Letter from DeWitt Mackall Crounse & MooreDeWl"tt
Macka I I Crounse & Moore 5.c. cF'm
January 18, 2018
Julie N. Nagorski
Attorney at Law
612-305-1427
jnn@dewittmcm.com
CITY OF CHANHASSEN
RECEIVED
JAN 18 2018
Chanhassen City Council
City of Chanhassen CWHMSEN PLANNING DEPT
P.O. Box 147
Chanhassen, MN 55317
RE: Kirt Property Located at 7052 Minnewashta Parkway, Chanhassen, Minnesota
Our File No. 75694.001
Dear City Councilmembers:
Nathan and Daryl Kirt have retained me to represent them in connection with the property
located at 7052 Minnewashta Parkway in Chanhassen, Minnesota (the "Property"). The City
Council is scheduled to consider the Kirts' request for variances for the Property on January 22,
2018.
Introduction
This letter constitutes four requests by the Kirts. First, the Kirts respectfully request that the City
supply information that they have previously requested, as set forth in more detail below, so that
both the Kirts and the City can evaluate all relevant information pertaining to the Property and
the construction of a home on it. Second, pursuant to Minn. Stat. § 11 5.99, subd. 3(g), the Kirts
request that the City extend the deadline for acting on the variance application so that the Kirts
can modify their application as necessary based on the data to be supplied by the City. Third, the
Kirts respectfully request that the City determine that the Property does not require variances to
build Nathan Kirt's home as designed despite earlier representations by City Staff that variances
are required. Fourth, if the City Council denies their request for an extension and their request
for a determination that variances are not required for the planned and designed home, then the
Kirts request that the City Council grant the requested variances.
The Facts
A. The Property.
The Property is located on Lake St. Joe at the southwest corner of Minnewashta Parkway and
Kings Road and is legally described as shown as Exhibit 1 (Legal Description). Daryl Kirt, a
longtime Chanhassen resident, acquired the Property in June 1988. See, e.g., Exhibit 2 (Abstract
of Title Cover Pages). The Property is — and at all relevant times was — zoned residentially.
DeWitt Mackall Crounse & Moore S.C. is an affiliate of DeWitt Ross & Stevens S.C.
M A D I S O N G R E A T E R M I L W A U K E E M I N N E A P O L I S
2100 AT&T Tower, 901 Marquette Avenue, Minneapolis, MN 55402-3713 • Ph: 612.305.1400 • F: 612.305.1414
www.dewittmcm.com
City of Chanhassen
January 18, 2018
Page 2
Although Mr. Kirt has attempted to improve it on a number of occasions in the 29 years he has
owned it and paid taxes on it, the Property is presently and has always been unimproved and
undeveloped:
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See also Exhibit 3 (Photographs of the Property) and Exhibit 4 (Certificate of Survey rev.
11/28/17). The Property includes 6.27 acres. See Exhibit 2 (Abstract). A wetland is located on
the Property. The Kirts had the wetland delineated by Kjolhaug Environmental . Services
Company in October 2017. The Department of the Army Corps of Engineers reviewed the
City of Chanhassen
January 18, 2018
Page 3
delineation report and, by letter dated January 5, 2018, determined that it was accurate. See
Exhibit 5 (Corps' Approval Letter).
B. The Events in the Late 1980s.
Mr. Kirt's agreement to purchase the Property back in 1988 was conditioned on a soil
investigation report finding that the Property was suitable for the construction of a home. See
Exhibit 6 (1991 Findings of Fact, p. 2). Mr. Kirt was not interested in purchasing an
undevelopable property; he was investing his hard-earned funds in a property that he would use
productively. Mr. Kirt paid for a professional soil investigation in 1998 and a report issued in
June 1988 showed that if certain requirements were met, the Property would indeed be suitable
for the construction of a home. Id. Specifically, the soils were to be excavated to a depth of
twelve feet until suitable soil was reached. Id., p. 3. The limits of the excavation were to extend
from the perimeter of the foundation to be constructed outward one foot for every foot
downward. The soils were then to be replaced with suitable materials and compacted. The
process was to be monitored and tested by a qualified soil engineer, who would also provide
instruction as to the required depth of excavation based on actual results during excavation. Id.,
p. 3.
