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CC Minutes 10-12-2015 CHANHASSEN CITY COUNCIL REGULAR MEETING OCTOBER 12, 2015 Mayor Laufenburger called the meeting to order at 7:00 p.m. The meeting was opened with the Pledge to the Flag. COUNCIL MEMBERS PRESENT: Mayor Laufenburger, Councilman McDonald, and Councilwoman Ryan COUNCIL MEMBERS ABSENT: Councilwoman Tjornhom, and Councilman Campion STAFF PRESENT: Todd Gerhardt, Chelsea Petersen, Paul Oehme, Kate Aanenson, Todd Hoffman, Greg Sticha, and Roger Knutson PUBLIC PRESENT: M.P. Knight 3605 Red Cedar Point Road Dave Bishop 3605 Red Cedar Point Road Darin Perry Noodles and Company Katie Connelly Minnetonka Schools Mary Penny Minnetonka Schools Brad Solheim 121 West Main, Waconia Mayor Laufenburger: Thank you and welcome to this council meeting to those of you that are present in the chamber as well as those of you that are watching on cable channel 8 or 107-2 Mediacom at home. Our first agenda item this evening, or let me first speak to the agenda. We have had one tabling. Agenda item G(1) has been tabled from the agenda for tonight and if there are any modifications other than that to the agenda council members. If not then we will proceed with the agenda as printed. PUBLIC ANNOUNCEMENT: Mayor Laufenburger: I do have a public announcement to make tonight. This is October. This is the season of Halloween as we approach it with pumpkins starting to festoon our stoops and our front porches. The City of Chanhassen with the support of our local community event sponsors, many businesses in town is proud to announce the fourth and the final community event in 2015. This is our stth 31 Annual Halloween Party. Join us on Saturday, October 24 for an evening of fun. Children 13 and under are invited to participate. Bring along your parents of course, in a wide variety of activities including trick or treating, hayrides, weather permitting, carnival games and optional spooky room. That sounds scary. Refreshments and a family entertainment magic show featuring Treasure Beyond Measure. I invite all area residents, their families and friends to join me at the Chanhassen Rec Center thrd from 5:30 to 7:30 on Saturday, October 24. Pre-registration is required by Friday the 23 at either City Hall or the Chanhassen Rec Center. The fee is $5 per child. Adults are free and that $5 covers all Chanhassen City Council – October 12, 2015 th Darin Perry: We are shooting for November 16. th Mayor Laufenburger: Write it down folks, November 16. Pre-holiday. Pre-Thanksgiving. For all of th you marathon runners who are going to run on the 17 stop by Noodles Company and carb up, is that right? Darin Perry: Noodle up. Mayor Laufenburger: Noodle up, exactly. Darin Perry: Thank you guys very much. Appreciate it. Mayor Laufenburger: Thank you Darin. Item G(1) under New Business was tabled. We have next item 2 under new business. 3603 RED CEDAR POINT ROAD; LOT 1, BLOCK 4, RED CEDAR POINT LAKE MINNEWASHTA; APPLICANT/OWNER: MACKEY MALIN ARCHITECTS/GREGG & KELLIE GEIGER: REQUEST FOR VARIANCE TO THE SHORELAND PROTECTION SETBACK AND THE 30 FOOT FRONT YARD SETBACK TO CONSTRUCT A DETACHED GARAGE ON PROPERTY ZONED SINGLE FAMILY RESIDENTIAL. Kate Aanenson: Yes Mayor, members of the council. This is actually an appeal of a decision that was made by the Planning Commission so that’s a quasi judicial and then the appeal comes before you as part of the legal process. I also just want to note that a majority would be required on this decision too since there’s only 3 of you here, all 3 would have to vote in the affirmative so you may want to take that into consideration if you wanted to proceed or not. But I’ll begin then with just giving you the th background. This did go to the Planning Commission on September 15. The public hearing was held at that time and I’ll give more detail of that but it was tabled at the request of the applicant to get some additional information that the Planning Commission had directed and some of the comments that were thth raised so it then reappeared on the 15 of, the 15. While the public hearing was held some additional comments were added and I’ll go through those as we move along too. Mayor Laufenburger: Ms. Aanenson can I just. Kate Aanenson: Yes. Mayor Laufenburger: Before you proceed can I just clarify a couple of things? You said that this appeared before the Planning Commission and the Planning Commission gave a decision on September th 15, is that correct? Kate Aanenson: That’s correct. 12 Chanhassen City Council – October 12, 2015 Mayor Laufenburger: Okay, and what was their decision? Kate Aanenson: I’ll go through that. Mayor Laufenburger: Okay. Kate Aanenson: Yep. Mayor Laufenburger: But their decision, their decision essentially granted the variance, is that correct? Kate Aanenson: That’s correct. They granted the variance with conditions, that’s correct. Mayor Laufenburger: Okay. And so under normal circumstances this would not be in front of the City Council. Kate Aanenson: There’s a couple ways it would come before you. If they didn’t have a super majority vote or if any person aggrieved of the decision, whether it was the applicant or somebody else aggrieved of the decision that was made can appeal that decision and because this is quasi judicial then the process would be, it would appear before the City Council. Mayor Laufenburger: Okay, so if it were not for this appeal this decision would be a final decision from the Planning Commission? Kate Aanenson: That’s correct. Mayor Laufenburger: Okay, alright. That’s what I needed clarification. Okay, proceed. Thank you Ms. Aanenson. Kate Aanenson: Okay so the subject site