Loading...
PC Minutes 12-7-04 Planning Commission Meeting - December 7, 2004 7. Show the location of the existing boulevard trees along Audubon Road and Coulter Boulevard. f r t t ; i . f i J i t f t I ~ r t I f i g) Any retaining wall over 4-foot in height must be designed by a registered structural engineer in the State of Minnesota and require a building permit from the City of Chanhassen Building Department. h) A concrete driveway apron and pedestrian ramps will be required at the access location. 12. Add a landscape buffer between the parking lot and daycare center. 13. Revise the parking lot plan to better accommodate the cars around the medians. All voted in favor and the motion carried unanimously with a vote of 7 to O. PUBLIC HEARING: REQUEST FOR AFTER THE FACT VARIANCE FOR ENCROACHMENT INTO LAKESHORE SETBACK LOCATED AT 6900 MINNEW ASHTA PARKWAY. RICHARD & JUDY BERLAND. PLANNING CASE 04-42. Name Address I ~ t ~ t t 1 ~ c Public Present: Rich & Judy Berland Garry Jones Sharon Morgan Dave Headla Chris Knox 6900 Minnewashta Parkway 6738 County Road 72 3920 White Oak Lane 6870 Minnewashta Parkway Sharmeen AI-Jaff presented the staff report on this item. Sacchet: Questions from staff. Claybaugh: Yes. Could you put that photo back up on the screen please. Sacchet: That one? Claybaugh: Yes ma'am, that's correct. Staff report indicates they're looking for a variance for a foot and a half or a 10 foot setback from the ordinary high water mark. Either that photo is terribly deceiving or. AI-Jaff: Here is another one. Claybaugh: Okay, that looks a little better. Okay. 75 Planning Commission Meeting - December 7, 2004 Sacchet: There's a bunch of rocks. You see it's not the water. There's actually quite a bit of boulders put in there. Claybaugh: Okay. Typically when they call in and ask is a permit required. No it isn't. Is there any indication to the person calling in or the resident that there is other outstanding requirements for the shoreline setback or shoreline impact regulations, so on and so forth? AI-Jaff: Typically if we received a call, one of the first things we ask is, where is this. Give us a location. We can assist you better and that's how we answer questions. If this was on a flat piece of property that wasn't adjacent to a lake, it's a different answer than they would get. Claybaugh: I'm assuming that there isn't, but maybe there should be some kind of process for as people call in, at least something gets logged in that acknowledges that that person called in and what dialogue took place. Is there anything like that or has the city ever considered that? It seems like we get quite a few of these. I don't want to say deal with them frequently but it certainly seems that way sometimes. And it ends up being a bad situation all the way around. People feel like they've done due diligence and on the other hand, the land is out there continually taking you know small hit after small hit so. You don't have to answer. AI-Jaff: We get a lot of calls every day. Generous: Mr. Chairman, if I may. Since the city amended the zoning ordinance we do have that zoning compliance review and we have been telling people, since that adoption that no, you don't need a permit but there is a zoning compliance review. So we'll look at. Claybaugh: So there is a paper trail at least? Generous: Well there should be ifthey come in for it but. Sacchet: Okay. Rich, questions? Slagle: I would just like to know how we define and the difference between a water orientated accessory structure. Call it a deck. I mean. AI-Jaff: There is a definition. Slagle: Okay. I just don't know it. I apologize. AI-Jaff: I believe it says an attached deck and we want to work with the applicant. We want them to enjoy the patio along the lake and we figure detached deck or gazebo or a patio, they fall under the same category and that's how we determined that this is a water oriented structure. It kind of falls under that. Slagle: So if I can, based upon your answer there are a lot of things that, if that picture was to be put up again, that we could view that would be that close to the lake, or call it another foot and a half, that we would consider okay. 76 Planning Commission Meeting - December 7, 2004 Claybaugh: And have walls and a ceiling. Slagle: And have almost yeah. I mean I'm just telling you, that seems really close from, and I'm a lakeshore owner as well. That seems really close. Just telling you folks. Anyway. AI-Jaff: Commissioner Slagle, if you turn to page 2 of the staff report, under water oriented accessory structure or facility, the last permitted use in that paragraph is detached decks. Slagle: Well and I've even seen screened houses and gazebos. Generous: And sheds. Sacchet: Fish house. Pump house. Boat house. Alright, any other questions? Steve. Lillehaug: Page 4. There's one word that really gets me on that page and it's under lakes and it's the second paragraph and it says appears. It appears to be set back 8.5 feet, so really it might be 10 feet. Sacchet: Is it or isn't it? AI-Jaff: It