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PC Minutes 09-18-2012 CHANHASSEN PLANNING COMMISSION REGULAR MEETING SEPTEMBER 18, 2012 Chairman Aller called the meeting to order at 7:00 p.m. MEMBERS PRESENT: Andrew Aller, Mark Undestad, Lisa Hokkanen, Kim Tennyson, Bill Colopoulos, and Kelsey Nelson MEMBERS ABSENT: Kathleen Thomas STAFF PRESENT: Kate Aanenson, Community Development Director; and Bob Generous, Senior Planner PUBLIC PRESENT: th Greg & Tammy Falconer 720 West 96 Street Gerald & Karon Story 6281 Teton Lane th Andrew Riegert 620 West 96 Street th Roger Lee 600 96 Street West th Gary Bendzick 731 96 Street West Naomi Carlson 5955 Cathcart Drive, Shorewood Chris Martin John Kunis PUBLIC HEARING: TH 620 WEST 96 STREET VARIANCE: REQUEST FOR VARIANCE FROM SECTION 20-904 OF THE CHANHASSEN CITY CODE TO ALLOW AN ACCESSORY STRUCTURE IN EXCESS OF 1,000 SQUARE FEET ON PROPERTY ZONED AGRICULTURAL ESTATE TH DISTRICT (A2) LOCATED AT 620 WEST 96 STREET. APPLICANT/OWNER: ANDREW & SHANNON RIEGERT, PLANNING CASE 2012-10. Aanenson: Thank you Chairman, members of the Planning Commission. This first case before you th tonight is located on 620 West 96 Street and the owners are the applicants, Andrew and Shannon Riegert. The applicants are requesting a variance from the 1,000 square foot accessory structure limitation and they want to construct a 2,560 square foot accessory structure. The property is zoned agricultural. It’s guided. Excuse me, it’s zoned agricultural but it’s guided for residential single family. The lot itself, as stated in the staff report, is about 4 1/2 acres, although that doesn’t, that’s gross. Doesn’t extract what we believe is wetlands in the rear of that. So the applicants purchased the property, shown here in yellow, in 1998 with the intention of constructing an accessory structure. They stated the intent for the 40 by 60 accessory structure was for additional storage and work space. The current zoning limits accessory structures to a maximum of 1,000 square feet so if they were to come in and submit a permit for 1,000 square feet of accessory structure and it met the setback criteria and the like, it would have been permitted. As you are aware in 2000 in response to a number of problems that we had with some of these larger square foot buildings the City did adopt a policy of restricting them to 1,000 square feet and we said that through a variance process we would look at these, if they were intended to be agricultural related, businesses where they’re hobby farms or horse property or the like so in 2000, excuse me, 2007 the, again the ordinance was adopted restricting the size to over 1,000. To less than 1,000. So in this neighborhood there are several accessory structures in excess of 1,000. According to the City records some of these structures were constructed prior to the 2000. I would say the majority of them have been and this is some of the instance where we have records, or couldn’t find records of some of the permits Chanhassen Planning Commission – September 18, 2012 being pulled and that’s one of the reasons, this is one of the neighborhoods, but we’ve had problems throughout the city regarding these structures and then how they would be used in the future. Maybe not the current owners but maybe owners in the future looking for a type of business that they could use it for. And also for the record too, we’ve also, used to allow and we’ll talk about this in more detail later, contractors yards in these but that was also stopped a number of years ago too. So because the applicant, while there is nothing on the property right now, has a right to go forward with a 1,000 square feet, we recognize there are other larger properties in the area but for us the staff the strict interpretation of law based on the fact that this area is guided for lower density residential and we believe that 1,000 square foot is adequate for this type of use, we would not support the variance at this time. We put together Findings of Fact in your staff report. Again those relate back to the agricultural zoning. The fact that, what the intent of the agricultural zoning is and this doesn’t meet it and we believe the 1,000 square feet would be adequate. There are some of that size in the neighborhood so with that we are recommending that it be denied and we’ve attached the Findings of Fact in your staff report. And I’d be happy to answer any questions that you might have. Aller: Any questions from anyone at this point? The, it looks like there was an addition on the property in 2004? Aanenson: No, not on this one I don’t think. To the house, I’m sorry. Yes. To the house, there is a garage attached to the house. I’m sorry, yes. Undestad: Do we know how many of those buildings in that neighborhood are not permitted? Aanenson: Again backed in for agricultural purposes, if it was on agricultural land and they weren’t permitted and that’s why we went back and changed those. It’s not just this neighborhood. We had some other ones that things got pretty excessive as far as the square footage and so we wanted to cap that. When we were spending a lot of time on the complaints and certainly this application doesn’t have an accessory structure yet so. Aller: Okay, then in 2007 it looks like the city code was amended to prohibit anything in excess of 1,000. That was the dateline? Aanenson: 2007. Aller: 2007. Aanenson: 2007, correct. Aller: And at that point there were public hearings and. Aanenson: It was noticed. It was gone through. We had quite a lengthy discussion. It was noticed in the paper. We did it with a code amendment but yes, there was I think certainly the applicant has concerns about that. That they maybe felt like they weren’t duly notified but we went through our normal process for a code amendment, correct. Aller: I don’t have any further questions. If anyone else has. Colopoulos: Yeah, I had one about the agricultural use provision that was adopted in 2007. How many of the structures in the area, and just ballpark percentage had been constructed in excess of 1,000 feet before there was that ordinance. 