Given the presence of a wetland on the Property and the then -existing provisions of the City's
ordinances, Mr. Kirt next applied to the City for a variance. On June 26, 1989, the City granted
Mr. Kirt a variance to permit the construction of a single-family home 25 feet from the edge of a
Class A wetland. See Exhibit 7 (1989 Variance).
Upon soliciting bids in about the summer of 1989, Mr. Kirt received a proposal from Mark
Pieper d/b/a Mega Company to excavate the poor soils for a building pad, construct footings, fill
the pad with suitable soils such that it would be suitable for construction, and supply testing
results to Mr. Kirt showing that the pad would be suitable for building. See Exhibit 8 (Mega
Company (Pieper) Proposal). Mr. Kirt accepted the proposal in November 1989 and paid $5,000
down. Id. The remainder of Mr. Kirt's consideration to Pieper was to be in form of a transfer of
title to a motor vehicle with a value of $8,000.1 Id.; see also Exhibit 6 (1991 Findings of Fact,
p. 2). Pieper and Mr. Kirt understood that their contract incorporated the June 1988 soil
investigation report and that Pieper would have to satisfy its conditions. Id., pp. 4-5.
Pieper began the work pursuant to its contract with Mr. Kirt. While the work was in progress, it
was discovered that the unsuitable soils on the site went to a greater depth than the soil
investigation report had indicated. See Exhibit 6 (1991 Findings of Fact, p. 5). In the winter,
Mr. Kirt's lifeblood derives from Hooked On Classics, a small business located at 701
Jefferson Avenue Southwest, Watertown, MN 55388 which sells classic cars.
City of Chanhassen
January 18, 2018
Page 4
Pieper completed the excavation and the replacement of soils, and he built the pad in February
1990. Id., p. 6. Mr. Kirt hired and paid Instant Testing to inspect the soils to ensure that they
complied with the engineered requirements. Id., pp. 6-7. Reports from testing by Instant Testing
were conflicting, with earlier tests showing that the newly -constructed pad was substandard, but
later tests showing that engineered requirements were met. Id., pp. 7-8. Relying on Pieper's
work and the Instant Testing results, Mr. Kirt hired Tom Diethelm to construct footings and
foundation walls. Id., p. 9. In March 1990, Diethelm poured the footings and the foundation
walls and Mr. Kirt paid him $5,464.08 for that work. Id. Pieper then backfilled soils around the
newly -constructed foundation walls. Id. Within days, vertical cracks appeared in the concrete
footings and the basement walls. Id. The cracks rendered the walls and footings useless. Id.,
p. 10. The walls and the footings were removed in September 1990 at the cost of $4,387.50. Id.
The issues with the building pad and foundation wall construction caused Mr. Kirt to sustain
substantial damages. As a result, he sued Pieper. A trial regarding the dispute occurred over the
course of three days in February 1991 in Carver County District Court, the Honorable Richard J.
Menke. After hearing the evidence, the Court issued Findings of Fact, Conclusions of Law,
Order for Judgment and Judgment and Decree in April 1991. See Exhibit 6 (1991 Findings of
Fact). The Court determined that Pieper caused Mr. Kirt to sustain $41,591.58 in damages. Id.,
p. 12. It concluded that Mr. Kirt was entitled to judgment against Piper in that amount. Id.,
p. 13. Of that amount, Mr. Kirt collected only a portion over the next few years. Mr. Kirt's
investment in the Property as of April 1991 was the purchase price, property taxes for several
years, $41,591.58 for sums he lost due to Pieper, plus attorneys' fees and costs.
The City knew that the foundation walls were removed mechanically; they did not collapse. On
September 13, 1990, Mr. Kirt's attorney wrote Pieper's attorney a letter regarding the City's
request that the basement be removed:
Please be advised that the City of Chanhassen has requested of
my client that the basement be dug out on the property that is
the subject of this lawsuit. This letter is to request that Mark
Pieper d/b/a Mega Company dig out the basement at no cost to my
client. If Mark Pieper d/b/a Mega Company does not do this, then
my client will have to find someone else to do the work which will
be further damages claimed by my client.
The City has made the request that this be done in a timely
fashion so that if you or your client do not contact me within four
days of the date of this letter, we shall assume that there is no
interest by your client in digging out the basement and shall go
City of Chanhassen
January 18, 2018
Page 5
forward to have someone else do the work which would be further
damages claimed against your client.
