PC Minutes 11-16-04
Planning Commission Meeting - November 16, 2004
f
I
~
þ
~
19. Access to all three lots shall be limited to the private street. Direct access is prohibited
off of Pleasant View Road.
20. That all construction parking will be required to be off road.
All voted in favor and the motion carried unanimously with a vote of 6 to o.
PUBLIC HEARING:
REQUEST FOR AN AFTER THE FACT VARIANCE FOR THE INTENSIFICATION
OF A LEGAL NON-CONFORMING STRUCTURE BY BUILDING A CANOPY WITH
FOOTINGS WITHIN THE FRONT YARD SETBACK ON PROPERTY ZONED
RESIDENTIAL SINGLE FAMILY (&SF) LOCATED AT 222 WEST 78TH STREET.
THOMAS WILDER. PLANNING CASE NO. 04-39.
Sharmeen AI-Jaff presented the staff report on this item.
Sacchet: Questions from staff.
Lillehaug: I have a couple.
Sacchet: Go ahead.
Lillehaug: You said denial right? Because this says approval. So you're recommending denial.
Sacchet: It says both Steve.
Aanenson: It says both. We have conditions for both.
Lillehaug: On the front page it says denial I thought, or approval. Anyways, it's denial.
Tjornhom: You're right, it does say that.
Sacchet: Okay.
Lillehaug: Has staff spoken with the city attorney on the liability the City takes with having a
residential structure on it's city right-of-way? Typically I guess I've seen where, you know with
personal property on city right-of-way, the city requires an agreement indemnifying them of any
liability, etc on this. So what is our attorney saying?
Saam: Typically we handle cases like this, or if residents have structures in easements, right-of-
way, with encroachment agreements. Basically, then that gets recorded with the property so then
it's just laid out that while the city's allowing you to encroach into our right-of-way easement,
what have you, we as the city are not responsible for maintenance, that sort of thing. So the
encroachment agreement is the short answer. That's our solution.
Lillehaug: Is that a typical agreement though on an actual residential structure? I mean I've
seen them for walls, retaining walls, fences but on an actual residential structure out in the right-
of-way?
43
Planning Commission Meeting - November 16,2004
Saam: Yeah, I guess I haven't seen one for maybe a residential structure but I know we've done
them for parking lots, for corners of commercial buildings. I've done one on the, and that's
similar to this so.
Sacchet: Okay?
Lillehaug: Yeah.
Sacchet: Any other questions?
Keefe: I've got a couple. The stoop was there. It's been in the right-of-way for a long time I'm
assuming. Is that right?
AI-Jaff: That's correct.
Keefe: Yeah, and so this is what, an intensification is that what you said?
AI-Jaff: Correct. And actually the footings actually extend beyond, or the stoop or the steps are
right here and then if you look at the footings, they extend further into the right-of-way. So it is
an intensification and then you've added this portion.
Keefe: And the additional intensification from a, is what a foot closer into the, or is it?
AI-Jaff: Probably less than that.
Keefe: Little bit less that a foot. Okay.
AI-Jaff: 6 inches to be exact.
Keefe: You know I was just looking at the letter I think that, I don't know if it was the applicant
or the owners and just can you speak to the question of the approved drawing that he says he
submitted complete with frost footings. Can you give me a sense on what you know about that?
And because at least my conclusion just from reading it, and I guess we can probably hear from
him shortly, or her shortly, you know it's sort of like well, maybe he thought that it was
approved because the drawing was approved. Can you speak to that at all?
Sacchet: Actually Dan, I have a short cut to that. If I may jump in. You mentioned that the
application was received on June 22nd. The application has a stamp on it that says approved June
25th. I assume that's approved by the city.
AI-Jaff: That's correct.
Sacchet: But then it seems like the non-conformance was not found til the inspector found it,
which is dated August 3rd or 4th. Is that accurate? So it was approved but without a plat, as you
described.
AI-Jaff: Correct, then.
44
Planning Commission Meeting - November 16,2004
Sacchet: And then the non-conformance was actually found after the fact on August 3rd.
AI-Jaff: That's correct.
Sacchet: I think that should shed some light on what you're actually asking about here.
Keefe: Well a little bit. I'm trying to understand, it sounded like the original plan was one that
had a different roof line. The one that was approved, and at least from what I'm reading here is
that, is that correct?