2 Chanhassen Planning Commission – September 18, 2012 Aanenson: All of them, yeah. Colopoulos: All of them. Aanenson: Yeah. Colopoulos: I mean there was pretty much every, there were a lot of non-conforming structures, or I should say grandfathered in structures. Aanenson: That’s correct. Colopoulos: Once the ordinance regarding agricultural use was adopted in 2007. So if I want to expand a structure in excess of 1,000 feet after 2007 it would have to be for agricultural use. Aanenson: Well you still have to come before. You’d have to demonstrate how, you know I think what we said we’d take it on a case by case basis. Looking at whether it’s for a hobby farm or whether it’s for horses or how is it being used, so we look at that as part of your criteria. Again the comp plan is for agricultural, preservation of agricultural we said we’re not going to continue to do that. We also said in the comprehensive plan that we did not want to proliferate commercial uses in these areas and that’s why we changed that. Aller: Okay. Hearing no further questions I’ll open, or I’ll ask the applicant. If the applicant wishes to come forward and make a presentation, that’s great. Please state your name and state your address for the record. Andrew Riegert: Good evening. My name is Andrew Riegert at 620 West 96th Street. That’s where we are living and what I guess my main concern with the, with this new ordinance is, you know I know they had to pick a number but I don’t know why, where they rest at 1,000 square feet. I just don’t see how that, you know I just don’t know where that number comes from. Some of the things that I want to do in this building are mainly revolve around storage and hobbies and that’s just not a lot of space when you’re trying to store a boat and some snowmobiles and a couple of, you can see in the packet, some vintage automobiles and things like that. It doesn’t take long to fill up 1,000 square feet. That’s basically what I have on my house right now. I understand that there is concern about the home occupation and we just, I have a 5 year lease for a, I have a home, a personal business. I have a landscape company and I just signed a 5 year lease in Waconia for a 6,000 square foot building so needing space on site is certainly not an issue so it’s clearly just for hobby purposes so. In somewhere around ’98 or 2000 when we applied for a permit to have a driveway put in for this accessory structure and paid to have an area leveled out for it so there’s already been quite a bit of cost put in to the development of this so I guess the way I feel is that if I’m limited to 1,000 square feet, it’s not enough storage for me so I might have to go up a level. Maybe do a two story building, which I don’t really want to do. I think the cost would be prohibitive and I just don’t think it would look very nice. It wouldn’t fit into the character of the neighborhood like they ask us to do so. This size of a building is actually one of the smaller, would be one of the smaller sized buildings on the street. You can see the numbers up there of some of the other buildings so I certainly don’t think it’s out of line. That’s about what I have so thank you. Aller: Could you just explain a little bit more about what types of, I mean you use a broad term there for you know hobby and such. Andrew Riegert: Oh sure. 3 Chanhassen Planning Commission – September 18, 2012 Aller: Can you tell us what kind of things you’re expecting to do with it and what kinds of things you’re supposed to store or would consider storing. Andrew Riegert: Absolutely. Yeah, I have 3 snowmobiles. One for my kids. Snowmobile trailer. I have, there’s a picture in here, I have a vintage pick-up truck and I am currently restoring another vehicle so that’s one of my hobbies is vehicle restoration and so there’s you know machinery to do that. There’s drill presses. There’s lathes. There’s metal brakes. Large tool boxes. Basically what I have is 1,000 square foot garage and I, between all the kids bikes and the two vehicles it’s pretty much full so if I, by the time, well I’m also paying my neighbor to store my boat so it’s, it doesn’t make sense when I would like to be able to do that in my own back yard so, by the time I store a couple of items in there and then still have room for work space for that, it’s pretty much, I’m out of room. Aller: And then was there a reason that when you first put in the driveway, I don’t see anything here where you showed up at the hearings, I don’t know whether you did or didn’t. All I know is, new to the commission myself since this ordinance was put in place, this zoning was put in place, the typical thing is that there are notices out to the public. The public come in. There are hearings. There is a determination that that’s what’s best for the city and that’s where the 1,000 foot comes from so I don’t have to necessarily look at that I don’t think but what is your position with that that you didn’t build it