might be. Lillehaug: So we don't even, I mean to me we can't even look at this because we don't know where the OHWL is and how are we supposed to make a fair judgment here, because we don't know where that's at right now. Appears is not a word that I'm going to make a judgment on. Sacchet: Good statement. Alright, that's not a question. That's a statement. We heard it. Any others? Questions. Slagle: You heard it? Sacchet: We heard it. I have a question. On page 5 on the bottom, it says the retaining wall was built within the right-of-way of Minnewashta Parkway. This retaining wall was required to be moved out of the right-of-way because it was a liability to the city and potential threat to public health and safety. Does that mean they actually have to move the retaining wall already? Generous: Yes. Sacchet: So they already accommodated that? AI-Jaff: Yes. Sacchet: By about how much? How much of it? AI-Jaff: They took the entire retaining wall out of the right-of-way. 77 Planning Commission Meeting - December 7, 2004 Sacchet: So it wasn't just moving a couple rocks. This was major, significant. Okay. Thank you. I think that's the only question I have. I have a question for the applicant eventually but I think for staff, that's all I got. Papke: Can I ask one more? Sacchet: Absolutely. Papke: Following up on Commissioner Lillehaug's question, when we state appears in here, how was the calculation of the 8 Y2 foot setback determined? How did we come up with that number? . AI-Jaff: Lori Haak who is our Water Resource Coordinator looked at the elevation, the OHW for Lake Minnewashta which is 944.5. There are a few elevations that are noted on the survey, but we don't, and we have the location ofthe shoreline but that does not mean this is where the OHW is. So based upon that, if this is 944.1, we figured within half a foot or so. It could be. It appears that it is about 8 Y2 feet from the OHW. We are not surveyors. We're not qualified, just so you know that. Keefe: I've just got one more quick question. In regards to, in order to meet the 10 foot setback what would have to happen? Would they have to elevate it higher or would they have to push it back further? Decrease the size of it. AI-Jaff: They would need to locate the OHW on this parcel and then from that point on no structure can be located within that 10 foot setback. Keefe: So it's the distance from where that shoreline back goes? Not any elevation at all. AI-Jaff: No. Keefe: Okay, alright. Slagle: So, I'm sorry, if I can ask this. If I heard you right Sharmeen, you said they would have to locate the OHW. AI-Jaff: Correct. They need to add that on the survey. Sacchet: They would have to actually do the survey. Slagle: So wouldn't it be that we're here to suggest that they get a survey, and that might prove that they are okay. Claybaugh: Except the 350 square feet. 78 Planning Commission Meeting - December 7, 2004 AI-Jaff: Well if you look at the variance, one of the things that they are requesting is that we waive that requirement as well. Slagle: I understand but I mean if that's done then it would almost be like the house that was on West 78th. Have a survey done, it tells us whether we should be here or not. Okay. Sacchet: Any other questions? Thank you. How about the applicant? Do you want to come tell us your story please? Rick Berland: Yes. Good evening. Sacchet: Do you mind pulling the microphone over? Little more. There you go. Rick Berland: Okay, good evening. I'm Rick Berland. I live at 6900 Minnewashta Parkway and the other parcel of our property has been alluded to, but we want to thank the members of the Planning Commission for hearing our case and for staying late to do so. We also want to thank several of our neighbors who've come to support our request. For their patience and for their support and our contractor, our landscape contractor, Garry Jones of Design Acres who is also here. I apologize I can't be as brief as the previous speaker because I have a lot to say. And the first thing I want you to know my fellow citizens is why are we here, as you say after the fact? We did not do this intentionally. We didn't wish to do this. Our landscape contractor did not call the city and ask these questions. He came to the city with a plan showing what we intended to do and asked not only was a permit required, but also were there any restrictions. And we're told no. And so we proceeded then to look in the neighborhood to see what others have done and had done, together with what we wished to do and since the issue of the well is not an issue tonight but it did come up, I'd like you to know that the city itself or within the city there are several walls, retaining walls along Minnewashta Parkway that were built before my time but I understand that they were built when the road was improved, that are closer to the curb than our wall was. But we have attempted throughout to cooperate and to compromise. I'm pleased to hear several of the commissioners use the word compromise throughout this process. We've been