is 3603 Red Cedar Point. You can see it’s surrounded on water on both sides so that is some of the factors coming into play on the variance request. So a little bit st more detail then. The July 21 meeting there was a number of applications, or locations proposed by the applicant of where to put a garage and that’s what the purpose of the variance was to request was for a garage. The staff had always kind of steered towards one. What they believe was the best location as far as the least amount of impact and the applicant originally wanted something a little bit larger and as it moved along it became smaller and moved to the direction that staff had always recommended. So the stth public hearing was held on July 21. On September 15 additional comments were taken but it wasn’t th opened as a public hearing so that decision was made on September 15 to approve it with conditions and here we are with the appeal. So this is the view of the subject site from the east. And from the west. There was an older home that was located on the site and they applicants bought it so the request for the order again is to construct a 2 story attached garage on the property. There is an existing legal non, the structure’s existing non-conformity because of it’s proximity to the lakeshore setback and I’ll go show that a little bit more detail. So the legal non-conformities are, try to show this here. So there’s a 75 foot 13 Chanhassen City Council – October 12, 2015 setback would be on both sides because it’s adjacent to a lake so the Shoreland District says 75 feet. The house is already non-conforming because it sits within that 75 feet. Mayor Laufenburger: But it was built prior to, it was built and in place prior to these setback requirements. Kate Aanenson: Correct. Mayor Laufenburger: Okay. Kate Aanenson: Well it was built with non-complying. Mayor Laufenburger: Okay. Kate Aanenson: So it’s 31 feet setback from this side so instead of putting something on this side of the street staff was always trying to reduce that non-conformity by keeping it on the existing structure so there were some factors that led into the location that staff had recommended which I’ll go through in a little bit. So the other issue is that its 9.8 feet away on the side structure here so the principle structure encroaches 44 feet into the 75 foot setback. This is this area here and then it also encroaches into the front yard setback and that was the other thing that had changed from the original. Back in, the original setback, interpretation of a side yard setback was when, this was all serviced by a private street, was that this was considered the front. That interpretation changed so that was a factor in why this also needed to be the 30 feet because now this is considered the front, not this so that was when the other, some of the surrounding properties came in they only had to meet this side yard and I think that led to some frustration on some of the owners in the area. One of the other factors effecting where you could locate the garage was the fact that there’s an existing sewer and water main in the subject area of locating some additional garage on the side here to stay away from the water line. So in tucking the proposal in here which was the staff’s recommendation you avoid that. So again the application, again the Planning Commission, working with the applicant trying to reduce the size of the garage, the original application, reducing it and tucking it in close to the house itself. The Planning Commission felt like closing in the gap between the existing house and then the garage itself made most sense to tuck into the existing building because you’re still avoiding the 75 foot variance on this side. So you meet all that. You can see this dashed line, it runs flush with that so they meet that 75 so there’s no variance on the other side. I think one of the points that the staff had brought out too, when you live on a lakeshore like this your view shed isn’t the entire peninsula. It’s kind of out your front door and I think that also causes, caused a little bit of frustration for some of the surrounding properties of what exactly the view shed was. So as a regular shaped attached garage a variance needed again from the south and from this side yard. The garage on the neighboring property is on this side also so it’s garage to garage. The hard cover can’t exceed 25 percent. Another reason why the staff supported this so it meets the hard cover, reducing that and no mature trees would be removed which on the other side there was some mature trees so all in all least amount of impact from the staff’s perspective and no vegetation removed. So the applicant did revise their architectural plans to show how they could meet the direction that the Planning Commission had directed and these are those plans so the garage being on the front of the house, kind of mirroring 14 Chanhassen City Council – October 12, 2015 the house on the other side, garage to garage as I stated earlier. So this would be the location for the existing, for the proposed garage. And then you can see the garage on the other side here. The neighboring, the closest neighboring. Mayor Laufenburger: So blue is the neighboring to the west? Kate Aanenson: Yes. Yep. So there you can see the perspective from the other, from the neighboring property. Seeing the garage tucked in here so the view shed again, stating that would be the view shed be 360 degrees? Anybody living on lakeshore, when you’ve got, if you have a water orientated structure, which our ordinance does permit, you would still have some blockage of view shed so that was an issue from