Sacchet: Not sure about that.
Keefe: I'm just trying to understand because at least what he says, it should be noted that my
permit was approved with the drawing of the roof over the existing, the roof over the existing...
Aanenson: Let me just give some clarity again to this. This came in in a sequence of different
applications. So the siding, when it's a normal siding, the Planning Commission, the planning
staff doesn't look at it. Otherwise planning staff reviews all permits for setback. It was a survey
that the inspectors look at. Not even a specific...
Sacchet: So it didn't come to planning.
Aanenson: No, it didn't come to planning.
Sacchet: It didn't come to planning yeah, because it's just.
Aanenson: Right, so when the inspector caught it and said I should let someone in planning
know, so it didn't come through the normal route because it was for a siding permit. And the
inspector noted the permits, if you look on the notes, he said you're proceeding because I don't
think the planning would approve something like this so that's where the dialogue started.
Sacchet: Okay, but at that time it was already built to some extent.
Aanenson: The footings were in. The roof wasn't on yet. The siding wasn't all the way on the
roof or the shingles weren't on the roof...
Keefe: So the footings for the structure which has been built were put in?
Aanenson: That's when the inspector I believe is at the time the inspector found it so the
footings were out past the stoop.
Keefe: Okay, and that's when the inspector said it needs to go...
Aanenson: Right, because generally for a siding doesn't always go to the planning department.
Keefe: And then after that, that note was made, then the remaining structure was built?
45
-
Planning Commission Meeting - Novembe~ 16, 2004
Aanenson: Correct.
Keefe: Is that sort of the sequence?
Aanenson: That's our story.
Keefe: Alright, thanks.
Sacchet: Okay. Any other questions? Kurt.
Papke: Yeah. If the Planning Commission were to deny the variance, what would be the next
step? What would be the options open to the applicant? At that point.
AI-Jaff: They would have to remove the addition.
Papke: The entire addition?
AI-Jaff: You can appeal your decision to the City Council. Should that fail, then he would have
to remove.
Papke: The entire addition?
Aanenson: You can modify anything within it. Whatever you would recommend. So that's up
to you.
Papke: Okay.
Sacchet: Any other questions? I think I had one more. Oh yes, I had another question. There's
another house that's very close to the road. It's the one on the corner ofProntier and 78th. Do
we know how close that is? Because it seemed, yeah I don't think it made that drawing. I think
just slightly west from that. What we see on here. Actually it would be the next lot to the west.
Then it seems like that one has at least a stairway or something going into the right-of-way.
AI-Jaff: We looked at the area and it appeared that this was the only one that actually
encroached into that required.
Sacchet: Okay, that answers the question.
AI-Jaff: Into the right-of-way.
Sacchet: Thank you. With that, do we have an applicant?
Tom Wilder: Yes.
Sacchet: Please. It's your turn. State your name and address for the record and tell us your
story please.
46
Planning Commission Meeting - November 16, 2004
Tom Wilder: Tom Wilder, 21740 Lilac Lane, which is the county line actually of Shorewood.
That's where I live. I own the property 222 West 78th Street and appreciate being able to come
out and tell my side of the story tonight. I bought the house April 28th. 1898. You know all that
part. The house did need extensive remodeling and that, I applied for all the permits. Everything
is new, you know. Electrical, from the street in. Had the service, you know plumbing,
everything is absolutely brand new. And applied for all the permits in proper order I might add.
What is incorrect in staff's report, respectfully, is the time line. Submitted my drawings June
22nd. Had them approved and paid for the permit June 25th. And the first thing they did was
build the canopy. The last thing we did was set it on the footings. It was on a temporary framing
and the footing tubes were in. Concrete's on the way. Doug comes out and says, hey this is too
close to the sidewalk. I said the whole house is too close to the sidewalk, and I'm just covering
up the existing stoop. There's a lot of traffic on that sidewalk. It's good traffic, you know
bicycles, skateboards, kids, parents, people taking walks. And I've got the situation of the
canopy on temporary framing. Do I pour or don't I pour? I wasn't about to leave the canopy on
the temporary framing, completely built. 100 percent built. Shingled. The whole thing. In fact
maybe not shingled but I think it was shingled by that point. I can check. But 100 percent built.