unable to do so. We agreed with the forbearance and the help of our contractor to move the wall and change that design, but we have several reasons why we don't think that you should ask us to move our patio and I would like to go into those now. There are several points that we wish to make. First, the citizens of Chanhassen should be able to rely on the consistent interpretation of our ordinances and regulations. There are many issues I could raise there but let me raise specifically the issue of trees. May I ask Sharleen what the date of her aerial survey is? AI-Jaff: I believe it's 2002. Rick Berland: Okay. We purchased this property in September of 2003. I like trees as much as many of the commissioners. If you visited our property and walked through as you did the subdevelopment that it was, you will see that there are many mature trees, both down by the lake on our site and up in our yard where our home is. We preserved all the trees we could. But staff, until this written report came to us in the mail, never brought up the issue of trees. And so there were several others like that, that's one example. I understand that the commission has the right to give variances on the basis of hardship. My wife Judy is here. Our mothers are both living. 79 - Planning Commission Meeting - December 7, 2004 They're both 82. They like to visit us at the lake. They need a safe and stable place to sit. Many of our other relatives are in their 70's and 80's. I myself am 60. And so that's one of our hardships. There are others that I'll elaborate later. I can tell, I've never been to something like this before but just listening to the previous two cases, the commissioners are very thorough in preparing for this meeting so I want to tell you, and I will elaborate in a moment that the date of the city's receipt of our survey, which Sharleen showed you in this report, is very wrong. And it will also state, and I will tell you why in a moment that we believe we're already in compliance with the 10 foot setback requirement and we do however respectfully request a variance from the 250 square foot maximum size. On the subject of consistency, date and trees, the city requested the survey that you saw there. Garry Jones of Design Acres paid for it. He came to the city and asked the staff what was required on that survey. We complied with the city's request to my understanding. If we had been asked to put the ordinary high water level on it, we certainly would have done so. When the surveyor was already there on site, I'm sure it would not have cost us very much to have that added. If we need to pay for him to come back and make a special trip, I'm sure it costs a great deal more. So it's difficult for us as citizens to comply with ordinances and regulations and seemingly reasonable requests when the requests aren't made. I believe it was the responsibility of city staff, and in fairness Sharleen, to my knowledge has never been involved in this so I'm not speaking of her, but we can't know, or at least we should be able to rely on what the city tells us is needed and if we comply, and we did so. That city was hand delivered bl my wife Judy to the city shortly after receiving it. The city, the survey is dated August 25 . Garry brought it to us. She hand delivered it to the city. This would have been in earz September. On page 7 of the staff report it states that the survey is received on October 29 . If I were sitting in your chair and I were reading that, I would think that I dragged my feet and didn't cooperate, but that's far from the truth and I can prove it. We have a voicemail from Ms. Haak. We can play it for you if you wish. It's recorded by the telephone company answering service so it's their date. It's dated September 16th. In that voicemail she stated that our survey had been reviewed. She brought up an irrelevant issue regarding the amount of hard surface, hard pack cover on our primary lot which was already permitted, approved, final inspections, everything done. She stated that the patio is the only remaining issue. She said nothing about trees. And she did not request any additional information, including that we amend our survey with the ordinary high water mark. We still have that voicemail. The date, as I said is supplied by the telephone company, not by us. We can play it for you if you wish. And I will state to you categorically that we removed no trees down by the beach, with the exception of one dead elm. And it had nothing to do with views. It was only to do with, I don't know how to do this. It had to do with the fact that, I remember, and I'm sure most of you do when one was required to remove dead elms and promptly. This was a long dead elm. It's the only tree we took out of there. This is the view that was used in the advertising brochure by Edina Realty, as you can see if you back up a little bit. From our home site down to the lake. We have a terrific view. We didn't need to take out any trees to, trees of our view and we did not take out any trees. So we believe