before? Andrew Riegert: Yeah, right, right. Well I wish would have, obviously. No, the main reason is I just didn’t have the finances back when we put the driveway in and I was just starting a business myself so I didn’t have the money to do it for one thing. And then honestly in 2007 I just didn’t know that the ordinance went into effect. I had heard rumblings of some of the people in the area, even on our street that were having troubles with home businesses but it went no further than that. I know pretty much everybody just complied and changed what they were doing and it just, it wasn’t a need at the time. It wasn’t something I was looking to do at the time and I guess I didn’t look into it or hear about it honestly because it was a surprise to me when I went to do this what, probably 2 months ago now so. Aller: Okay. Colopoulos: But back in 1998 it was your intention to do it as evidenced by the fact that you built the driveway to the pad. Andrew Riegert: Right. Yeah, yeah. It was, I think I was told that there was a 5 foot setback and I, as I don’t need to be that close to the property line, even then I didn’t but I was actually really surprised that being a growing city that that was really the only restriction and then I just. Aanenson: Yeah, it’s 10 feet. Andrew Riegert: 10 feet, okay. And I didn’t do anything formally. I never applied formally for anything. Aller: And the pad is big enough certainly to do a 1,000 feet because it’s less than what you’re asking for. Andrew Riegert: Oh yes. Yes. Yep. Aller: Any other questions? Undestad: How big is the pad I mean when you did it back in ’98? What were you anticipating then? 4 Chanhassen Planning Commission – September 18, 2012 Andrew Riegert: Wow. I think I was anticipating somewhere around a 2,000 square foot building. The pad is actually bigger so you’d have room to drive around it so I would say 60 by 80. I haven’t specifically measured it. Undestad: Okay. Aller: Any other questions? Okay. Thank you very much sir. Andrew Riegert: Okay, thanks. Aller: With that I’ll open the public hearing portion of the meeting with regard to this particular property. If anyone wishes to come forward and speak either for or against the request. Seeing no one come forward, oh. Thank you. If you could state your name and address. th Roger Lee: My name is Roger Lee. I live at 600 West 96 Street. I’m Andy’s neighbor. I guess I’m just here to say I’m in support of him being able to build a shed of a couple thousand square foot. And I was not aware that things were changed you know to go to 1,000 square foot. I understand you said you put it in the paper. All the other times we get notified we usually get a postcard in the mail if it’s directly affecting us. I don’t believe that was the case. I mean so I don’t feel I’m obligated to read the paper for everything that’s going to affect me personally so, if you guys had that in your, any of you are zoned Ag where you live, did this affect any of you guys? I mean would you have voted that way if it would have affected your house? Aller: I don’t know because I wasn’t there and I didn’t hear all the arguments at the time. Roger Lee: So, but you understand where I’m coming from. Aller: Sure, I understand your position. Roger Lee: So that’s really all I have. I don’t see any reason why he shouldn’t be able to build a shed just like the rest of us have. We’re out there. We’re zoned Ag. We knew that when we bought the property. I think it’s going to affect the sales of our property you know because right now you know we always thought we could put a shed up. If you sell your property, you don’t have a shed, the new owner can put up a shed so I mean that’s just, I just don’t think it was, I don’t think we were notified fairly or allowed to have an input on that decision. I guess that’s all I have. Aller: Thank you Mr. Lee. Roger Lee: Yep. Aller: Anyone else wish to come forward and speak either for or against? Alright, seeing. Naomi Carlson: I’m Naomi Carlson, is that my property here that you’re looking at? Aller: No. Colopoulos: No, it’s too soon. Naomi Carlson: Okay, thank you. Aller: Anyone else wishing to speak for or against this particular item? 5 Chanhassen Planning Commission – September 18, 2012 Gary Bendzick: I’ll speak. Aller: Okay. th Gary Bendzick: Gary Bendzick. I live at 731 West 96 Street. When I put up my shed I was told at that time I could put up anything I wanted as long as it met the setbacks. I know that planning has changed that but I look at the land that we’re on and I look at what planning is proposing to do to change this more toward residential. This isn’t residential property. This isn’t property line in town here. Yes we’re in the city limits of Chanhassen but these are large acreage lots. Most of the people across the street from me have horses. These horses aren’t going anywhere. They’re going to have horses there til they die and I just don’t see the sense that this large acreage lots is being basically forced to comply with a more residential area. I’m definitely in favor of this structure, and also the one that’s you know going to be after this one and I think that this is a place where this stuff needs to be allowed just because of the type of land that we have. Thank you. Aller: Mr. Bendzick, before you go. When did you put up your shed? Gary Bendzick: When did I put it up? Aller: Yeah, you indicated you had put your’s up. Gary Bendzick: I believe it was 2004. Aller: 2004, okay. Thank you. Anyone else? Seeing no one come forward we’ll close the