We poured the footings. We put in the posts and made a much safer structure. I might add we
made the entire house, in my opinion, prior to me buying it was an eye sore. It'd been a rental
property for 50 years. It was shot and now it's been put back together. I consider it a gateway
house. 1898. I consider it a nice welcoming structure to Chanhassen. So I want to make that
clear. The canopy was built, we dug some holes. You guys came out said, don't proceed, and
then we built the rest of it. That's not what happened, and you can confirm that with Doug. I
don't, I disagree that the structure encroaches any more than the existing stoop. If you look on
the permit that was approved on June 25th, you'll note, should I put this under the camera.
Sacchet: We've got it in front of us.
Tom Wilder: Okay. I'm not sure if the pages are numbered. But it's the one, received June
22nd. Second level floor structure. With the specific note, install 6 by 6 posts. Check
foundation. Add footings if necessary. That was check the foundation of the stoop. See if the
stoop had footings. Building department said if the stoop doesn't have footings, just drop them
right in front, which is exactly what I did. We're talking about 6 inches, and I'm not, you know I
know there are rules. I might also.
Sacchet: So it's half a foot Dan.
Tom Wilder: So we're talking about half a foot is what we're talking about. We're also talking
about making an existing stoop, whether it's in the right-of-way or not or whether it's on my lot
or not, I'm not sure but I think I'm about 99 percent sure it's not even on the lot line, and I'll tell
you why, but it would involve removing your added for sale, the address over the political sign.
There's something that needs to be seen, and that's the survey that was done next door. If you'll
note the post in front of the Y and the M in that name.
Sacchet: The wood post there, yeah.
Tom Wilder: That is the, you know RLS survey of my next door neighbor, which is about 8
inches off the sidewalk. And I'm assuming my lot line is probably continues right down the
sidewalk. You know I'm assuming my lot line is about 8 inches off the sidewalk towards my
47
Planning Commission Meeting - November 16,2004
house as well, so you know I don't know who's right or who's wrong. I'm not sure. I do know a
survey will add another $2,000 to my permit because I did some checking today. So I'm not real
excited about that. If that's what it takes, I'm willing to do that. I would like to leave it just with
the encroachment agreement myself. Might also add you know, I've worked with the city every
step of the way on this house. Tore out 4 layers of roof. Added completely new sheathing. It
wasn't insulated. It's fully insulated to code now. There were two chimneys. The city made we
hire a structural engineer to come out, and you might, you know that was money to approve the
chimneys. That they weren't going to fall over. I had to reinforce them with steel. I mean as far
as I'm concerned this is not a paint and wallpaper job. I have a lot of money tied up in this place
so, and I'm willing to, you know it's going to be first class but to tear off the canopy would
really be a major, major setback for me, and I think be a setback for the community. That's all I
have.
Sacchet: Thank you. Any questions from the applicant? Steve.
Lillehaug: I have a couple. When you say existing, what do you mean by existing? Was it
existing prior to you buying the house?
Tom Wilder: The stoop?
Lillehaug: Yep.
Tom Wilder: Yes. The stoop's been there, it's my understanding the stoop's been there for
decades. Now that might be an exaggeration. The concrete, if you go out and look at it is pretty
pitted. And I'm planning on.
Sacchet: It's pretty beat up.
Tom Wilder: What's that?
Sacchet: It's pretty beat up.
Tom Wilder: It's pretty beat up. And I'm planning on putting cobblestones over it. Make it
look nice.
Lillehaug: Okay.
Sacchet: Any other questions? Thank you very much.
Tom Wilder: You're welcome.
Sacchet: Now this is a public hearing. I open the public hearing. I don't see anybody standing
up. I close the public hearing. Anyobjections? No. Alright, back to commission. Comments,
discussion. Does it need it?
Slagle: I've just got one and that is, I think anytime one would embark on something like this, a
survey certainly would be prudent.
48
Planning Commission Meeting - November 16,2004
Tom Wilder: Should I come back up?
Slagle: No, that's okay.
Tom Wilder: Okay, I did, there was a survey by the way. It's just old. 100 years.
Aanenson: It wasn't an as built survey. It was 100 year old survey.
Slagle: I understand.