that trees should not even be an issue in this discussion. As I said, we like trees too. On the other hand we spent substantial money doing the improvements we've also done. I don't believe that the city requires us to add trees if we took out none. I assume, I don't know but I assume that 2 Y2 inch diameter trees are fairly expensive. . We really don't wish to spend additional money at this time. In fact we had to spend additional money but for moving the wall because then we had to do plantings to stabilize the hillside. Before we would have had to done so, otherwise so we request that you remove that because we 80 Planning Commission Meeting - December 7, 2004 don't think there's any basis for it at all. With regards to the setback, as I said, if the OHW had been requested, we'd have just done it but we do believe that we comply and I'll tell you the basis. Like the city staff, I'm not a surveyor. I can only give you antidotal basis, but Judy and I are both avid swimmers. We were in that lake virtually every day this summer, and by the way we enjoy the clear, clean water. That's why we're there. We're not, we have no interest in harming Lake Minnewashta. When you're swimming at the end of your swim, because we do as I think you, I don't know if you can see it on the picture but on the survey you can see, we have young grandchildren and we do have a sand beach for entrance and exit from the water for them to play on. But when you're coming out the last time of the day there's some tendency to walk out on the boulders so your feet stay clean, and I would regularly do that. Now when I received this, and with the help and he was very helpful of one of your staff people, Josh, I walked down to the lake and I measured where the actual water level is to the patio right now. This was 2 or 3 days ago. I come up with 13 feet 8 inches. I don't know if we have anything here where you can tell it but there's a fairly dramatic, the boulders are big. So that there's quite an elevation change for the water to actually come up high onto that first row of boulders. I don't recall that it ever did so this summer and I don't believe it did, and I have some information here for you that I have to find. This report is printed from the internet and it shows that the ordinary high water mark on Lake Minnewashta is 944.5 as was reported earlier. Here is just a blow-up of this chart which shows the actual water level over a several year period, including this year and perhaps it'd be best if I pass this around. Sacchet: Sure. Rick Berland: You will see that this year, in 2004 summer, that the actual water level exceeded fairly dramatically the ordinary high water level. And yet as a swimmer who walked out of that lake, I will testify that the water never, to my best recollection, got anywhere near high enough to be within 10 feet of our patio. Mr. Jones will tell you later the results of a survey that he did, and where his measurement placed the ordinary high water level, and how far he believes we are from it. We are in violation of the area. Again, we didn't know there was any area requirement. It's pretty small violation from my perspective at least. I measure the diameter at 19 foot 9, which is just over 306 square feet in area. I think that's pretty close to what Sharleen said tonight, although I think it's a bit different by about, I don't remember how many feet from what's in the report that you received. We again request that that variance be granted so that we can leave our patio as it is. As you can see from both the photo, there's not a lot of room there for us to go back. That well was built to preserve that beautiful ash tree that you see there. So it takes away our room, and before we had this patio, we really, there was really no place down there where there was a level, stable place to put any furniture for the older visitors who come and for the rest of us who enjoy using the patio too. You'll notice the fire pit, just as while we're on it. I mean I think we did everything in very high quality. Those are pavers. They're designed to be permeable and stable. There was a report on TV that Judy happened to see this summer where someone from the Arboretum was recommending that people use pavers because they do allow percolation and prevent runoff over say concrete for example. Hardships, I mean the staff report seems to indicate that hardships are of our own making. We're very grateful that our mothers are healthy and able at the age of 82, but we take no credit for it. We need a safe and stable place for them and others to sit. Also I believe from listening to you tonight that you do have sensitivity to the issue of cost. We spent a lot of money to do this. Our landscaper is, in 81 Planning Commission Meeting - December 7, 2004 my experience a very good person. He spent a lot of his own money to change that wall, and it's expensive to do these things. And it may be that tearing up some of it and exposing the ground again and waiting for sod to take is more harmful to the lake