See Exhibit 9 (Letter dated 9/13/90) (emphasis added).
The Kirts believe that, as a result of the work completed at the site in 1989-1990, the Property
includes a building pad with the approximate dimensions of 28 feet by 90 feet. The pad sits at a
diagonal to the intersection of Kings Road and Minnewashta Parkway. Before construction
begins on a new home, they will have the existence, suitability, and parameters of the pad tested
and certified by the appropriate professionals.
C. The City Constructed a Holding Pond on the Property in About 1992.
After analyzing the need for storm water improvements in the City several years ago, the City
decided that it needed land for storm water retention and approached the Kirts accordingly. In
1992, the City and the Kirts agreed to a permanent easement on the Property. See Exhibit 10
(1992 Easement). The easement, recorded against the Property, is for "public drainage
purposes" over the Property and requires that the City maintain it:
The City shall be responsible for the maintenance of said
permanent easement premises and shall also be responsible for the
maintenance of the culvert and the free flow of waters between the
easement premises and Lake Minnewashta.
Id. The City then constructed a small holding pond on the Property. See Exhibit 11 (Holding
Pond Map, Photographs, and Plan). It also installed a 39" inch culvert under Minnewashta
Parkway so that the holding pond on the Property could drain to the east side of the parkway and
out to Lake Minnewashta. See Exhibit 12 (Photograph of Culvert). The culvert frequently
attracts beavers, which create dams there, blocking the flow of water out of the holding pond and
raising its level beyond the level that was anticipated when the easement was granted and the
pond was created. Throughout the years, the Kirts have reported the beaver damming issues to
the City and asked that the City fulfill its obligations under the easement and remove the
damming. The City usually declines to do so, citing staffing shortages. Because the City refuses
to satisfy its commitments regarding the culvert and the pond, Mr. Nathan Kirt has removed the
beaver dam on more than one occasion. The Minnesota Department of Natural Resources has
confirmed to the Kirts that the culvert is of insufficient size.
The Kirts have requested that the City provide data pertaining to the areas from which water
flows into the holding pond on the Property. Surely the City commissioned a study or analysis
City of Chanhassen
January 18, 2018
Page 6
before requesting the easement from the Kirts. Despite requests, the City has not yet supplied
the stormwater analysis concerning the holding pond.
D. The City Improved Kings Road and Altered the Right of Way.
When Mr. Kirt purchased the Property, Kings Road was unpaved. It was only improved with
curb and gutter and pavement in about 1993. See Exhibit 13 (1993 Assessment). We do not
have information regarding any modifications to the right of way that might have occurred when
Kings Road was improved. We do know that the City installed the electrical box at the corner at
about that time and thereby obstructed the view from the Property to Lake Minnewashta,
depreciating the value of the Property.
E. Another Holding Pond was Constructed to the Immediate West of the Property.
In or about 1994 or 1995, developers sought to construct a residential subdivision of the land to
the north of the Property across Kings Road, land comprising approximately 40 acres. A
stormwater analysis was completed in connection with the development and permitting process.
That analysis showed that the development of that land (now known as Oaks of Minnewashta)
would require an additional holding pond to control the drainage of that land. Accordingly,
Outlot A was created immediately to the west of the Property and it now is the location of a
holding pond. See Exhibit 14 (Portion of Survey Showing Outlot A) and Exhibit 15 (Drainage
Areas Diagram for Outlot A). In response to the Kirts' request for information concerning the
holding pond on the Property, rather than supplying information regarding the holding pond on
the Property, the City disclosed data regarding the Outlot A pond. See Exhibit 16 (Holding
Pond Email from City 11/17/17).
F. The City Built a Sewer Liftstation on the Property and it Leaked.
In about 1973, the City built a sewer liftstation on the Property, purportedly within the right of
way for Minnewashta Parkway. See Exhibit 17 (Liftstation Easement for the Kirt Property).
The liftstation is primarily subterranean. The liftstation impacts the value and potential use of
the Property. The Kirts have observed that the City's sewer liftstation at South Lotus Shores is
over 200 feet from the nearest home, which is located at a higher elevation than the liftstation in
that location. See Exhibit 10 (Photographs at Lotus Lake Liftstation).