some of the neighboring properties with the view shed. So. Mayor Laufenburger: Can you go back just a second while you’re on it? Kate Aanenson: Yep. Mayor Laufenburger: The white marks on the cement, is that anything? Kate Aanenson: I think that was just to represent locations of the garage. Mayor Laufenburger: Okay. Kate Aanenson: So this is the view shed so by not putting a structure across the street, which some of the other properties do have structures across, excuse me across the private drive. So these properties are all serviced by the private drive which is the interpretation when it’s a private drive that the interpretation was made that this does become the front yard setback was, that’s how these are all served. So some of the concerns that were raised at the meeting was the ability to get structures in there. I was just going to read some of the issues that were raised again at the second meeting. These are in your cover memo that went to the, on your cover memo of executive summary. So besides the Findings of Fact these are some of the issues. Maintain the access along Red Cedar Point for safety reasons. Fire. Chief did drive out there and maintaining it. There are some folks that have put boulders out there that those would probably be a bigger impediment than the garage on this. They felt that that would be fine to access the property. Public water viewscapes and I’ve addressed that. Again there are garages across the street on some of these properties so if the viewscape intended to be 180 degrees or is it to be in front and back because again people on the peninsula have views in front and back and the staff’s opinion was that the viewscape here where we add the additional garage is minor as opposed to the rest of the viewscape that was preserved by moving the garage to this location. Again we talked about the encroachment in the front yard, side yard interpretation. That interpretation came up when we had some other private streets and how the setback should be given and we had a legal opinion made by our city attorney that that now is considered that front yard on that setback and that’s how it’s been interpreted since the 1990’s. Originally when the shoreland regs were adopted by the DNR in 1977 that was the setback on the side yard so being held to a different standard here. That’s again why the staff supported because as you can see the other properties have been able to allow that 10 foot setback to come into 15 Chanhassen City Council – October 12, 2015 play. The other one was concerns of the hard surface. Inaccuracy in the survey. Again we believe the survey. Signed by a registered engineer does, or meet those requirements of the under the 25 percent. So taking all those things into consideration and looking at properties within 500 feet with a garage, again there’s some additional testimony. You have the verbatim minutes regarding there was a garage existing already. A new garage shouldn’t be permitted. The applicant giving the information that that garage has sunk. It’s no longer viable as a garage and wanted the opportunity to have the garage. Again staff did, and the Planning Commission did concur with those findings so just showing properties within 500 feet and then showing you the variances that were out here on these properties so a lot of the properties have had variances of different types. You can see them all here. Some of them are shoreland. Some of them are side yard setbacks. Front yard setbacks. But there has been variances out there so with that the Planning Commission did, sorry I left the slide out. Just showing the, which ones are the, do not meet the rear side yards. So I would say pretty much all of them have received variances. So with that information, and the fact that the applicant reduced the size of the garage. Tucked it in tight. Met all the setbacks. The Planning Commission did recommend unanimously to approve the variances subject to the 4 conditions and adopting of the Findings of Fact. So with that you have the complete record in front of you. I’d be happy to answer any questions that you have. Mayor Laufenburger: Alright, thank you Ms. Aanenson. And you stated it very clearly in our electronic packet each of the council members received verbatim minutes from the Planning Commission meeting. All of the documents that were submitted reflecting the actions that took place in July as well as September and obviously we’ve done a lot of reading about this so we’ve heard a lot of the. We’ve read the comments that were made both in favor of and opposed to it. At this time, is there any questions from the council to Ms. Aanenson? Mr. McDonald do you have any questions? Councilman McDonald: Yeah I’ve got a question. Mayor Laufenburger: Okay. Councilman McDonald: And you have to excuse me because I think you already answered this but I’m not clear. Why are we voting on this? It went 5-0 before the Planning Commission. It’s here on appeal. Who’s appealing? Kate Aanenson: Anybody aggrieved of the decision of the Planning Commission has a right to appeal. Whether it’s the applicant or someone else that’s aggrieved of the decision so one of the neighbors is appealing that. Councilman McDonald: Oh okay. Kate Aanenson: Yep. Councilman McDonald: Okay, thank you. 16 Chanhassen City Council – October 12, 2015 Mayor Laufenburger: And just to clarify, if I may Mr. Knutson, City Attorney, I may ask you for your counsel on this but I believe that we as a City Council at this time have 3 options. Number one, we can affirm the Planning Commission by approving the variance as recommended by the staff. That’s number one option. Number