kind of give a step back. Go back and study it over the winter, if that’s what the direction is, but I think everybody felt uncomfortable saying well this is going to be the case and then what do you do when the next case comes in when we really don’t have, maybe it’s not 100% impervious or there’s some percentage and what that range is and how that would apply in this specific case so we said we didn’t have enough information. The technology, the engineering behind it to make that decision so we had to go by what our ordinance says. This is a non pervious so whether or not you feel like there was a practical or reasonable use of the property is what we went before us. Councilwoman Ernst: Just so I understand if Kate you’re talking about doing more study on this over the winter? Kate Aanenson: No I’m not saying that. I’m saying I think it would have to be done outside of this meeting but you don’t have enough information and that’s what the Planning Commission said too. Engineering in front of us but they didn’t want to spend that money for this specific application. The recommendation from the Water Resources Coordinator said that he didn’t have enough information, enough engineering to make a favorable recommendation that this didn’t court towards and was reluctant to do that in this specific case. Councilwoman Ernst: But we could in fact table this to see if there is enough information out there. Is that something that they’re willing to wait on? Josh Koller: Yeah, I mean yes. I mean the homeowner definitely wants to do this basketball court in their back yard. I mean we presented plenty of information as far as this material will allow water to percolate into the water table. Again the concern was, once it gets to the existing soil is it, how’s it going to go through that existing soil. That’s the concern that they’ve had. I mean the, you should have in your packet all the engineering that we’ve sent in as far as this specific grid material allowing water to percolate through it. That you should have in your packet. It’s, the problem is, in my opinion it’s just a 25 Chanhassen City Council – September 12, 2011 tricky situation. I mean how you go about it, you’re going to have individuals continuously come up and try and present we want to build this but we’re at the hard cover and 25% is very tight compared to a lot of the other cities. Again that’s just the way it is here, which is great. I understand it but to spend thousands and thousands and thousands of dollars for one individual to do that, it’s going to be difficult. How do you go about that? I mean and again common sense on this project shows that we’re, if anything if you really read the plan, we’re stopping the water from just completely flowing off of it because of grade. You know we’re fixing the grade which is going to help it out but it’s, I don’t know. I just don’t know how to go about it. This is again how we were told to do it and how we were told to present our information. Mayor Furlong: Okay. Todd Gerhardt: So Mayor, council members. So when Terry explained the situation, the engineering report was one where we couldn’t interpret the information. Was that? Kate Aanenson: No, there wasn’t enough soils engineering in there. Josh Koller: It was the soils for the specific site. Kate Aanenson: It’s the soils, there wasn’t enough soil information for this site so. Todd Gerhardt: Okay. So it was the, and the homeowner wasn’t willing to do additional soil borings and have an engineering report to give you. Josh Koller: For that site, yeah. Kate Aanenson: Correct. Josh Koller: Yeah I mean, yes. I mean we can, we’ll entertain that a little bit more and again that’s where Terry and I, and I’ve explained to my homeowner that Terry and I have talked about us sitting down and looking at permeable options because he said somehow we have to come up with something for pieces, you know because like you said, we’re running out of lots. We’re running out of size lots, I mean how do we do it but. Todd Gerhardt: So to the, for the mayor and council I think you’re going to have to deny the application based on the application but direct staff to continue to work with the homeowner, the applicant to research this and look at potentially an ordinance modification as an alternative if the soil engineering report comes back that says that it can percolate down with a 100 year rain event. Josh Koller: Can I ask a question? Actually we, Southview Design, the company that I work for, we presented a hard cover issue with the City of Chanhassen on a couple projects a few years back now for retaining walls. I don’t know if anyone was around for that but we applied, we showed that retaining walls, yes they aren’t, you can’t have water penetrate the top of them but sometimes they’re needed to fix the grade you know so to allow water to sit on the lots, you know slow it down so water can percolate. That was eventually approved and overturned so now the City of Chanhassen doesn’t count retaining walls. When I talked to the designer that did that, it was the same type of process that I’m going through now so I guess I’m asking how, you know what more needs to be done? I mean do I need to spend a lot of hours you know, I don’t know. Kate Aanenson: Can I just talk about retaining walls for a second. We felt it was punitive when we required a retaining wall to go in to make a lot as opposed to is a Sport Court necessary for a back yard. 26 Chanhassen City Council – September 12, 2011 Mayor Furlong: Well and it’s my understanding that when, under our current ordinance when staff is calculating impervious surface coverages, that they do not count the area, the area of the retaining wall itself. Kate Aanenson: Right. Mayor Furlong: Is that correct? Kate Aanenson: And specifically because often retaining walls need to go in