In May 2017, Mr. Kirt happened to drive past the Property. He noticed City trucks parked on it.
He also noticed that the fire hydrant on the Property was discharging water onto the Property.
He therefore stopped his vehicle on the Property and asked the City employees what was
happening. They responded that the sewer liftstation had leaked sewage onto the Property. The
City decided — rather than to report the incident to the Minnesota Pollution Control Agency or
City of Chanhassen
January 18, 2018
Page 7
other appropriate authorities and formulate a proper response plan, and without notifying
Mr. Kirt or any of the adjoining property owners — to discharge the fire hydrant to release water
to flush the sewage from the Property to the wetland on the Property.
G. The City Dumped Storm Sewer Contents on the Property.
In 2001, Mr. Kirt happened to drive past the Property. He noticed City trucks parked on it. He
therefore stopped his vehicle on the Property and asked the City employees what was happening.
They indicated that the City had vacuumed the storm sewers. The City trucks were emptying the
remains of the storm sewers onto the Property. Mr. Kirt called the City and Channel 9 News and
a media crew arrived. See Exhibit 19 (12/21/01 Article); Exhibit 20 (City's 12/20/01 Letter). It
took a sample of the City's deposit onto the Property. The sample confirmed that the deposit
was the contents of a storm sewer. The City was displeased with Mr. Kirt for having reported
the incident to the news. Although the City removed some of the deposited materials from the
Property, the deposit occurred unlawfully and illegally and runoff from the deposit into the
wetland had to have occurred.
H. Additional Facts Ite�arding the Property.
Mr. Kirt has paid taxes on the Property for all years since he acquired it in 1988. For the last
fifteen years, those taxes total $18,510. See Exhibit 21 (Tax Parcel Summary). The City values
the Property at $92,700 for 2016 and $97,500 for 2017. See Exhibit 22 (Property Tax
Statement).
After the events leading to the trial in 1991, Mr. Kirt decided that if he could not use it to build
the home he wished to build, he would sell it. Accordingly, he listed it for sale in 1992. It did
not sell. He has listed it for sale, on his own and through realtors on occasion, at all times since
1992. See, e.g., Exhibit 23 (Trulia Estimate and Home Details). It did not sell. While the
Property was listed, Mr: Kirt would receive contacts from prospective purchasers. Some of those
inquiring buyers informed him that they would call the City for information about the Property
and would be told by City staff that the house there sunk. Other callers informed Mr. Kirt that
the City would represent to them that the building pad on the Property is 20 feet by 20 feet in
size. Upon receiving these reports, Mr. Kirt retained and paid a private investigator, Charles
Loesch, in about 11999 to call the City about the Property. When he called the City, the City
Planning Department informed him that the Property was unbuildable. See Exhibit 24
(Transcript of 4/1/99 Call to City).
More recently, just before the Kirts submitted their most recent applications to the City, Mr. Kirt
visited City Hall and spoke with Senior Planner Bob Generous. Mr. Generous was unable to
City of Chanhassen
January 18, 2018
Page 8
locate the City's file regarding the Property. Then he recalled that the City's file was in the
basement. He then said "oh, that's the house that sunk."
In about early 2016, Mr. Todd Hoffman, City Park and Recreation Director, informed the Kirts
that the City planned to improve the park near the Property. Mr. Kirt suggested that the City
acquire the Property for its park system. About one month later, when Mr. Kirt called
Mr. Hoffman to follow up regarding the potential sale, Mr. Hoffman informed Mr. Kirt that the
City had met and discussed the issue, but that the City decided it would not purchase the
Property because there is "too much wetland" on the Property.
The Kirts have been unable to use the Property in any manner. When they were younger, the
Kirt children would tent camp on it. In the spring of 2017, the Kirts placed a picnic table and
yard chairs on the Property. The City, however, was displeased. By letter dated June 5, 2017,
the City informed the Kirts that they had to remove the items stored at the Property. See
Exhibit 25 (City's 6/5/17 Letter). To satisfy the City's desires, the Kirts removed the items from
the Property.
The City's 2030 Comprehensive Land Use Plan shows the City intends that a substantial portion
of the Property will be park or open space. See Exhibit 26 (City's 2030 Plan Map). The Kirts
have planted numerous trees on the Property over the course of the last three decades and
Mr. Nathan Kirt removes buckthorn from the Property.