two, we can deny the variance. We have that within our power. Is that correct? Roger Knutson: That’s correct. Mayor Laufenburger: Okay. And then thirdly we can modify the recommendation in some form. Roger Knutson: That’s correct as well. Mayor Laufenburger: Alright so those are 3 things that we as a council can do. Either approve it. Deny it or modify it so that’s really our focus at this time. The fact that it’s, the basis by which it’s brought forward for appeal doesn’t really matter. The fact is it was appealed and therefore it’s not our decision. Roger Knutson: That’s correct. Mayor Laufenburger: Okay, thank you Mr. Knutson. Did you have any questions Councilwoman Ryan? Councilwoman Ryan: Just for clarification, and I know it was on some of our packet but I think it’d be helpful to review again because I know the plan went through a number of iterations. On one of the slides, could you just show I think there was like suggestions A through E on the different proposals. Maybe just highlight all the different places it was proposed and how you ended up with, and then I know the Planning Commission also wanted it tucked in closely. Is that something you can do easily? Kate Aanenson: Sure. It’s not on my slides. Councilwoman Ryan: I know you wanted to limit the points of view. Kate Aanenson: So this is the one that went, the second one but this was some of the areas over here so the other side of the house would be, and potentially across the street but this was, so you can see it was significantly larger when it was over here so when they originally proposed that we hadn’t done the, engineering hadn’t done the investigation yet to realize that it was actually over a sewer and water line in that area. Relocating a fire hydrant and the like and engineering had recommended against those locations. And I think the other concern that the Planning Commission had was the size and trying to keep it tucked into the house because now you’re also creating another physical barrier view shed so. Councilwoman Ryan: And so when, and I know that there were those, the Mayor had pointed out those white marks on that one page. So when the, for this final plan for letter E, garage E or plan E, it was after the concern of the view and the proximity to the neighbors that it then got tucked in, is that correct? 17 Chanhassen City Council – October 12, 2015 Kate Aanenson: Correct. Correct. Councilwoman Ryan: Okay. Kate Aanenson: So the Planning Commission directed it to be pulled in as tight as possible and then also take advantage of some of this additional space. There’s some HVAC equipment over there that they would incorporate that all into the structure itself. Councilwoman Ryan: Okay. Mayor Laufenburger: And with that in place Ms. Aanenson, so E was the final agreed upon location. The applicant has agreed to this obviously, right? Kate Aanenson: Correct. Mayor Laufenburger: Okay. And one more thing, is the surface above the water and the sewer main protected? Kate Aanenson: Yes. Mayor Laufenburger: It is. So we’re not going to have a garage on top of either of those? Kate Aanenson: That’s correct. Mayor Laufenburger: Okay. We will have a private drive on top of those. Kate Aanenson: Correct, which is very common. Yeah. Mayor Laufenburger: Alright. Kate Aanenson: I just, if I could. Just to Councilwoman Ryan’s question regarding the garage itself. I want to just make sure that on this drawing here. So again from what the Planning Commission recommended, these are the final drawings based on what they had recommended so those weren’t, the Planning Commission directed them so this would be the ultimate location and size. So what I was showing up there was at that meeting, but they directed further modifications. I just want to make sure that was clear. Councilwoman Ryan: Right, that’s what I remember reading is that they wanted it to be as close to the house as possible. Kate Aanenson: Yes. Councilwoman Ryan: And so these are the final drawings? 18 Chanhassen City Council – October 12, 2015 Kate Aanenson: That’s correct. Councilwoman Ryan: Okay, thank you. Mayor Laufenburger: Ms. Aanenson would you mind advancing the slide to, you had, there were 4 conditions. There. Can you just explain these 4 conditions? Kate Aanenson: Sure. The applicant expand the driveway to maintain at least a 10 foot wide. Again that was the issue that was brought up by some of the neighboring properties, even the one at the very end that would have to drive by. There’s existing narrow road and obviously they have some other service, whether it’s FedEx or something like that that would come, they want to make sure that that 10 foot pavement is maintained. Mayor Laufenburger: So where the garage may encroach into that, where the new garage might encroach into that private drive, they will actually expand the private drive so it’s the full 10 feet, is that correct? Kate Aanenson: That’s correct. That’s correct. And even slightly more than that on the radius coming around so but it would still be under the, the lot would still be under the 25 percent and then the driveway grade also be .5 and not exceed 10 percent. Mayor Laufenburger: And what’s what grade for? Kate Aanenson: Just to make sure that, to get into the driveway. So just so you don’t have too steep a slope and it shouldn’t, it’s relatively flat so it shouldn’t be a problem. Mayor Laufenburger: Okay. Alright. Kate Aanenson: And the proposed structure maintain the existing drainage patterns. Again that should not be an issue. And again the applicant has to apply for a building permit. Again that’s standard. Mayor Laufenburger: And each of these 4 conditions of approval as a result of the Planning Commission approving it, the applicant has agreed to all of this, is that correct? Kate Aanenson: (Yes). Mayor Laufenburger: Okay. Alright. This matter did receive substantial discussion at the Planning Commission and is not subject to a public, a public hearing. However I would ask if the applicant, is the applicant present this evening? Would you like to speak at the podium? Anything you’d like to say. Not required. I’m just making that offer. Gregg Geiger: Good evening. 