than leaving things as they already are. In summary we believe we have the hardships necessary for a variance to be granted. Again we're sorry that we're here after the fact. If the commission is able to take context into consideration, we believe that if you have seen the property both before and after we did our work that you would be pleased with what you see. In our application we detailed some of the improvements we made and much of the various trash and hazardous materials that we hauled out of there, cleaning up that area. We thank you for your kind attention. Many of our neighbors have complimented us for our work. Passing by on the water or on the land. Our immediate neighbors have all written letters of support and again I thank you. Thank you for staying and thank you for your attention and we'd be pleased to answer any questions. Sacchet: Thank you very much. Do we have questions? Yes Kurt. Papke: You've made several mentions to some boulders along the shoreline from which you've measured the setback. Were those boulders put in as part of this landscaping project or were they pre-existing? Rich Berland: Yes sir. We did improve the rip rap. The rip rap was eroding and there were frost heaves in it. There were boulders falling out. We took out the old rip rap and we put in all of the boulders along the shore. Papke: So is it possible that as a result of putting these boulders in the water line moved out as a result? Without the boulders there, you're going to measure the shoreline at a slightly different spot, yes or no? Garry Jones: No, because actually when, on your high water mark, when you measure that you've got to follow that all the way back to the actual, to where it's going to be, so no matter where the boulders are. Papke: Okay, so the boulders are inconsequential to the calculation. Garry Jones: Right, correct. Papke: Okay. Sacchet: Any other questions? I do have a question for you. You are Garry Jones right? Garry Jones: Correct. Sacchet: And you brought these plans to the city. Garry Jones: Correct. Sacchet: And that was somewhere in August I presume. Or summer. 82 Planning Commission Meeting - December 7, 2004 Rick Berland: Mayor June. Garry Jones: Yeah, it was earlier in the summer. Sacchet: Okay. Do you remember who looked at it? Garry Jones: No I don't. I brought them in and just laid them out in front of, on the table there and I said is there any permits or any requirements that I need. And you know, just to take a look at that and see if there's anything that I need to follow. Sacchet: You routinely do that or? Garry Jones: Pardon me? Sacchet: You routinely do that? Garry Jones: Yes. Sacchet: Just to make sure everything is cool. Garry Jones: Yep, and then like she said, or actually it was a man. He had said no, there's no problems with this and so, and being that we're not licensed, there's no stamp or approval or anything. Sacchet: There's nothing official to it. Garry Jones: Right, so it's just kind of, so then we just kind of go with it from that point. Sacchet: Okay. Okay, that's all the questions I have. Thank you. This is a public hearing. Did you want to add anything sir? Rick Berland: Thank you again. Sacchet: Thank you. This is a public hearing so anybody who wants to come up and speak up to this issue, please do so now. Dave Headla: Okay. I'm Dave Headla. I live at 6870, I'm sorry. Chairman, commissioners and planning group. I'm Dave Headla. I live at 6870 Minnewashta Parkway, just two houses north of the, Rick's. Sacchet: And Dave by the way has been a member of the Planning Commission in the past. Dave Headla: Pardon? Sacchet: You've been part of the Planning Commission in the past haven't you? 83 - Planning Commission Meeting - December 7, 2004 Dave Headla: Yes, and it's interesting to. Sacchet: Want everybody to know that. Dave Headla: Hear you talk. I appreciate the way, the questions that you've asked. They've been good. Sacchet: Thank you. Dave Headla; I, well first of all, I don't know Rick. You know people in their 70's aren't all, need a lot of help. Rick Berland: But notice I didn't use you. Dave Headla: I strongly disagree that any trees were removed. I've lived out there just about 45 years now and if you look at the picture that was shown, I think that can be explained. That's a plan view. You're looking down. There's a lot of foliage on the trees that were lost. One was a huge limb that came off the willow tree and then any trimming would make it look like trees were removed, but they were not removed. I know the trees along the parkway. Maybe some brush was. I wish that you people could see what that property looked like before the Berland's came in. The ice tend to raise havoc with the shore and it raised havoc with my shore, and when they came in, they put in this rip rap. They greatly improved the lakeshore. The ice cannot tear away at the shore any more. The big boulders they put in, and the angle they put them in, I think that's really significant. It also helped for the power boats. Our shore takes a terrible