I. The Wetland on the Property.
City Staff has indicated that the wetland on the Property is "outstanding." The City's Zoning
Ordinance recognizes five types of wetlands: (a) Outstanding; (b) Preserve; (c) Manage 1;
(d) Manage 2; and (e) Manage 3. See City Code, § 20-411(b).2 A number of factors suggest that
the wetland on the Property is more properly designated as a Manage 2 wetland.
Nathan Kirt, along with other owners of other parcels along Kings Road, has participated with
the Minnesota Department of Natural Resources ("DNR") and the Minnesota Pollution Control
Agency in lake monitoring. The citizens take readings of Lake St. Joe and provide them to the
DNR. The DNR uses those readings to, among other tasks, analyze the water quality at the lake.
The DNR recently provided the Kirts with a chart showing "Recorded Water Levels" regarding
Lake St. Joe. See Exhibit 27 (Recorded Water Levels Chart). That chart shows that Lake St.
Joe has substantial bounce, meaning the depth fluctuates greatly. The ten-year bounce rate well
exceeds 1.0 feet. Id. The wetland protection goals set forth in the City's Comprehensive Plan
2 The City's Comprehensive Plan similarly recognizes five types of wetlands. See Comp Plan,
Chapter 5, Figure 5-6.
City of Chanhassen
January 18, 2018
Page 9
rely on the City's Surface Water Management Plan. See Comp Plan, Chapter 5, p. 5-10
(referencing the SWMP). Pursuant to the City's Surface Water Management Plan, a "preserve"
wetland should have no bounce, a Manage 1 wetland should have a bounce of only one-half a
foot, and a Manage 2 wetland will have a bounce of 1.0 feet. See SWMP, Table 42. Given the
greater than one foot bounce recorded at Lake St. Joe, the wetland on the Property is more
appropriately designated a Manage 2 wetland.
Substantial additional information indicates that Lake St. Joe is wrongly classified as a Natural
Environment Lake.3 Among other information, there are numerous homes around the lake. See
Exhibit 28 (Development Around Lake St. Joe). There are numerous docks around the lake.
There is a public access to the lake. There are numerous holding ponds around the lake,
including the one on the Kirt Property, the one on Outlot A, and one near to the public access.
The lake sees substantial motorized boat traffic. All of these factors suggest that Lake St. Joe
should be classified not as natural environment but as recreational development. See Minn.
R. 6120.3000; City Code, § 20-479. The lake's incorrect categorization impacts the mis-
categorization of the wetland on the Property.
J. The Kirts Requested Variances at the Insistence of the City.
In 2016, the Kirts communicated with the City again about their desire to construct a home on
the Property on the pad that was improved back in the late 1980s. Daryl Kirt intends to transfer
the Property to Nathan Kirt and Nathan intends to live there with his wife and young child. In
anticipation of construction of the new home, and believing that construction was finally just
around the corner, Nathan Kirt and his family sold their home and moved in with Daryl Kirt.
The Kirt child attends school close to the Property and Nathan and his wife transport him to
school every day.
At an August 10, 2017 meeting, the City represented that the 25 foot setback from the wetland
was "agreed to" when the City granted the variance on June 26, 1989 for the building pad where
it is presently constructed and located. See Exhibit 7 (1989 Variance). The City stated that the
Kirts only needed to apply for the building permit. Later, however, the City reversed course and
informed the Kirts that they needed to obtain a variance to build on the grandfathered pad.
Lakes classified as natural environment are "generally small, often shallow lakes with limited
capacities for assimilating the impacts of development and recreational use. They often have
adjacent lands with substantial constraints for development such as high water tables,
exposed bedrock, and unsuitable soils. These lakes, particularly in rural areas, usually do not
have much existing development or recreational use." Minn. R. 6120.3000, subp. 1(a).
City of Chanhassen
January 18, 2018
Page 10
At the urging of the City, on August 18, 2017, the Kirts submitted an application for a variance
to reduce the required wetland buffer width to 20 feet (as opposed to the 50 feet purportedly
required under the City's Code) and an 18.2 foot wetland buffer setback (as contrasted to the 50
feet purportedly required under the City's Code). See Application for Development Review.