19 Chanhassen City Council – October 12, 2015 Mayor Laufenburger: State your name and address. Gregg Geiger: My name is Gregg Geiger. I reside at 3603 Red Cedar Point Road. Mayor Laufenburger: Okay. Gregg Geiger: Given this opportunity I’d just like to say we have tried our very best to accommodate the various concerns of our neighbors and the City. The City rules. Your City woman Ryan you ask about the number of proposals that we looked at and we did, we did letter them A through F to kind of keep that numbering alive and to understand that we have looked at a variety. We have done our very best to kind of tuck this into an area that will accommodate and preserve the look and feel of the neighborhood. That’s all I can say I guess. Mayor Laufenburger: Alright, thank you very much Mr. Geiger. Appreciate your comments. And just in the interest of, I’m not sure if it’s fairness or whatever but the, somebody who actually appealed this decision and I would like to give that party, if they’re present this evening an opportunity for a brief statement if you’d like. Approach and identify yourself. Brad Solheim: Good morning, or evening Mr. Mayor and council members. Staff. Everyone. I’m Brad Solheim. I’m an attorney representing the property owners. Mayor Laufenburger: Which property? Nelleke Knight: I’m Nelleke Knight and I live at 3605 Red Cedar Point and I bought a house in 1974. Mayor Laufenburger: Okay so your home is immediately west of the applicant? Nelleke Knight: Yes. Mayor Laufenburger: Is that correct? Nelleke Knight: Yes. Mayor Laufenburger: Alright. Brad Solheim: I would like to start, I’m not positive I’ve been informed by my client that they, Ms. Knight provided an Affidavit to the Planning Commission. Is that in your packet? An Affidavit with photos and stuff like that. I didn’t go through what you got or not. Mayor Laufenburger: I don’t know if it was or not. 20 Chanhassen City Council – October 12, 2015 Brad Solheim: Okay. Well what I’ll do is I’ll submit it on the record and make sure that’s clear. There’s a couple points that I want to make from the Affidavit. One, as Ms. Knight’s indicated she’s lived there for 41 years so she knows more about everything in the neighborhood than everybody else put together. But the, there’s a couple reasons but the main one is that the home was abandoned for a 20 month period of time and I’ll talk about some of that. Mayor Laufenburger: Her home? Her home was abandoned? Brad Solheim: The home next door. Mayor Laufenburger: Okay, so the applicant. Brad Solheim: Unoccupied, right. So what is being asked for you as a City Council is you have an abandoned use for more than 12 months pursuant to the statutes. That you are expanding a non- conforming use. Not just permitting and repairing but you’re expanding the non-conforming use and you have to give a whole series of variances in order to be able to make that accomplished. So you think about that and you just say, why don’t we just blow up the whole zoning ordinance because none of that really, the whole zoning ordinance doesn’t matter? The abandoned use. The non-conforming. The variances. If I can specifically talk about the, oh before I get to that. Something that was not, at least from what I saw wasn’t in the findings or anything like that but the home contained a 2 car garage and the Affidavit contains a photo and is that available for showing? Mayor Laufenburger: When did it contain a 2 car garage? Nelleke Knight: Forever. And it was closed. Mayor Laufenburger: Does it contain a 2 car garage right now? Nelleke Knight. It, yeah the garage is still there but 10 years ago sort of the owners at that time decided they wanted more space in the basement and they closed off the garage and they really didn’t mind parking outside. Kate Aanenson: Mayor if I may? Mayor Laufenburger: Let me stop you just for a second. This discussion was part of our packet. Kate Aanenson: Correct. Mayor Laufenburger: So we’ve already heard this argument. Brad Solheim: Okay, good. Mayor Laufenburger: Okay, yep. 21 Chanhassen City Council – October 12, 2015 Brad Solheim: I wanted to make sure that that was really fair in the record and this photo shows clearly a 2 stall garage that was already there and it certainly isn’t this property owner but I’m sure counsel will indicate that the law does not say you inherit whatever prior owners have done. That’s not an issue that you can’t just say well somebody else changed it so I’m entitled to a, either an expansion of a non- conforming use or a variance. It just, you have to live with whatever anybody else did. It’s not, it’s not fair to keep adding on and changing and those kinds of things so I wanted to make sure that was a major point of what we wanted to do. The second part, to make sure I’m hitting high points is, the variance particularly in the side yard setback is being asked to change, they’ve got, I don’t know what the footage is. 100 feet on the one side. There certainly wouldn’t be any side yard variance or any problem. The whole area is a variance from the lake and we understand that. Mayor Laufenburger: Now just for clarification, you’re referring