public hearing. Comments, questions. Undestad: You’re looking my way huh? You know. Aller: Just looking for your input. Undestad: No, I think I kind of struggle a little bit with this one here. Just somewhat understand why someone buying their large site with the idea of I’m going to put up, you know I’m buying this land because I can do this. You put all of your money into buying your house and your land and you can’t do the structure right away but now you can and things have changed so. But I also I think looking at all the structures that are in there, you know so we can maintain control over the home based businesses that were the concern why we put this together in the first place. On the other hand I’m looking at you know we do this and we’ve got something coming up behind that and something behind that and. Aller: Anyone else? Colopoulos: I’m motivated by two influences here. Number one, I’m curious as to who thought the agricultural rule in 2007 was a good idea. We just heard from 3 residents on this, of similar properties in that area that obviously don’t feel that that was a necessary move. Secondly, you know I take a very dim personal view of limiting anyone’s use of their property unless there’s a very good reason for it. I mean I believe that rules should serve the people and not the other way around. So I’m inclined to be in favor of granting this variance based on what I’ve heard here, in this one particular case. I mean there could be other extenuating circumstances regarding the issues that are following us here this evening after this one issue but based on the merits of what I see here there was clearly intention to build this structure back when the property was purchased at which time there was no inhibiting ordinance or rule that would have restricted the property owner’s ability to do that. And you know the only concern I think we all have 6 Chanhassen Planning Commission – September 18, 2012 going forward is the use of the structure for a potential non-conforming home business, which we all understand can be problematic once they’re, once they become in place. I’m sure there’s a lot of legal fees involved with that with the city attorney and back and forth, but that’s another issue. I don’t think fear of a future violation is enough reason by itself to deny a request. Aller: Well I tend to disagree with the analysis in general because I think that we become part of the community when we purchased the property and one of the things that we’ve done, and this is, the property is guided residential so we’ve got a 2030 plan. That plan, we use experts. We have hearings. It takes a better part of a year, two years to put together and it was the intention at that time I’m sure to start limiting the excessive use on this particular property. That’s not to take away from the intention of a homeowner and there a lot of things I would have liked to have done in my life that I am not able to do and have not been able to do because times change. Rules change but I’m inclined to say that 1,000 feet was decided for a reason and I wasn’t there but that’s the state of the structure that 1,000 is sufficient for purposes of storage of materials. That the community at large deserves a plan so that when I have my heart attack or get in a car accident or decide not to sit on the commission or the panel changes, that property isn’t controlled by politics of particular individuals coming from a certain neighborhood or a certain ideology and I think that’s one of the reasons why we have that long term plan and it’s required for cities to have and why it goes through such an intensive process so I’m tending to say that we shouldn’t deviate from that plan unless it’s really exceptional and because of the fact that he’s got use of his property, a reasonable use, that he’s not being unreasonably restricted and in fact he’s got the ability to create another 1,000 square foot structure so that’s my opinion. Undestad: May I? Aller: Anyone. Undestad: No okay, I mean again it kind of comes back to the 1,000 square feet back when it was determined and by whom and why and Kate if you want to address that but it was more the contractors. Aanenson: Yeah I mean let’s talk about how the city’s evolved. When we did the 2000 comp plan, the 2020 comp plan, now the 2030, we said in that comp plan that we’re not going to be, we’re not preserving agricultural in this community. Yes, there’s going to be horses and we did grant a variance for a property up on, that is agricultural. We approved for a barn up there because it was agricultural and there’s an active farm but there’s very few of those in the city. The other thing that we’ve changed over time since the comp plans and the city’s zoning ordinances, we used to allow when the city was more rural, we used to allow contractor’s yards and these types of business. We also stopped doing that because they’re incompatible. That’s our number one complaint in the city is contractor’s yards. I’m not saying, I’m not accusing anybody of doing this but over time they do become a nuisance. Not everybody in this neighborhood has the ability to have as big a structure so you know we try to find a cap. There was some sort of nexus to say that’s what, in a residential zoning district, the 1,000 square feet and we said there are going to be some areas where it may conflict and we’d look at those on a case by case basis was what you’re looking at now. What is the appropriate basis to make that decision on how is it being used? What’s the