for those lots so it was punitive. Mayor Furlong: And the effect is one, which she’s describing here, retaining wall effectively terraces the lot and therefore slows the runoff rate from what it was originally. Kate Aanenson: Right. Mayor Furlong: Which is another factor to consider that. Kate Aanenson: Right. Right, right. Josh Koller: And you could take that with every lot. I mean if you just have a standard 25% for every lot but you have a house that sits up high and the lot drops off really fast, the runoff is going to be 3 times as much as if you have a house on a flat lot so the 25% thing is difficult. Mayor Furlong: But what I think I’m hearing here is that, is that that’s a question of whether the ordinance then is reasonable for the community at large. Kate Aanenson: Thank you, yes. Exactly. Mayor Furlong: As opposed to. Kate Aanenson: So you have to take that as an important factor too. Mayor Furlong: Right. And I know, I don’t know if this council has this year but previous councils that I’ve been involved with has discussed this issue at length at various times with regard to how do we, you know whether or not our current ordinance is reasonable and whether or not any relief from the requirements because of permeable materials being incorporated, should be used or not and today with the discussions I’ve been in, we have not made that change now. You know the discussion can always continue but, and Ms. Aanenson is that? Kate Aanenson: Right, and that’s what the Planning Commission said. Yep, exactly. That that discussion needs to be held at a policy level, and I think that’s what Councilman McDonald said too. It can come back and then decide if that’s the new policy. Mayor Furlong: Right. Okay. Councilwoman Ernst: Excuse me, I agree with that but I think we need to do it because we’ve said that several times and we don’t have that discussion and we did have it as a part of our strategic plan. We did talk about it. We didn’t spend a lot of time on it but because this keeps coming up I think we need to really put some focus on it. 27 Chanhassen City Council – September 12, 2011 Mayor Furlong: Well I think we’ve had multiple discussions over the years at work sessions and. Councilwoman Ernst: Well in the 5 years I’ve been in we probably discussed it twice. We’ve had variances come in. Well during my time I can remember that we’ve done it twice so. Councilwoman Tjornhom: And I think it doesn’t ever, I mean we do, we do make a list of our strategic initiatives for the year and whatever gets ranked the highest is what we focus on and so you know if we want to put it on again this year and if this council, the members would decide to rank them high enough so where it would be a priority, then I think that it’s doable to look at. Councilman Laufenburger: Mr. Mayor? Mayor Furlong: Yes. Councilman Laufenburger: I think it’s reasonable to expect that over time surfaces like Sport Court or Volleybase or whatever, technology will be such that people will figure out how to make those so that they are fully certifiable as pervious as grass. I fully expect that that will take place but at the present time the council is asked to make a decision, are we prepared to allow this homeowner to put 4.3% more hard surface coverage on their lot, which would be a variance from the ordinance. The discussion about whether it’s pervious or permeable or not, that’s kind of, that doesn’t matter to us right now. Councilwoman Ernst: Well except it sometimes has to deal with the water runoff. I mean that’s what permeable’s all about. Is minimizing water runoff. Councilman Laufenburger: Well are you saying that we could solve this problem if Southview Design would be willing to re-grade the property and make it fully level? That would reduce the runoff. Mayor Furlong: I mean that would also be. Councilman Laufenburger: That would what? Josh Koller: You have to have some runoff. You don’t want to. Councilman Laufenburger: Well it will come down the driveway. Todd Gerhardt: You know with the tight clay soils, you know it’s a little different than a sand base in your percolation you know because Carver County clay is, it gets hard. You know it’s tough to penetrate, especially if you get a little bit of rain that soaks it up. What is interesting about this application is he’s proposing to dig down 6 to 8 inches and put a sand bed down and then just place this Sport Court on top of it so that sand base would act like a septic drainage field and hold the water in hope that it would percolate down into that wet clay soil. I would be careful, the homeowner, you know how long will it take for that really to percolate down and that’s the question for the engineer. Is how long will it take for that soil to percolate, and you don’t know unless you do soil borings on that site and do a perc test like they do when they put septic systems in. Councilman Laufenburger: You’re essentially building a clay pool, is that correct? Mayor Furlong: A holding pool. Councilman Laufenburger: A holding pool. 28 Chanhassen City Council – September 12, 2011 Josh Koller: Just like their, yeah. Just like their swale does now in their back yard. Yeah, I guess the thing that I would ask on this side, just as you know, would be that we would like to exceed the hard cover based on, because you’re considering this hard cover, we’d like to do it because right now they’ve got a swale in their back yard. It’s kind of a soggy area. They’d like to put something in where it’s dry. Kids can play basketball and not put it on their driveway so the basketball goes into the street all the time. Mayor Furlong: Is that swale and designed as part of the stormwater management across the lots and over to the pond? Todd Gerhardt: Yeah, there’s catch basins in the back. Mayor Furlong: So if that is, if that were leveled out and