The City Staff recommended that the Kirts' variance application be denied. City Staff proposed,
instead, that the City grant a variance that the Kirts had not requested in which the home would
be constructed with a smaller footprint, located off the pre-existing pad in the grandfathered
location, and within feet of the sewer substation which has already leaked once.
Following the recommendations of City Staff, the Planning Commission recommends denial of
the Kirts' application. Instead, the Planning Commission recommends approval of a 10 foot
wetland buffer variance, requiring a 40 foot wetland buffer, and a 30 foot buffer setback
variance, requiring a 20 foot wetland buffer setback, with accessory structures subject to a ten
foot wetland buffer setback. The Planning Commission thus recommends denial of the Kirts'
application. Its recommendation, if followed, would require that the Kirts move the home from
the pre-existing pad, shrink its dimensions considerably, locate it almost immediately on top of
the sewer liftstation, and construct it in an L-shaped manner as shown in red below:
City of Chanhassen
January 18, 2018
Page 11
Contrary to the representations of City Staff, the DNR does not take issue with the Kirts' plan for
developing the Property. The DNR and the Kirts' surveyor met at the Property and, as a result,
the survey was revised on November 28, 2017 to account for all issues that the DNR had earlier
raised. See Exhibit 4 (Certificate of Survey rev. 11/28/17). Absent from the packet presented to
the City Planning Commission in advance of its January 2, 2018 meeting and hearing regarding
the Kirts' application is an email from the DNR to City Staff — after the DNR's review of the
November 28, 2017 revision of the survey — confirming that the survey complies with DNR's
requirements. See Exhibit 29 (11/29/17 Email from DNR to City Staff).
The Law
I A Variance Is Not Required Because the Zoning Ordinance Does Not Require a
Wetland Buffer for the Dirt Property Which was a Lot of Record Before 2007.
Cities have zoning powers because the Minnesota Legislature delegated those powers to cities.
Minn. Stat. § 462.357, subd. 1. Cities are to create zoning ordinances to regulate the usage of
land within their limits. Id. In contrast to zoning ordinances, comprehensive guide plans lack
"the force of law." PTL, L.L.C. v. Chisago Cty. Bd. of Comm'rs, 656 N.W.2d 567, 575 (Minn.
Ct. App. 2003) (overturning City's land use decision); see Minn. Stat. § 462.353, subd. 1 ("A
municipality may carry on comprehensive municipal planning activities for guiding the future
development and improvement of the municipality and may prepare, adopt and amend a
comprehensive municipal plan and implement such plan by ordinance and other official
actions in accordance with the provisions of sections 462.351 to 462.364) (emphasis added). "A
comprehensive plan is merely a guide containing `objectives, policies, standards and programs to
guide public and private land use, development, redevelopment and preservation for all lands and
waters within the jurisdiction of the local governmental unit.'" nossow v. City of Lake Elmo,
No. A17-0077, 2017 WL 5661571, at *8 (Minn. Ct. App. Nov. 27, 2017) (citing Minn. Stat.
§ 473.859, subd. 1 (2016)) (reversing City's land use decision under zoning ordinances which
relied on inconsistent comprehensive plan because "none of the city council's findings provides
a rational basis for denial ..."); see also See Mendota Golf, LLP V. City of Mendota Heights, 708
N.W.2d 162, 173 (Minn. 2006) (conflicts between zoning ordinances and comprehensive plans
must be resolved by the City).
T he Property was a legal lot before May 14, 2007 and therefore no variance is required. The
City's zoning ordinance, the official control that applies to the Kirts' Property, provides that
"[fJor lots created after on or after May 14, 2007, a buffer strip shall be maintained abutting all
4 A "lot of record" is defined as "any legally recorded lot which at the time of its recordation
complied with all applicable laws and ordinances." City Code, § 1-2.
City of Chanhassen
January 18, 2018
Page 12
wetlands." City Code, § 20-411. The City's Code of Zoning Ordinances does not set forth a
requirement for a buffer strip for lots created before May 14, 2007.
The City's Comprehensive Plan, meanwhile, expressly provides that it is merely a guide. See
City's 2030 Comprehensive Plan, § 1-2 ("[a] Comprehensive Plan is designed to serve as a guide
for the local decision-making process. The cornerstone of such a comprehensive planning
process is the development and adoption of goals and policies which identify the desired
qualities and overall vision for the future of the community. These goals and policies are based
on the needs of the City along with the unique characteristics and values of the community.").