character of the neighborhood? Yes, there are structures out there and we felt the 1,000 seemed reasonable for additional storage and we did put in this, if you felt inclined to go somewhere inbetween that range, not everybody in that neighborhood has you know 10,000. Some people have you know slightly over 1,000 so trying to find that range but once they’re up there and they’re built, they’re bigger than the houses there and that’s what we’re trying to say. If we’re mostly going to be residential than what is the long term value of these when our goal says we don’t want to encourage spreading of commercial pockets. Where we have those now we’re trying to work through those issues of incompatibility so we made those decisions and it’s not perfect science. This is a neighborhood that there 7 Chanhassen Planning Commission – September 18, 2012 tends to be a lot more of them. Others of them are sprinkled around through the community so we’re just trying to find that balance. Laurie Hokkanen: Does it get back to the agricultural use, the use of the building? Aanenson: Well that was our intent back then and obviously people have hobbies you know so we’re saying that’s kind of what we were looking at is what’s the rational basis. How big of a storage space do you need for your hobby? What’s the appropriate scale? Is it for charging people to store stuff in there? Is that a rental income? Is that a commercial type use? We’ve got those kind of businesses in the community and that was part of, we had a long protracted discussion on when we went through that zoning ordinances when people are using that to store when you’ve got businesses in town that do cold storage sort of thing so we’re trying to say well what’s the basis for that. For your own personal needs, how much do you need if it’s not a hobby farm and every one, every circumstance you’re seeing here is different so that was the basis for that. Colopoulos: See that’s where I’m having issues with the comprehensive plan. I don’t see it as the inflexible document. I don’t see it as an instrument, as a blunt instrument that just basically says okay this is how we envision our community going forward without exception. There are flexibilities built into it. The agricultural use is one of them. You know and so I think that’s something that needs to be explored a little bit from the perspective of you know Ag because to me the first thing I thought of when I read this was, it was kind of my first reaction was well gee if he was in here proposing to build a 2,500 square foot chicken coop, that’s a conforming agricultural use and I wonder how the neighbors would feel about that so, I don’t know where that 1,000 square foot, you know I just, I just don’t, I guess I don’t understand. You know I understand where the process that led us to, you had to pick a number. I just think that might have been a number that in retrospect might have had a little bit more flexibility built into it and we wouldn’t be having these discussions. Aanenson: Well we looked at all the, we looked at all the agricultural zones in the entire city and where they would be. What the implications of the ordinance would be when we put this together. Again it was a pretty protracted conversation. A series of several meetings where we looked at all those agricultural zonings. Where they’d be. What are the problems. Where the rub points are and. Colopoulos: Were you concerned about limiting the size of the structure so it wouldn’t encourage home based businesses? I mean was that the rationale? Aanenson: That’s one of them. That’s one of them and if someone’s doing it for agricultural purposes, if they’re riding horses or if those sort of things, sure I mean but I think you know at what point do you say if someone’s got 10 acres what’s the basis for continuing storage and what becomes down the road when someone else has another goal for that. Cabinet shop, you know those sort of things which we do have problems with. They become a business. Colopoulos: I was going to say I can do a cabinet shop very easily in 1,000 square foot structure. Aanenson: Right, and we’ve had to litigate those unfortunately so you know I’m just trying to… Aller: See the enforcement issue is still there. Aanenson: And not this particular case but representing the cases that we’ve had in the past and that’s how we came to that basis and whether or not it’s being fairly applied you know, we just came through that as a discussion to say well we’d look at them on a case by case basis. We did put an alternative in 8 Chanhassen Planning Commission – September 18, 2012 here. Somewhere kind of splitting the difference or a range within there to say something, you know if you felt so inclined. Aller: And I’m not saying it’s not inflexible because that’s what the variance is about. Colopoulos: Right, exactly. Aller: That’s why we’re here looking at it. What I am saying is that I’m more inclined to stay with something unless I hear a reason to change, and I’m not hearing that the use is incompatible with 1,000 square feet at this point because I don’t want to be, I guess as the old adage with the camel getting his nose in the tent and the next thing you know you’re outside and he’s sleeping inside so. Where do we go with that? Anybody have any suggestions? Have we looked at the middle road? Tennyson: I have a problem with focusing on the numbers just because even if you take the numbers away it’s still a variance and a variance has a certain threshold to get to and that would be the hardship