to the area onto the east of the house, is that correct? Brad Solheim: Yes. Thank you. Mayor Laufenburger: The area where the septic tank was and where the fire hydrant is, is that correct? Brad Solheim: Yes. Mayor Laufenburger: Okay, alright. We also heard that argument Mr. Solheim so the council has that information in that packet so we’re aware of that situation. Okay? Brad Solheim: Okay I wasn’t that part of the Planning Commission. I’ve gone through the findings. Mayor Laufenburger: Yeah, well just as a reminder not only for you but to anybody who’s watching, anything that comes before the council in our packet, it is available for public viewing as soon as that packet is published and that packet is available and it’s accessible through our transparency page on the website so just, not so much for you Mr. Solheim but for anybody who would like to know what it is that we talk about and the information that gets made available to us, it is made available to the public so continue. Brad Solheim: Okay. The net result of the proposed series of variances and approvals from the City is that we’re going to end up with a 2 story wall 15 feet from the edge of our property that violates the setbacks when you’ve got a whole large area on the other side. On the. Mayor Laufenburger: The east side. Brad Solheim: The house that would have no problem or any issue like that. The only difference is that it impacts our view. Our use of the property. All of that as compared to what the property owner’s doing and so it’s our position that it’s their obligation, it’s their property to build their property, build 22 Chanhassen City Council – October 12, 2015 whatever they’re going on the property and make sure they don’t need variances in putting those kind of walls right outside our windows. Mayor Laufenburger: Okay, very good. Is there anything else you’d like to say? Brad Solheim: No. Mayor Laufenburger: Okay. Brad Solheim: Oh the, I did want to make sure it’s clear of record also that the, we have a property owner dispute between the 2 property owners. Where the property lines are. I do not have a survey for everybody here today to show that no, the property lines are actually in a different location. That is an avenue that is being pursued and that actually, counsel can offer, there’s additional option that you have is you can table this for further information or something like that so if that was an issue for you, letting you know that there’s, this property owner has been in the property for a relatively short period of time. Did commission a survey that is in the packet and it is the basis for the applications here but we dispute the judgment calls that the surveyor makes in where he’s drawing the lines and those kinds of things. Mayor Laufenburger: I appreciate that comment. I think that falls clearly outside of our purview, Mr. Knutson is that correct? Roger Knutson: That’s correct Mayor. We can’t decide that issue. Mayor Laufenburger: Okay. But I appreciate that. Was there anything else? Brad Solheim: Is there anything else you wanted? Nelleke Knight: I don’t think so. Brad Solheim: Okay. I just want to make sure that this gets of record. Mayor Laufenburger: You’re welcome to provide that to us. I’d just like to make a comment to Ms. Knight. I appreciate that you’ve been in this community for 41 years and I hope that your time in this community has been worthwhile and that you continue to enjoy Chanhassen. You’re in a very, you are living in a character laden part of Chanhassen, meaning there is lots of strong character in the lake. In that Red Cedar Point. It has a great deal of history and I hope that you treasure your time in that area because it is. Nelleke Knight: Yeah I do and I surely hope that I’m able to keep it that way instead of having these walls to look at. Mayor Laufenburger: Yeah, I can appreciate that Ms. Knight but we also recognize, at least this council has a responsibility to protect all people’s property rights. 23 Chanhassen City Council – October 12, 2015 Nelleke Knight: Except mine apparently. Mayor Laufenburger: Everybody’s property rights. Thank you Ms. Knight. Thank you Mr. Solheim. Brad Solheim: Thank you. Councilman McDonald: Mr. Mayor? Mayor Laufenburger: Mr. McDonald. Councilman McDonald: Mr. Solheim. Can you explain the significance of the claim of abandonment and what that does as far as the non-conforming? I mean as I read through the Affidavit it seems you’re claiming at that point that any rights they may have as far as non-conforming property are erased. Brad Solheim: Yes. You’re absolutely right. That’s the legal claim that we’re making. It’s a very harsh part of municipal law but when you have a non-conforming use that is abandoned for a period of 12 months or longer, you’re no longer able to do it. What’s going to happen when you approve this, or if you approve this, is that anybody who has some reason to say that they have an excuse why a non- conforming non-continuous use is in place, they’re going to be abandoning. You’re going to say, when you tell them that they abandoned their rights, you’re going to have a hard time. Councilman McDonald: Okay, thank you for that. Mayor Laufenburger: So your argument would be that any structure that stands, let’s just say uninhabited. In other words there’s nobody inside a building for a period of 12 months, then that building by definition loses its legal non-conformity? Brad Solheim: Yes. Mayor Laufenburger: Okay. Brad Solheim: And it’s a harsh, harsh situation. I’ve seen it half a dozen times over the years. Some cities erroneously talk about use. Like you have a non-conforming use as being, you’ve changed the use and you lose your right to do it. That’s not the case. The statute is real clear about, I suppose I should pull out the specific statute. The statute says, if the non-conformity or occupancy is discontinued for a period of more than one year. And there’s no issue before… Mayor Laufenburger: So using your argument Mr. Solheim, somebody who lives in Chanhassen. If they chose to move to Europe for 16 months and leave their house for 16 months essentially and if that house was legally non-conforming, just the fact of time, even though nothing changed on that property, your argument is that it would become legally, it would become non-conforming. Not legally non- conforming, is that correct? 