beating from the power boats. Our place, we're on the west side of the lake and with prevailing westerlies, our lakeshore is, and the lake, it's pretty calm most the time. Particularly bare footers. They like to come roaring through there, and there's a lot of wave action. What they've done with that rip rap is going to minimize the wearing away of the lakeshore. As far as the actual location of where they had the fire pit, I walked down this morning to, so I could better understand what they were dealing with. I think, well between the rip rap and that stone wall behind them, it's, I don't know, 16-20 feet. Something like that. And it's strictly an estimate. I think they tucked that fire pit back in against the wall as far as practical. I think they used good judgment and so I don't see where they had an option there. Yeah, maybe they could remove a full paver. A few pavers to comply but that would be... And then another point, I don't know how valid that high water mark is. I've lived here a long time. Living on Minnewashta 45 years. I've never seen the lake come up anywhere close to that high water mark, and you can judge how high the water is by looking at Minnewashta Creek and the flowage that you have. And this year, when we had the rains there in '87 I think it is when we had that one foot rise in Minnetonka. The lake didn't come up that far, and by the time the drainage area started to come into the lake, the Minnewashta Creek had dumped that water, so I, I don't think that's really a valid thing to reject the permit. And finally both my wife and I really feel they've been a good steward of the land there and we'd recommend approval of the variance. Sacchet: Thanks Dave. Appreciate it. Anybody else want to address this? Please do so now. 84 Planning Commission Meeting - December 7, 2004 Sharon Morgan: Good evening. My name is Sharon Morgan and I actually, I live inbetween the two of them. My house faces the other way. I have 3920 White Oak Lane and I own Outlot A right next to Rick and Judy. We've been there for the last 3 years. Not as long as Dave has, but we watched the whole progress of the work being done at the beach and you know I can vouch for them. No trees were ever taken. I have 3 kids. We're down there watching all the construction going on and no trees were ever taken. Maybe some brush was cleared out but no trees were taken out of there. They did lose a big limb off the willow but that was due to a storm and they got that cleaned up so maybe that's why the aerial picture looks a little bit different. Also, before they moved in there were tires in the water. There were iron rods in the water. There were old bar-be-ques over in the brush area, and it was completely dirty down there. There was old cans, garbage, and they did a tremendous job in cleaning all that up, so I think what they did really improved you know whatever, what runoff was going into the water there with all the debris and everything that was laying around there. And they have, they have done nothing but try to follow the city's guidelines after they found out about this moving that wall and I think they've done nothing but good down there and I really think the shoreline down there looks really good and that they've done a great job. And so I'd recommend that they have this variance approved. Sacchet: Thank you. Anybody else? Yes sir. Chris Knox: Hi, my name's Chris Knox. These guys don't even know who I am. I actually live on Minnewashta Parkway just up the street and I just was here tonight for another reason, just to observe but I happened to see them on my list and I can vouch for the fact that actually they have a very beautiful home. They replaced a real eyesore next to the park there, and they've done a beautiful job on the, and so has the landscape person, on the shoreline. We have a shared beach where I am and I think what they've done is a beautiful thing. I, as a Lake Minnewashta resident and their neighbor have no problem. I think the wisdom behind the table there which say that the circumstances here, I would just say again as an ad hoc comment here is that I would think that you would want to make a, approve their variance and let them have their beautiful spot. It adds to the neighborhood and I as a neighbor am glad they're there. Thank you. Sacchet: Thank you sir. Anybody else? Please come forward. Jerry Paulsen: I'm Jerry Paulsen, 7305 Laredo Drive. Sacchet: Hi Jerry. Jerry Paulsen: Ijust picked up this report today so I'm basing my comments on general feeling. Not to minimize the, apparently you've made improvements to this property that are good. The fact is the city, the staff report recommends that you do not approve this because the findings show that they fail on 5 out of 6 of the findings to qualify for the variance as listed on page 6. They only qualify on the sixth one. I can see where, I think the burden of proof is still on the applicant to prove that they're complying with city ordinance and the old diché of ignorance of law is no excuse. They didn't