would that affect the overall storm, is that part of the easement? Josh Koller: It still does, yep. The basketball court would be level. It would have a slight pitch to it to allow water to drain off the back end, and then you’ll see that that goes right to the easement, and then the easement is just getting feathered a little bit better than it is right now. So we’re actually not, if anything we’re fixing the swale a little bit better just so that the water still runs from one neighbor to the next. You can see that on the grading plan. Yep, and so we’re not, we’re not going into the easement at all. We’re stopping at the edge of the Sport Court right at the easement there and then, in the red you’ll see the proposed elevations where water still continues to go down into the pond. Mayor Furlong: Did you say the water would be running off the court and that’s why you’re going to slant it? Josh Koller: Well I’ve got to slant it so the base of it. You still don’t want all the water to sit there and slowly, slowly drain because it is clay soils. I mean so you are going to have water slowly percolate but I do want it to pitch just a little bit at the base so that water can eventually go forward if you have that 100 year flood, that’s correct. Mayor Furlong: Alright. Any other questions for the applicant? Thank you very much. Appreciate it. Josh Koller: Yep. Mayor Furlong: Any follow-up questions for staff? Otherwise discussion. No discussion. Councilman McDonald: Well no questions for staff. Mayor Furlong: Okay. Discussion, comments on the application or the appeal of the, is this right the appeal of the Planning Commission’s. Kate Aanenson: That’s correct. Mayor Furlong: Denial of the application. Councilman McDonald: I mean I guess from what all I’ve heard I’m in favor of looking at this because I’ve been in favor of looking at this for a number of years because even when I was on the Planning Commission this thing comes up but the problem has been that it’s unique to each kind of individual house and stuff. If the homeowner’s willing to you know take some time here and maybe allow us to go in and look at the size of this and figure something out, I’m all for that but to vote on it tonight based 29 Chanhassen City Council – September 12, 2011 upon you know what I’ve heard, I couldn’t support it because I don’t know the science. That’s what I would depend upon, as you said. You need to do a percolation test. You need to look at is 6 inches going to be deep enough because you’re building a retaining pond and what you’re saying is that it’s going, it’s got a storage capacity of so much water. Is 6 inches enough water or is the soil going to say no, you need to go deeper? I don’t have the answers to that and I really don’t know enough to even suggest what it should be but that’s what’s always held us up before was because what good does it do the City to go out and look at this because we don’t have an application to put it on and we can’t just say across the board it’s going to be this or this. I think the best we can is put together a procedure and a policy to come up with an answer and say yeah, we’ll allow this much of a hard surface variance on this particular piece of property because these procedures were followed and we now know that we could do it. We don’t have those answers and you know that’s what’s always been missing on this and I guess yeah, if the homeowner’s willing to you know do some of this stuff and as you said the soil drillings and those things so we can begin to look at what the percolation is on this site, I’d be willing to reconsider it at some point but tonight all I can go on is we have 25% hard cover variance and to me this is hard cover and based upon that I couldn’t support the variance so. I mean I’m willing to work with you but it’s going to take some time and it’s just I don’t have enough tonight to grant you a variance. Mayor Furlong: Other thoughts, comments. Councilwoman Tjornhom: I agree with Jerry that we don’t have, you know if we’re looking strictly at what’s in front of us, which is granting a variance for surface coverage that’s exceeding what as our ordinance has adopted, I’d have to deny it. If this council decides that at some point we should re-visit our ordinance and re-write our policy about hard surface coverage, impermeable surfaces, you know then that’s the time to have that discussion but for right now, with what’s in front of me I would have to go upon the Planning Commission’s recommendation in denying. Mayor Furlong: Thank you. Other comments. Councilwoman Ernst. Councilwoman Ernst: Just a question. So if we deny this tonight and we learn more about permeable surfaces in this particular area that we’re talking about tonight, it can come back for a variance again, right? Kate Aanenson: Of course. Of course. Councilwoman Ernst: Just because it’s denied tonight doesn’t mean that it can’t come back. Josh Koller: How do we do that? That would be my question. I mean where do I go and what do I do? Kate Aanenson: We can talk to him about that. Councilwoman Ernst: So with that in mind, I agree. I think we could use some more education on this. Learn more about what it can do and what it can’t do so. And we’ll depend on you to help us out with that. John Koller: Alright, sounds good. Mayor Furlong: Councilman Laufenburger, comments? Councilman Laufenburger: Councilmember Ernst just asked the question that was in my mind so that’s clear. 