While the City's Comprehensive Plan provides a guide, the City's Zoning Ordinances carry the
force of law and the fact that portions of the Comprehensive Plan conflict with the City's Zoning
Ordinances cannot serve as a basis for a denial of an application for a permitted land use.
The Kirt Property was a legally recorded lot (see Exhibit 2 (Abstract of Title Cover Pages))
which at the time of its recordation long before Mr. Kirt acquired it in 1988 complied with all
applicable laws and ordinances. Therefore, no wetland buffer strip is required. Accordingly, the
Kirts do not require a variance from the wetland buffer width or the wetland buffer setback. The
Kirts respectfully request that the City so decide and permit the Kirts to move forward with
obtaining the building permit they seek.
Il. The City Should Grant the Kirts' Application for Variances Because the
Application Satisfies the Criteria for a Variance and Buffering will Require that the
Property be Maintained in its Current and Longtime Economically -Non -Beneficial
Use.
In the event that the City persists in its belief that a wetland buffer strip is required and that the
Kirts must obtain a variance despite the clear terms of the City's zoning ordinance and the
grandfathered pad, then the Kirts request that the City grant a variance to permit them to
construct the home in the location shown on their application. See Exhibit 4 (Certificate of
Survey rev. 11/28/17). A variance application requires a showing that the "strict enforcement of
the zoning ordinance would cause practical difficulties because of circumstances unique to the
individual property under consideration. City Code, § 20-28(b)(2). "Practical difficulties"
means "that the property owner proposes to use the property in a reasonable manner not
permitted by" the zoning ordinance. Id., §§ 20-56, 20-58. Additional factors to consider are
whether the variance requested is "in harmony with the general purposes and intent" of the
zoning ordinance, whether the sole consideration underlying the variance request is economic,
whether "the plight of the landowner is due to circumstances unique to the property and not
created by the landowner" and whether the variance, if granted, will alter the essential character
of the locality. Id., § 20-58; see also Minn. Stat. § 462.357 (2011); Krummenacher v. City of
Minnetonka, 783 N.W.2d 721, 732 (Minn. 2010) (regarding prior version of variance statute).
City of Chanhassen
January 18, 2018
Page 13
The Minnesota DNR lacks any authority regarding zoning. See, e.g., In re Hubbard, 778
N.W.2d 313, 325 (Minn. 2010) (overturning decision which had allowed DNR to certify a city's
variance decision). The City should grant the Kirts' application because their request satisfies all
of the criteria.
The Kirts' application meets each of the factors set forth in the City's ordinance for the granting
of a variance:
(1) The request is in harmony with the general purposes and intent of this chapter and
it is consistent with the comprehensive plan.
The Property is and was at all relevant times zoned residentially. It has never been
improved. If it is determined that the wetland buffer requirements for post -2007 lots
apply to the Kirt Property, the Property cannot be improved with a single-family
home and all economically-benef cial and productive use of the !arid is prohibited.
The fact that the Kirts unsuccessfully listed the Property for sale for years shows as
much, as does the City's decision not to purchase it due to the wetland. The fact that
the City required the Kirts to remove outdoor recreational equipment from it in 2017
also shows that the Property has zero economically -beneficial use. Even the City
Staff has recognized that due in part to the 50 foot by 50 foot easement for the
sanitary lift station, "the building envelop for the parcel is reduced to a 10 foot deep
by 30 foot wide area, which would not permit the construction of a single-family
home and two car garage." Other lots zoned residential around Lake St. Joe are
improved with homes and are used residentially. The Kirts have paid costs in
connection with constructing a home on the Property and they have long paid
substantial amounts of taxes on the Property.
(2) There are practical difficulties in complying with the zoning ordinance. The Kirts
propose to use the property in a reasonable manner not permitted by the City's
zoning ordinance.
If it is determined that the wetland buffer requirements for post -2007 lots apply to the
Kirt Property, the Property cannot be improved with a single-family home, the use
permitted under the zoning ordinance for a property zoned residentially. Tlie Kirts'
intent to use the grandfathered location of the building pad with the costs that they
already incurred and paid in connection with that location is reasonable. The location
of the home, a distance from the sewer substation, is reasonable. Substantial distance
separates other substations in the City from homes.