Tom Wilder: Well, you know measuring tapes I think were...
Slagle: But the one thing I would throw out to my fellow commissioners, I think I would like to
see the results of a current survey because that might make this situation a non-issue. And I
think that would be in your best interest as well.
Sacchet: Any other comments? Steve.
Lillehaug: My comment is I do not support him improving anything that's in the city right-of-
way and I would recommend tabling this to give him an opportunity to perform a survey so he
doesn't have to re-apply for a variance because he's probably going to need, still need a variance
so I would support probably tabling this. Am I kind of on the right tune here?
Sacchet: Well, you know what seems to be the one thing that is significant to me in this whole
trail here is the dates. I mean we have the dates right here. This plan was drawn up on the 1 st of
June. It was received by the city on the 22nd of June. It was approved by the city on the 25th of
June, and then they built. Now exactly where exactly the state was in, it was, it certainly in an
advanced state when on August 3rd the inspector found that there might be an issue. So I have a
hard time going back with that. I mean I think the city procedures obviously did not require that
sort of planning, so it kind of slipped through there. To go there after the fact and consider the
possibility, if I'm to tear this stoop down, I think is not fair. I really don't think it's fair. If we
would look at that from the beginning, I would think it was the balance thing would be to maybe
make the canopy a little smaller. I don't think it would necessarily have to be quite as big. If it's
really as big as the stoop. Now, are we going to raise an issue over 6 inches? I really don't think
that makes sense personally. Kurt.
Papke: Yeah, just one comment. This is the second Planning Commission in a row where we
have a situation where someone has come in with a variance for something that was either
partially or completely constructed. The previous one was a garage footings and so on. In a
bluff area.
Sacchet: Grading.
Papke: And with all due respect to what you said about the drawing here, the drawing doesn't
show any setbacks. There was, unless I'm missing something, I don't know that there was
anything to indicate that there was any issue with setbacks here. So unless one had you know the
intuitive knowledge by looking at the address to say geez, I know the houses on that street are
built awfully close to the street, maybe we should look at that. You know I don't think there was
49
Planning Commission Meeting - November 16, 2004
anything to indicate that there was any issues with setback here or anything that would indicate
that this permit should be denied. So perhaps the issue is you know, do we require people to
show, you know bring in a plat drawing so that there's something to indicate where these issues
come up, or something. What I'm concerned with as a planning commission is our actions speak
a lot louder than any words, and if every time one of these comes in, what we're sending the
signal to the community is that if you just quick get it in and get it constructed, you're good to
go. The Planning Commission will just approve it and I have a big issue with that because that
seriously undermines what we're trying to do in this community so. On the other hand, I hear
what you're saying. It's 6 inches. There's no logical reason to deny this, but there's also the
issue of the precedence that we're establishing in the community so I have some concerns with
that.
Lillehaug: Can I ask a point of clarification from staff? Is it city policy with building permits to
require a registered survey to be included in a permit, building permit application?
Aanenson: It's really an issue of, you know we've got 2 V2 acre lots. We use some discretion of
where the house sits on the lot and we don't always require. And it's a burden. This is an
existing house. We're thrilled with how the house looks, so the building inspector makes a
decision, just as Kurt laid out. Try to turn around in a couple days. Keep it moving. And it is an
old, old survey. Yeah it was 12 inches but you're right, unless you look at it in detail, when the
inspector got out there and issued the permit, whoops. There's a problem.
Saam: And I'll just add something. We try to take a little bit of judgment and the size of the
improvement, you know really does this require a survey? We go out there a lot of the times to
see the grading extent of it. We try to, like Kate said, if it's not a big improvement, don't burden
people like Mr. Wilder said. A $2,000, $1,000, a grand survey. We try to not burden them. For
sure with every new house, every decent size addition we require it. On this one, you know
we're damned if we do or damned if we don't. And a survey will tell us. It will say whether it's
in the right-of-way, just in the setback, whatever. So looking back on it, for sure we should have
probably required it.
Aanenson: And again looking at it was an exteriorlinterior remodel. There was no addition on it
so it didn't raise a flag.
Papke: Just one thing about the survey that I want to make sure the applicant understands that
this could go one of two ways. I mean the, well a couple different ways. The survey could show
that indeed we have a 6 inch issue or it could show that you know, you have no issue to deal with
but you could end up spending the money for the survey and be right back in the situation where
you're at right now where you know, it's 6 inches or more.