perhaps explore in enough detail to find out explicitly what was required in line with the, before they went ahead with this improvement before realizing they were not in compliance. The current water line is really irrelevant to the ordinary high watert 85 Planning Commission Meeting - December 7, 2004 line. That's fixed by the DNR and doesn't change over many years obviously. I assume they got approval from the DNR to put rip rap on the lakeshore because the DNR would probably require that. So I don't think it'd be a hardship for them to modify their size of the deck slightly and not having old people falloff the edge there I don't think, but I think the burden of proof is to show that they do meet this setback from the ordinary high water line. Thank you. Sacchet: Thanks Jerry. Anybody else wants to address this? Seeing nobody. Oops, there is somebody. Janet Paulsen: Janet Paulsen, 7305 Laredo Drive. As a person who can see a lake but doesn't live on a lake I know that everybody who lives on a lake would like to have a fire pit and a patio down by the lake. It's just natural. However the ordinary high water line is crucial. This is what we base our code on. We have to know the ordinary water line and we have to obey that. The state requires that. Our city requires that and adding anything to the water requires a permit from the DNR. Thank you. Sacchet: Thank you Janet. Alright, anybody jumping up? No. Yes, go ahead. You can certainly add something to this Garry. Garry Jones: Yes. Again, Garry Jones with Design Acres and on the issue with adding stuff to the shoreline. There was a permit that was pulled. Sacchet: So you did have that permit. Garry Jones: Yeah. For the DNR for everything with the watershed. That was. Sacchet: So you're all clear on that one. Garry Jones: Yes. Sacchet: That's good to know. Excellent comment. Thank you. Appreciate it. Rick Berland: Could you tell them about your survey that you did? Garry Jones: Oh yeah. Sacchet: One more thing? Go ahead. Garry Jones: In regards to the high water mark, I shot it off the manhole cover which was, which is the hub to find the high water mark. And right now where I shot it, it's 10 feet 9 inches from the overhead. The high water mark, the OHW. So from the edge of the patio to the OHW is 10 feet 9 inches is what I've got. So which does comply with the net 10 feet. Sacchet: Okay, so we have a pretty good likeliness that we are in compliance with that. Okay. Alright, with that I do close the public hearing. Assume everybody's done their piece and bring it back to commissioners. Are we still awake? Rich, wake up. 86 Planning Commission Meeting - December 7, 2004 Slagle: I'm awake. Sacchet: Alright. Comments, discussion. What are we going to do with this? Papke: I'll start. When I read through this, this variance tonight, if you remember a week ago I made a comment to another after the fact variance request that we'd seen too many ofthese and we're establishing a bad precedent. And in preparation for tonight I steel myself to come in and make a firm stance and say, this is it. You know I'm going to vote on, and vote down every single one of these until we you know, until we deny one of these permits. But I think there's, what the applicant has done is in very, has been very respectful of the lake and the water quality and I think at the end of the day that's what all these ordinances are all about. I think there's been good testimonial here from the neighbors that this project is very desired by the local residents and I think we should just let it go. Sacchet: Alright, one comment. Any other ones? Tjornhom: I have a comment about this, last week's also. There's kind of a pattern developing where people, and this has nothing to do with Sharmeen or any of, this is just the city offices in general I'm starting to wonder about because we see this time and time again where people have tried to come in and do the right thing and they've complied with what their stamp says they can do, and then all of a sudden the rules have all changed on them or you know there's something wrong, and my whole thing is if I'm a citizen coming in and I'm wanting to pull a permit for something, I don't know all those questions to ask. I can't read minds and I don't know, I'm just an ordinary citizen wanting to put in a patio you know, and Ijust have to trust that the person I'm talking to is knowledgeable and is giving me all the information I need to, so I can invest in my property and do something nice. And so I think the applicant tried to do that again and somehow it fell through the cracks or something, and so I am, I approve their variance. I just, I think, I don't believe they cut trees down and I think they tried to be good citizens and... Sacchet: Thanks Bethany. Anyone else? Claybaugh: I think with respect to issues like this, we have an internal problem within the city. We've discussed this before. I know you don't want to hear it but there is, anyway. With respect to the zoning compliance that you now put in place, that was