and it’s not there. In theory for what a variance is supposed to be. Nelson: …I feel that this could end up being sort of a slippery slope and all of a sudden we’re starting to revamp the 1,000 square foot situation. Aller: Okay, would anyone like to make a motion one way or the other or inbetween? Colopoulos: One last note. The applicant did list the various items he intends to store as an explanation of why 1,000 square foot structure was inadequate. I just want to make sure that gets in the record. Aller: And then just as a last, does the report state that that other structure that was non permitted in 2005 would be taken down or is that going to remain? Is that this property? Nelson: It’s the one next door. Aller: Different property? Okay. Nelson: Yep. Aller: I’ll entertain a motion or further discussion. Undestad: I’d be in the further discussion side of things. Hokkanen: Yeah. Undestad: You know I just think that what we’ve got, again sitting through a lot of the 1,000 square feet and the areas we were looking at and the problems we were having with contractors and businesses and, but I think again I look at this and say alright, as a board of appeals you know somebody comes to us and he goes I bought this. I want to do. You know I had plans back before. Granted he, you know somebody didn’t get the notice or didn’t show up or voice concern for that but I think we have to look at this lot in the middle of this neighborhood and you know up and down both sides of the street there’s nothing but outbuildings in there. Hokkanen: Structures. Large structures. 9 Chanhassen Planning Commission – September 18, 2012 Undestad: You know and again it’s, the primary reason or one of the reasons was you know the home based businesses and to keep that out of there. Well I think we all know the phone rings right away if somebody tries putting in their home based business right away. If it was in a neighborhood where he was the only one in there, you know I might look a little different at it. Right or wrong but I just think in this neighborhood you’ve got 13,000 feet. 6,000 feet. 4,000 feet. You know there’s just, and again what he stated and what he’s trying to do in his facility, you’re probably not going to be able to tear apart cars and do your hobbies and rebuild stuff and store everything in 1,000 square feet. That is a small area but. Aller: Does it make a difference that 8 years ago he build 1,000 structure and then. Undestad: Well he didn’t have a garage. That was a garage he put onto his house. Aller: Well that’s why I’m asking. Undestad: Well but you know you have to put your cars in the garage. Hokkanen: Well I also think he had clear intent with the driveway and the pad to do something, whether he was notified or not or didn’t know about it. Every other home along side of it, and I see his point for resale, everybody else on the street has some kind of out building and now he can’t have something similar. There’s the one that came in without permit that went up. Nobody’s make him take it down. He’s coming in asking for permission to do it properly with a variance. It just seems. Undestad: I think the other thing too is that the applicant needs to understand yeah you’re, the 2030 plan is changing. I mean it’s the change. The densities out there. You know okay, if you spend money putting up your building on here that some day this land will change and you’re going to tear your building down but you know that going into it so. Aller: Then we turn to hardships. I mean I’m hearing that you want to say that that’s a reasonable use as collective so the question would come, does he fit the bill for a variance under the hardship. Hokkanen: Kate, what’s the actual legal words for the variance? I’m not the lawyer on the commission. Tennyson: Practical difficulties. Hokkanen: Practical difficulties? Aanenson: Yeah, the first one is, they’re in harmony with the general purpose and intent of the chapter. Practical difficulties would be topography. Limited space. Is not based on economic consideration alone. The…land owners due to circumstances need the property not created by the landowner. It will not alter the essential character of the neighborhood. And then I think those are the ones that would apply on this. The other ones have… Aller: So I think, I don’t believe it fits with the harmony of the plan, however it would not change the character of the neighborhood. So then we move to the others which are, what was it? Created by him. I don’t believe is the case but does it fit the bill for purposes of, is it a hardship not to have an accessory structure to store boats? And other items. Hokkanen: For agricultural use. Aller: Not for agricultural use. 10 Chanhassen Planning Commission – September 18, 2012 Hokkanen: Right. For not, right. Aller: Does anybody feel one way or another? I mean if we go down the criteria I say it would be 3 against, 2 for. In looking at those criteria, the way I’ve described them but if somebody has a different feeling please. Colopoulos: I think hardship is a subjective determine which is the one I’m struggling with. I mean I’m a boat owner and for 23 years I’ve been storing my boat somewhere other than my property in the winter as a matter of convenience. However if I had a 4 1/2 acre property and wanted to build a shed to store my boat I would consider that to be a reasonable use of my property and would consider it to be an inconvenience. I don’t know if hardship is a strong enough term, okay, but an inconvenience to have to store