Sacchet: Well if I remember correctly the staff report states on not just the footings. Actually
even part of the stoop or even the entire stoop is in the right-of-way, isn't it?
Aanenson: Correct.
AI-Jaff: According to the as-built survey for West 78th, yes.
Sacchet: So the whole thing is in, so we have the whole stoop potentially in the...
50
Planning Commission Meeting - November 16,2004
Keefe: I've got a question in regards to that. If we were to make him remove the awning, would
we also require him to remove the stoop then?
AI-Jaff: No.
Sacchet: You know to me requiring to remove this thing makes no sense because I think I'd go
one step further. I mean if we would have wanted to dealt with this we'd have to start dealing
with it in the beginning. Now when this thing comes in, they're just looking at it on paper? The
building inspector when he puts his approval stamp on it.
Aanenson: Correct. Again, let me making the discernment to say it's a siding. It didn't appear
to be a lot until he got out there and saw, oh my goodness. This is awfully close and didn't
understand the implication of that because it appeared to be siding and interior remodel.
Tom Wilder: Can I say something?
Sacchet: Sure.
Tom Wilder: Doug.
Aanenson: Can he please come up to the microphone?
Sacchet: Yeah, if you want to come forward. Yeah, the applicant can speak just about any time.
Certainly during deliberation.
Tom Wilder: Bought the house on April 28th. I closed on it about in this being Doug's notes, I
had him out for a preliminary inspection.
Sacchet: So he was actually out there?
Tom Wilder: A few days after closing.
Sacchet: It's not like he's never been there.
Tom Wilder: No. He went through the entire house. He went down to the basement with me.
He did the whole 9 yards in April. Well, maybe May 1st. So he was well, the staff was well
aware of what house we were talking about.
Sacchet: Okay. You see that's where I'm coming from.
Aanenson: Again, the building inspector doesn't always, under that circumstance...
Sacchet: It's not his responsibility in a formal way, right. I understand that. But I do think that
the city bears some responsibility and to go back after the fact and put the whole responsibility
on the applicant just doesn't make sense to me. That's my position.
51
Planning Commission Meeting - November 16, 2004
Lillehaug: Or we could have, I mean staff could have had him perform the survey right up front
rather than after the fact so it's not like he's losing anything. Yeah, they may have made a
mistake but yeah, he should have to have, in my opinion, he should have a registered survey
done on it.
Sacchet: Sorry.
Tom Wilder: ...oh that's alright. Maybe I should just stay here. I'm agreeable to the
recommendations on approval of this variance. And paying for the survey and paying for the
encroachment agreement and paying for the other permits that I've paid for. You know the extra
physical engineer I had, or structural engineer I had out there. I mean I've had, it's been a
unique house. It's been fun. I've enjoyed it. I'd do it again um, but I do feel slighted on the
time line. And the only reason I put those posts up was safety reason. I know it states differently
in the report but I wasn't about to leave that canopy hanging on a couple of 2 by 4's.
Sacchet: We understand that. You want me to address your comment Kurt about the precedent.
I mean yes, we definitely do not want to project the image that something is done and then we
agree, but is this the right case to make an example. I really don't think it is.
Keefe: Yeah, my comment would be in regards to, you know we have to weigh the precedent on
one hand and then we have to weigh all the other information we got which is maybe he's in the
right-of-way, maybe he's not. We've determined that through a survey. He's got the time line I
think is, you know what he's saying is accurate. You know you would think the city might bear
some responsibility. Levels of improvement he's putting into place is pretty terrific so the city's
getting the benefit from that. And it's 6 inches you know, and I mean we're not going to make
him remove the stoop. We would make him remove the awning which is a violation of 6 inches.
I agree with your comment that it's not one to set a precedent on.
Tjornhom: And I think our paper trail does show that he was trying to comply with city
regulations by pulling his permits and going through the inspections. I don't think he was trying
to pull a fast one on anybody or sneak a porch on. I just, I don't think that was the case with the
whole thing and so I would also agree that what's done is done and I think he's done a lovely job
improving the home actually. And so I'd hate to punish him for your good works.