City of Chanhassen
January 18, 2018
Page 14
(3) The purpose of the variation is not based upon economic considerations alone.
The Kirts want to build a home for their young family. They want the home to be
located a reasonable distance from the sewer substation for numerous reasons,
including but not limited to the potential for leaks, a potential that was already
realized once.
(4) The Kirts' plight is due to circumstances unique to the Kirt Property not created by
the Kirts.
The presence of the holding pond, the sewer substation, and the wetland represent
circumstances unique to the Kirt Property not created by the Kirts.
(S) The variance requested by the Kirts will not alter the essential character of the
locality.
The neighborhood is park, lake, and residential and allowing the Kirts to build their
home as planned and designed will not alter that character.
Requests
The Kirts request that the City provide information so that the Kirts and the City can best analyze
the relevant information. The Kirts request two categories of information:
1. All information relating to the area of land from which surface water flows onto the Kirt
Property and into the holding pond located there; and
2. All information relating to 2017 sewer liftstation incident on the Kirt Property.
Secondly, the Kirts request that the City recognize that the construction of a single family home
on the Property within the designed and planned building pad on the grandfathered location does
not require any variances for the reasons set forth above.
Third, in the event that the City believes that variances are required, then the Kirts request that
the City delay consideration of the variance request for the Property pursuant to Minn. Stat.
§ 15.99, subd. 3(g) ("[a]n applicant may by written notice to the agency request an extension of
the time limit under this section.").
Fourth, the Kirts request that if the City believes that variances are needed, then the City grant
them any requisite variances for the reasons set forth above so that they may construct the home
on the Property in the location shown in their application.
City of Chanhassen
January 18, 2018
Page 15
Conclusion
The Kirts appreciate the City's willingness to assist its citizens in their efforts to realize the value
of their property and obtain returns for their investments in land within the City. We do hope
that the City Council recognizes, at a minimum, that additional information will be useful and
that it delay hearing the issues regarding the Kirt Property rather than considering the application
at its January 22 meeting.
If you need any additional information, please contact me.
Very truly yours,
DEWITT MACKALL CROUNSE & MOORE sx.
Julie N. Nagorski
Enclosures
cc: Nathan Kirt
Daryl Kirt
City of Chanhassen
January 18, 2018
Page 16
Index to Exhibits
Exhibit 1 ........ Legal Description
Exhibit 2 ........ Abstract of Title Cover Pages
Exhibit 3 ........ Photographs of the Property
Exhibit 4 ........Certificate of Survey rev. 11/28/17
Exhibit 5 ........ Corps' Approval Letter
Exhibit 6 ........ Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and
Decree (April 1991)
Exhibit 7 ........1989 Variance
Exhibit 8 ........ Mega Company (Pieper) Proposal
Exhibit 9 ........Mr. Kirt's attorney's 9/13/90 letter to Pieper's attorney
Exhibit 10 ......1992 Easement
Exhibit 11 ...... Holding Pond Map, Photographs, and Plan
Exhibit 12 ...... Photographs of Culvert
Exhibit 13 ......1993 Assessment
Exhibit 14
...... Portion of Survey Showing Outlot A
Exhibit 15
...... Drainage Areas Diagram for Outlot A
Exhibit 16
......Holding Pond Email from City 11/17/17
Exhibit 17
...... Liftstation Easement for the Kirt Property
Exhibit 18
...... Photographs at Lotus Lake Liftstation
Exhibit 19
......12/21/01 Article
City of Chanhassen
January 18, 2018
Page 17
Exhibit 20 ...... City's 12/20/01 Letter
Exhibit 21 ...... Tax Parcel Summary
Exhibit 22 ...... Property Tax Statement
Exhibit 23 ...... Trulia Estimate and Home Details
Exhibit 24 ......Transcript of 4/1/99 Call to City
Exhibit 25 ......City's 6/5/17 Letter
Exhibit 26 ...... City's 2030 Plan Map
Exhibit 27 ...... Recorded Water Levels Chart
Exhibit 28 ...... Development Around Lake St. Joe
Exhibit 29 .....11/29/17 Email from DNR to City Staff