it on a neighbor’s lot and if that neighbor’s lot had, or excuse me structure happen to be a neighbor of mine right next door I might not feel you know, I may feel more than inconvenienced. At that point I might feel myself ill used somewhat. Now does that raise the, you know my consternation to the level of hardship? I don’t know. I think hardship is a difficult aspiration for this thing, but nonetheless I would tend to call it 2-2 tie okay. That’s how I would. Aller: And abstain. Colopoulos: Your list of criteria there but the other point I would like to ask the Chair, being new to, relatively new to the Planning Commission and having stumbled through more than one motion I’ve made already, could we make a motion conditional upon a guarantee from this owner that would, that could possibly succeed this owner against any commercial use down the road? Aller: I don’t see… Colopoulos: We couldn’t do that. Aller: Ask for or enforce. Colopoulos: We couldn’t ask or enforce that, okay. Aanenson: We did put that as a condition of approval that it goes with the chain of title. Colopoulos: We can do it a condition of approval. Aanenson: You can attach reasonable conditions. I think the challenge is just to make sure it doesn’t happen and we have to in good faith, if you put that in there assume that that’s not going to happen but you certainly can attach reasonable conditions with the variance, and we did put that in if you did want to structure something over the 1,000. We did add that. It’s on page 7. Starting on 5 on page 6, yeah. That would have to get a building permit. Meets the building code. Outdoor storage and yeah. Colopoulos: Well in that case I think I’ll have a lash at a motion here. Aller: Okay. Colopoulos: I’ll move the Chanhassen Planning Commission acting as the Board of Adjustment and Appeals approves Planning Case #2012-10 for a 1,560 square foot accessory structure area variance from the 1,000 square foot accessory structure limitation to allow for a 2,560 square foot accessory structure on th the property at 620 West 96 Street conditional upon the structure and property not being used for any home based commercial application. 11 Chanhassen Planning Commission – September 18, 2012 Hokkanen: That only had one condition on it. Colopoulos: Right. Hokkanen: Okay. Aanenson: Chair, can we get a clarification then because there’s a motion on the floor with one condition, correct? Aller: With the additional condition. Aanenson: Yeah, just one. Colopoulos: Oh I’d like to, could I add, yeah I’d like to add two other conditions. The accessory structure will require a building permit. Must comply with Minnesota State Building Code and the outdoor storage facility must comply with the City Code. Nelson: In addition to the other one? Colopoulos: In addition to the other, to item 4 which I already mentioned. The accessory structure may not be used for the purpose of a home occupation as defined in the Chanhassen City Code. So I’d like to amend the motion with those changes. Aller: Okay, I have a motion before me. Undestad: Second. Aller: And a second. Any discussion? I’m not sure I want to go with the full 2,560. Nelson: What if we went 2,000 based on the fact that we have one property with 1,300. We have another property with 2,000. We have one that’s under the 2,560 adjacent from that property. Based on the fact that maybe it doesn’t meet the full hardship but at the same time it’s not going to change the neighborhood by providing a 2,000 square foot accessory building to the property. It would still be within the neighborhood and the feel of the neighborhood but at the same time. It would still at least double what was provided so it would be a reasonable variance. However not a full variance in the fact that, I agree. I don’t know that it necessarily meets the hardship requirement. Aanenson: Mr. Chair again before we get to, we’ve got a motion and a second so I think just so we don’t confuse it I think we should act on your motion since there’s a motion and a second and then see if it goes or no goes and then, just to be clear that we’re following Robert’s Rules here. Aller: Well at this point we’re discussing a motion. Aanenson: You are? Okay. Colopoulos: Right. Aller: There could be a motion to amend the motion there so. Aanenson: Okay. Alright, I’m sorry. 12 Chanhassen Planning Commission – September 18, 2012 Aller: We’re still following the rules but I just want to make sure we’re, but thank you. Colopoulos: Just slow. Aller: Well we’ll be out of here by 11:00. Nelson: I guess at this point I would amend the motion for 2,000. For a variance of 2,000. It would at least provide additional storage but at the, and keep it within the neighborhood feel but at the same time, due to the fact that it didn’t meet the hardship and it would still have those 4 conditions stated in the previous motion. Aller: So we have a motion to amend, unless you wish to. Colopoulos: And I can accept the friendly amendment, correct? Aller: Yes. Colopoulos: Okay. And adopt it. That’s what I choose to do. I’ll adopt a friendly amendment to 2,000. Aller: There’s been a friendly amendment which reduces it to 2,000 with the same conditions. Do we have a re-second? Undestad: Second. Aller: With a second. Any further discussion? Colopoulos moved, Undestad seconded that the Chanhassen Planning Commission, acting as the Board of Appeals and Adjustments, approve a variance request for a 1,000 square foot accessory structure area variance from the 1,000 square foot accessory structure limitation to allow for a 2,000 square foot accessory structure, with the following conditions: 1. The accessory structure will require a building permit. 