24 Chanhassen City Council – October 12, 2015 Brad Solheim: No. Mayor Laufenburger: So where’s the judgment? Brad Solheim: You’re talking about a little distinction there. Mayor Laufenburger: Where’s the judgment involved? I mean where’s the qualitative judgment that you’re implying to this? Brad Solheim: There’s nobody in the property. The person left. It was abandoned. I can give you an example in a neighboring city where somebody had a residence in a downtown business district that was non-conforming. The person died. Person died and the personal representative just didn’t get around to doing anything on it because that was just the way the guy was. So a year and a half later he tries to sell the property and the city said sorry, you were a non-conforming residential use in a business district. You know you no longer can use it as a residence. In that case it was doubly severe because the building was within the right-of-way, as many old cities are. The footprint of the building was encroaching and so the, the city said not only do you have to do it but if you’re going to make any changes whatsoever you’ve got to move it off the city street so they basically took the guy’s whole house away. Mayor Laufenburger: Okay, thank you Mr. Solheim. Appreciate your comments. Brad Solheim: Thank you. Mayor Laufenburger: Mr. Knutson, may I have your legal opinion on this please. Is this, in your legal opinion knowing our statutes, did the period of time that, from, as was discussed in the, whatever the period was, did that automatically move this property from legally non-conforming to now non- conforming Mr. Knutson? Roger Knutson: The answer is no. Let me explain. Mayor Laufenburger: Please do. Roger Knutson: The property is zoned RSF. Residential Single Family. The use of the property is conforming. So it doesn’t matter whether it was, no one lived there for 20 months or 20 years. The use is conforming. The use was not, doesn’t matter whether it wasn’t used for a while because the statute doesn’t apply because the use is conforming. It’s not non-conforming. What is non-conforming is the structure. The structure was not discontinued. The structure remains the way it is. It’s there today. Mayor Laufenburger: So there was no change to the structure during that period? Roger Knutson: No. 25 Chanhassen City Council – October 12, 2015 Mayor Laufenburger: Okay. So when the, when the current owners purchased that they essentially purchased a legally non-conforming structure. Roger Knutson: Correct. Mayor Laufenburger: And they now live in or now you have it, is that correct? They now live in a legally non-conforming structure. Roger Knutson: The only issue before you is whether or not you agree with the Planning Commission and staff that the criteria for a variance have been met. Or have not been met. If the criteria for a variance have been met then you obviously should approve the variance and adopt the findings. If you find that the criteria has not been met, on the other hand you would not approve it and you’d direct preparation of findings. Mayor Laufenburger: Alright and just one further question Mr. Knutson. Can you clarify what’s included in the criteria for acceptable variance? Roger Knutson: They’re set forth in, there are 5 or 6 criteria and only permitted within harmony with the general purposes of the zoning ordinance. When there are practical difficulties in complying with the zoning ordinance. And that means as used in conjunction with the granting of a variance. The property owners propose to use the property in a reasonable manner. The purpose of the variation is not based upon economic considerations alone. That the plight of the landowner is due to circumstances unique to the property not created by that landowner. And the variance if granted will not alter the essential character of the locality. Those are the criteria. Mayor Laufenburger: Okay, alright. Thank you Mr. Knutson. Does council have any questions, comment or motion? Or before I do that. Kate Aanenson: Sure. Mayor Laufenburger: Ms. Aanenson anything you want. Kate Aanenson: I just want to point out for the record. All those same points were brought up at the Planning Commission. If you read through the minutes they were addressed in detail because the city attorney gave us that same opinion that we did present at the Planning Commission. Obviously there’s not concurrence on that but that same issue was raised as were some of the other ones so there’s detailed, I won’t answer them all but there’s detail that they needed specific questions… Mayor Laufenburger: And I, my questions are not only for clarification for the council but also for there are many people that may be watching this or observing that may not have had the opportunity to review all of the details that we did. 26 Chanhassen City Council – October 12, 2015 Kate Aanenson: Sure. To that point the applicant did demonstrate at the second