our reaction to it. We've discussed that in depth. I sincerely think that that will have a profound effect in the future so we're not put in this situation hopefully once that... to ever again. One thing I haven't understood about the City of Chanhassen, a lot of the other cities that I go to, to pull permits for zoning, so on and so forth, they have handouts there. They're standard handouts. Come in. You say this is what I'm doing. They say hey, here's the handout for it. Explains the things that people need to be put on notice about. It's very simple to do and people, you're going to get much better compliance doing it. Hoping it's something that they do in conjunction with this zoning compliance review. That's a very simple process. In the absence of some evidence that these people have been in before had been put on notice and then decided to disregard what information was told to them, and we've come down on the side of the resident. And certainly it sounds like this resident did their due diligence and I agree with fellow commissioners that 87 Planning Commission Meeting - December 7, 2004 people that don't operate and function in that area, they don't know what they don't know. And when you come to the city and rely upon it, they rely upon that information. And I myself have been in situations coming into cities to pull information and a person's busy on a particular day and you're requesting something fairly benign compared to the other things that they have in front of them, and it's no problem. And this could have certainly fallen into that category. Your staff is certainly over worked and I guess with that, bottom line is I'm prepared to support the variance based on the testimony here tonight and nothing to add. Sacchet: Thanks Craig. Anybodyelse? Dan? Rich? Steve? Lillehaug: It's reasonable. Sacchet: It's reasonable. You know, an after the fact variance is bad news but an after the fact requirement is even worst. Now if we go by like we've heard by some of the residents, if we go by the rules that are given to us. The hardship, the self created precedent. All these things. It doesn't look good if you look at what staff put together. But I think there's an over riding factor. What the fork in the road is, we have the applicant here. We have the person that came to the city here that, and we see the applicant did quite a bit in terms of moving a whole boulder wall to accommodate requirements. Now they're here for an after the fact requirement, are we going to hit them with an after the fact requirement to the after the fact? I mean it's kind of ludicrous doesn't it, so I think that over rides the rationale of, I mean it doesn't enter into the framework that the variance procedure is set up with. Because they did come to the city. It's tricky. I mean we literally get one of these about every meeting at this point. We've probably got about 3. You're about the third or the fourth one in the row that comes in like that, and each time we struggle with this and say, well. At some point we're going to have to put our foot down. I mean anybody can come in here and say well we talked to the city. But as long as it's realistic, I mean we should not punish the owners. I mean it's.. .as I think it is so, plus in addition to unanimous support of the neighbors, that weighs in tremendously when it comes to variances so I'm prepared to let this go through. Not only that, with the testament we heard about the trees, I think it's not reasonable to have the tree requirement attached to it because we have very well corroborated evidence that there was no tree cutting except a dead one. That's my comments, so I'd like to ask for a motion. Papke: I make a motion that we approve Variance number 04-42 for a 1.5 foot variance from the 10 foot ordinary high water level setback for a water oriented accessory structure, a 60 foot square foot variance from the 250 square foot maximum area of a water oriented access structure and relief from the requirement of the OHW on the survey for a water oriented accessory structure. It's getting late at night to be saying this. Patio that has been constructed with no conditions. Lillehaug: Second. Papke moved, Lillehaug seconded that the Planning Commission approve Variance #04-42 for a 1.5 foot variance from the 10 foot Ordinary Highway Water Level (OHW) setback for a water oriented accessory structure, a 64 square foot variance from the 250 square foot maximum area of a water oriented accessory structure and relief from the requirement of 88 Planning Commission Meeting - December 7, 2004 the OHW on the survey for a water oriented accessory structure (patio) that has been constructed. All voted in favor and the motion carried unanimously with a vote of 7 to O. APPROV AL OF MINUTES: Commissioner Tjornhom noted the Minutes of the Planning Commission meeting dated November 16,2004 as presented. Chairman Sacchet adjourned the Planning Commission meeting at 11:10 p.m. Submitted by Kate Aanenson Community Development Director Prepared by Nann Opheim 89