30 Chanhassen City Council – September 12, 2011 Mayor Furlong: Okay. I also, based on everything I’ve heard here tonight could not see supporting the variance request based upon the information in the staff report and other things tonight so. While this is an issue, I think the dealing with the permeable materials is something that has come up. We’ve spent over the years at a number of meetings and discussions, work sessions looking at this and it’s a, there are a lot of questions out there still and if there’s some other alternatives. I know last time we looked at it we looked at other cities and it was across the board but there were a lot of cities that, like us that just have challenges getting by there because of all the other parts of it and it’s a tough situation but appreciate the time and the effort here and I guess at this point I would ask for a motion from someone from the council relating to this request of this appeal. Councilwoman Tjornhom: Mr. Mayor, I’ll make the motion. Mayor Furlong: Councilwoman Tjornhom. Councilwoman Tjornhom: I make the motion the City Council denies Planning Case 11-07 for hard surface coverage variance to construct a Sport Court and adopts the Findings of Fact and Decision. Mayor Furlong: Thank you. Is there a second? Councilman McDonald: I’ll second. Mayor Furlong: Motion’s been made and seconded. Any discussion on the motion? Councilwoman Ernst: Just a quick comment. Mayor Furlong: Councilwoman Ernst. Councilwoman Ernst: So you’re going to be working with Kate? Kate Aanenson: Terry. Councilwoman Ernst: Terry. On how to bring that back. Josh Koller: Okay. Great. Kate Aanenson: Oh, in how to bring it back, sure. Yeah. And maybe if you come up with a different policy they don’t need the variance. Mayor Furlong: Right. Kate Aanenson: So we’ll just have to see how that shakes out. Todd Gerhardt: Mayor, council. What we would do is not look at the variance procedure but an ordinance modification if you can follow these specifics then you can be granted a Sport Court as long as it has the appropriate percolation for the amount of rain that be generated. Mayor Furlong: Any other discussion on the motion? Hearing none we’ll proceed with the vote. Councilwoman Tjornhom moved, Councilman McDonald seconded that the City Council denies Planning Case 11-07 for hard surface coverage variance to construct a Sport Court and adopts the 31 Chanhassen City Council – September 12, 2011 Findings of Fact and Decision. All voted in favor and the motion carried unanimously with a vote of 5 to 0. Josh Koller: Thanks for your time. Mayor Furlong: Yep, thank you. Move now to the next item on our agenda which is the Lake Drive Business Center, a request for a site plan review of 155 stall parking lot expansion at 950 Lake Drive. Staff report. LAKE DRIVE BUSINESS CENTER: REQUEST FOR SITE PLAN REVIEW FOR A 155-STALL PARKING LOT EXPANSION, 950 LAKE DRIVE. APPLICANT: CSM CORPORATION. Kate Aanenson: Thank you Mayor. As you stated this request is for a parking stall expansion for the Lake Drive Business Center. It’s located just at the Highway 5 and the current zoning on that is industrial office park. To the east you’ve got Robert’s Automotive. You’ve got the Lake Susan Business Park. To the west it’s vacant industrial land. We did receive one comment from, off of the Powers Boulevard property just immediately to the west. They had some concerns about the visibility of grading. Although that property isn’t developed, the grades on that are such that I’m not sure they would see a lot of it so, we did send them back our comment that it did meet ordinance. There’s no variances requested with this. It does meet ordinance so the parking lot expansion’s really to accommodate some additional parking on the southwest, 48 additional stalls. On the southeast, 41 additional spaces and then on the east 66. So this could be done in phases. The real goal here is to accommodate the ability for the property owner to sell this property and make sure that the user needs additional parking, the plan’s been approved so they can say that there’s already entitlement to the property and they could go ahead and proceed with the parking lot so it provides them the flexibility to a potential buyer. So the grading plan itself does have some retaining walls with it. On the southwest side it’s about 2 1/2 feet. On the southeast side it’s about, almost 7 feet. And the east side’s the tallest. The 8 feet and there’s a tall one on the north side which would be about 17 feet so there is one issue on the drainage and utility easement on this side. There’s the drainage, excuse me the retaining wall goes into the drainage utility easement. That needs to be moved. That may reduce some of the parking stalls there but I think we can accommodate that. Or the applicant can so when they come in for a final plans then they would have to accommodate that. And then there’s also an existing stairwell that they need to accommodate through that retaining wall. They’ve also submitted a landscape plan and there’s a few deficiencies in that but again we believe that can all be accommodated. Again this plan may not go forward immediately. It just depends on the currently they want to maximize the lease space in there so it does provide them the flexibility. The Planning Commission at their meeting did recommend approval of this plan when they had their meeting on th August 16 they voted 6 for, none against recommending the parking lot expansion and with that the motion we have for you would then also to approve the site plan for the parking lot expansion. With the condition in the staff report and with that I’d answer any questions that you have. Mayor Furlong: Thank you. Any questions for staff? Any concerns from the property to the east? Kate Aanenson: Yeah we did talk, we did talk to them. Mayor Furlong: Okay. Kate Aanenson: They live out of state. We did let them know that all the requests did meet code. There is additional landscaping that would be put in there and I think that was some of the concern that they would look and see a lot of landscaping. I mean it was a lot of parking but actually the landscape would buffer that so I think we’ve accomplished that and we. 32