meeting the fact that, that while there was an existing garage there, it’s too low. The house has sunk and it can’t be used as a garage at this time. Mayor Laufenburger: Thank you very much for that clarification. Council any further comment or motion? Councilwoman Ryan: Mayor I’ll make a motion. Mayor Laufenburger: Please do. Councilwoman Ryan: The Chanhassen City Council approves a 17 foot shoreland setback variance and a 20.2 foot front yard setback variance to construct a two story attached garage subject to the conditions of the staff report and adopts the attached Findings of Fact and Decision. Mayor Laufenburger: Thank you Councilwoman Ryan. Is there a second? Councilman McDonald: I’ll second it but I want to make a comment. Mayor Laufenburger: You’ll have an opportunity to do so. Thank you for the second Mr. McDonald. Is there any further discussion? Mr. McDonald. Councilman McDonald: Mr. Mayor. Yeah I asked the question about the non-conformity because I feel that that’s the big legal question here and I just needed to get that straight in my mind especially since the whole law about us granting things has changed so much recently as to when we can and cannot grant variances. I do see that as a legal issue but that’s not an issue for this council and I think Mr. Knutson for saying what our options really are as far as what we can and cannot vote on and then from that point I think it’s up to the homeowner if you want to appeal based upon a legal reasoning, then by all means you have the right to do so. But this is not a court of law that would interpret basically what statute is. That’s not our job. We try to apply it and that’s why we have legal counsel here so based upon what we can do and the history of all of this, I mean what I see is a lot of compromises have gone on both with the homeowner in trying to effect the neighborhood itself. I think based upon that, that’s why I decided to go ahead and second this because there has been a lot of work. As Ms. Aanenson said, yeah there may have been a garage but if it sunk for who knows whatever reason over time because things settled or whatever, it doesn’t have a garage and we’ve had cases come through before where we say that’s one of the things you should be able to have upon your property. In fact even in Red Cedar I can remember cases that have come through there where we did grant variances based upon the fact a homeowner wanted to have a garage and we found a way to fit it in and yes we had to give I think some variances there too but Red Cedar as the Mayor said is very unusual part of town and the fact that I think it’s very hard for us to apply some of these ordinances or no one could live there just because of the way the lots are shaped and your closeness to the water and all of these things. We did the roads there a few years ago and we had problems because we couldn’t widen them out to the length, to the widths that they should be because to do that you start to eat up people’s property and that was something no one 27 Chanhassen City Council – October 12, 2015 wanted. So this is an area where compromise and I think a little bit of common sense has to come into play so that all the property owners you know have good use of their property. I applaud the compromise from the standpoint of I believe ma’am your view of the lake and everything is very minimally effected and I applaud staff for working to get that because there were a lot of things that we were trying to bring into play at that point and while with any compromise it’s no ideal for anyone. It will work for everyone and I think this compromise works and that’s why I decided that yes, we need to go forward with this so that’s just a comment I wanted to put on the record as to at least why I decided to go through this based upon the fact that you did bring up a legal issue. Mayor Laufenburger: Okay, thank you Mr. McDonald. Did you want, make any other comment Councilwoman Ryan? Councilwoman Ryan: No thank you. Mayor Laufenburger: No further discussion. Councilwoman Ryan moved, Councilman McDonald seconded that the Chanhassen City Council approves a 17 foot shoreland setback variance and a 20.2 foot front yard setback variance to construct a two-story attached garage subject to the following conditions and adopts the attached Findings of Fact and Decision: 1. The applicant shall expand the private drive to maintain at least a 10 foot wide drive, not to exceed 24 feet wide. 2. The driveway grade must not be less than 0.5 percent and must not exceed 10 percent. 3. The proposed structure shall maintain the existing drainage patterns. 4. The applicant must apply for and receive a building permit from the City. All voted in favor and the motion carried unanimously with a vote of 3 to 0. Mayor Laufenburger: Thank you very much. CONSIDER AWARD OF BID FOR BANKING SERVICES. Greg Sticha: Good evening Mayor and council. Let me get my information in front of me here real quick. The City awards a banking services contract based upon a RFP process every 3 years and has done so for many years going by. The City went out for award or RFP on the banking services contract which is set to expire here shortly. We had 4 banks that replied to providing the City’s banking services. Americana Community Bank which the City currently banks with. BMO Bank, KleinBank and US Bank. I’ve attached a spreadsheet that kind of breaks down the proposals by 8 criteria which staff reviewed each of the proposals by. After evaluating the RFP’s that were submitted there were 4 areas or 4 of the criteria that staff felt were of the largest significance in terms of separation between the 4 28