2. The accessory structure must comply with Minnesota State Building Code. 3. Outdoor storage must comply with City Code. 4. The accessory structure may not be used for the purpose of a home occupation as defined in the Chanhassen City Code. All voted in favor, except for Aller and Tennyson who opposed, and the motion carried with a vote of 4 to 2. Aanenson: Just for clarification then for the audience…super majority so this will automatically then now go to City Council because we didn’t have a super majority. You need the 5 votes to go forward so th this will appear at the City Council meeting with their recommendation on October 8. Okay, so anybody tracking it. Aller: So those of you that are listening please make sure that if you’re interested in that, follow that on the website and at the City Council meeting. 13 Chanhassen Planning Commission – September 18, 2012 Colopoulos: City Council will render final approval. Aller: Correct. The recommendation will be to pass without a super majority. Moving on to item 2. PUBLIC HEARING: TH 720 WEST 96 STREET VARIANCE: REQUEST FOR VARIANCE FROM SECTION 20-904 OF THE CHANHASSEN CITY CODE TO ALLOW AN ACCESSORY STRUCTURE IN EXCESS OF 1,000 SQUARE FEET ON PROPERTY ZONED AGRICULTURAL ESTATE TH DISTRICT (A2) LOCATED AT 720 WEST 96 STREET. APPLICANT/OWNER: GREG & TAMMY FALCONER, PLANNING CASE 2012-12. th Aanenson: Thank you. Same neighborhood. This address is 720 West 96 Street and this is Greg and Tammy Falconer, homeowners and applicants. Again this property is requesting a variance from the 1,000 square foot accessory structure limit. This one has two existing structures on the site and I’ll kind of go through the history here a little bit but in December the City Council approved a conditional use permit for a contractor’s yard on the subject property. Again back in the 80’s, late 70’s contractor yards were permitted on these large lots and again the City has done away with that. When the CUP was permitted there was actually two lots, 710 and 720 and those are the conditions there. They also in your staff report we enumerated the uses that could be permitted with that and all vehicles had to be stored within, it’s our opinion that the expiration of that conditional use because it’s not being used as a conditional use was permitted so in our opinion that contractor’s yard is void because they’re not using the cement mixer, the one bulldozer, as stated in that and it becomes non-conforming. That aside this is how the property looks today. The existing building to the north here and then this addition was done. Again that addition was done prior to the 2007 requirement. I’ll go through that in a little more detail and you can see the outdoor storage and then this is the expansion area but I’ll go through that in a little bit more detail here with the site plan. So you have the original shed. There was a snow load collapse on that one you can kind of see here. I have another picture of that and that’s what the applicant just wants to replace is that portion of the building. So with that the original shed and now rebuilding of that so that would give you the total of 1,800. That would be this total expansion area here so this building in 2000 was constructed. Again that was permitted because we didn’t have the rule in place of the limit of the 1,000 square foot so the total out there then would be, for both structures, would be almost 6,000 square feet for accessory structure. Again going back to what we stated previously in the zoning ordinance is the structure limits to the 1,000 square feet. Again the non-conforming structure is in use. This allows for the non-conformity to continue. Now we’re talking about the existing building so the roof can be repaired on that existing building. It’s the expansion of that building even going beyond that, that expansion of the non-conformity. As we stated earlier that building is not being used as was permitted under the conditional use so in speaking to the city attorney that use is no right now. So again the contractor’s yard is prohibited as the current city ordinance today. I’m not saying that that’s the intended use for that property. I’m just clarifying the history of that. So this is the existing building that wants to be replaced. You can see that the roof, there was a snow collapse out there and this is the building that is intended to be replaced and there’s a new metal building going up. It’s kind of, the word-smithing on that was just a small addition but really this building’s being replaced with a metal shed. The plans are in your packet kind of to match that. Again we’re saying there’s reasonable use of that property with existing building. Certainly this roof could be replaced if they want to. They have that right. You can repair a non- conforming structure by city ordinance and it’s just a continued expansion of that building is where the staff was making that interpretation. Again we talked about the comp plan. This area. Agricultural use does not provide in this area not being used for that type of purpose and then again the expansion, discourage of commercial industrial activities in these areas was our goal when we made those changes. So for those reasons we did recommend denial and certainly the applicant has the right to fix that roof so with that we’d be happy to answer any questions that you might have. 14