Sacchet: So in terms of the things we have to look at, I mean I would propose that yes, there is a
hardship the stoop, to tear this down. It's a hardship at this point. Which, is it self created?
Well yes he created it but the city helped create it by not catching it earlier. Therefore I consider
it a reasonable request, I mean in terms of putting some foundation under what my position is.
Do we want to venture a motion or is there more discussion?
Keefe: Just one.. . question which is, if we were to approve the variance it says that we need to,
we could have them submit a lot survey by the surveyor. Is that something we would still want
to require?
Sacchet: It wouldn't hurt.
Lillehaug: I would absolutely say yes.
52
Planning Commission Meeting - November 16,2004
Aanenson: I think we need to get an encroachment agreement so we know exactly where it sits
on the property.
Sacchet: In order to make an encroachment agreement we need to know how much is being
encroached I think. In other words it holds no water. Alright. Ready for a motion?
Slagle: So point of clarification. So we're suggesting that, that we're not tabling this upon.
Sacchet: Why would you table Rich?
Slagle: What my thought was, is you would table it to get the survey done and then determine if
we should even be here having this discussion.
Lillehaug: And to add to that, my position is I don't, I would not support any encroachment
agreement for this. Regardless of, and so I would see it mandatory that a survey is done and if it
did show an encroachment, I would not support it. A variance. Myself.
Sacchet: I'd be willing to close it out right now but.
Keefe: So would I.
Tjornhom: I would too.
Sacchet: We need more than 3 or 4. We need 5?
Aanenson: Well it would just move up to City Council.
Sacchet: Okay, okay. Then City Council can look, take another stab at it. I mean since we're
kind of laboring. I mean we have a range of opinions. Maybe that's the solution is that we pass
it on to City Council.
Lillehaug: It's up to you.
Keefe: Is it an issue that we want to pass onto City Council?
Sacchet: I don't.
Keefe: No.
Sacchet: I don't.
Papke: I think I can support this one. I think it needed to be said about the precedence setting
issue but I'm.. . given the situation.
Sacchet: So it comes down to you Rich.
Slagle: Take the vote.
53
Planning Commission Meeting - November 16,2004
Sacchet: Alright. Somebody make the motion please.
Keefe: I'll make a motion. The Planning Commission approves the variance for the
construction of a canopy with footings without any setback and within the right-of-way based on
the findings of fact in the staff report with the following conditions, 1 and 2 I believe.
Sacchet: Yep. We have a motion. Is there a second?
Papke: Second.
Keefe moved, Papke seconded that the Planning Commission approve the variance for the
construction of a canopy with footings without any setback and within the right-of-way
based on the findings of fact in the staff report, and with the following conditions:
1. Submit a lot survey signed by a registered land surveyor. The survey must show the
following:
a. Right-of-way, property and easement lines in relation to the existing structures.
b. Existing sidewalk location.
2. An encroachment agreement will be required if any of the existing structures are
determined to be in the right-'of-way.
All voted in favor, except Lillehaug and Slagle who opposed, and the motion failed with a
vote of 4 to 2.
Sacchet: So we have 1,2,3,4 to 2. That means it goes to City Council, right?
Aanenson: That's correct.
Sacchet: Yep. Thank you very much. Good luck with it.
PUBLIC HEARING:
VILLAGE ON THE PONDS BUILDING C-l. FOOD COOP. REQUEST FOR SITE
PLAN APPROVAL FOR A 18.200 SQUARE FOOT COMMERCIAL BUILDING WITH
VARIANCE TO THE COMMERCIAL DESIGN STANDARDS ON 1.35 ACRES ZONED
PLANNED UNIT DEVELOPMENT LOCATED AT THE SOUTHEAST CORNER OF
LAKE DRIVE AND GREAT PLAINS BOULEVARD. VOP I. LLC. PLANNING CASE
NO. 04-40.
Bob Generous presented the staff report on this item.
Sacchet: Thanks Bob. Who wants to have any questions? Are we still awake enough?
Papke: I'll start. Just a question on fenestration requirement here. Boy, I love to be able to use
that word. On page 6 of the staff report here, just below the table, it states as can be seen by the
table, the percentage of openings and faux windows. By faux you mean fake windows, yes?
Generous: Yes.
54