Appeal NarrativeAPPEAL TO T}M BOARD OF APPEALS AND ADJUSTMENTS
CITY OF CHANHASSEN, MINNESOTA
RE: 6893 HighoverDrive, Chanhassal MN 55317
Encroachment A$eement Partial Denial
APPELLANTS: Joan and Larry Synstelieru owners of 6893 Highover Drive, Chanhassen,
Minnesota 553 17, (hereinafter "Synselien Family".)
COMES NOW, Appellants Joan and Larry Synstelien acting pusuant to Mn. Stat. 5462.157,
SuM. 6, which provides for appeal to the city of Chanhassen Board of Appeals and Adjustments
by a person affected by compliance with conditions imposed by the Municipal Zoning
Ordinance.
ADMIMSTRATIVE DECISIONS IN ERROR HEREBY APPEALED:
Administrative Decision APPealed:
Decision by City of Chanhassen Administrative Officer Charles J. Howley, PE' LEED AP'
Director of Public Works/City Engineering, by letter of February 12,2020 ke: 6893 Highover
Drive Encroachment Agreement for various areas of 6893 Highover Drive. Therein, the
Synselien Family's Application for m Encroashment Aseement was approved in part and
denied in part. Specificalty, the following items in Synstelien's Encroachment Aqreement
Application were'denied:
#1. Item "F'(Block Wa[)' and
#2. Item "I" @ortion of Block Wall Wirhin Easement Area), (Modular Block Garden
Wall)
(See Exhibit "A".)
1
#l - Item "F' Glock Wall'l
Mr. Howley's 02llA2O20 denial of an Enuoachment Ageement for Item "F" (Block Wall)
does not state a reason for the denial.
The city,s 02119/2020 Residential Permit/Survev Routine Form, Engineering sectiorl prepared
in relation to this wall states as follows:
"Wall in D + U ESMT. Needs to be moved out of D + U ESMT. Label top + bottom
of walls including all elevation changes. Design does not address walls over 4' or
staged walls nearby. Design is vizual only Bot Eng. Certificate of wall construction
or operation."* @mPhasis added.)
(See Exhibit "B".)
* [The foregoing refertnce to walls over 4' and their construction fails to
acknowledge that any issue related thereto berween the city and Applicants
Synstelien was resolved last November after submission ofa civil Engineer's report
veriling that the on-site walls over 4' were built to code, and that this no longer an
issue.l
"I" (Po on of Bl Wall Easement Area
Mr. Howley's 02 tl2l2o2} denial of an Encroachment Agreement for ltem "I" (Portion of
Btock watl) does no, state a reason for the denid. It only states: 'tall will need to be
removed."
The city's 02119/2020 Residential Permit/Survey Routine Form. Engineering section, prepared
in relation to this wall states as follows:
..wall must be removed from D + U ESMT. @ Area regraded to keep overland flow in
D + U easement on Foperty. will need encroachment for all walls atlowed to remain
inD+uESMTareas.
(See Exhibit "C".)
SCOPE OF REVIEW
The Chanhassen Board of Appeals aod Adjustnents has the power:
(l)Tohearanddecideappealswhereitisallegedt}ratthereisanerrorinany
2
order, requirement, decision, ol determination made by an Administrative
Offrcer in the enforcement ofthe Zoning Ordinance; and
(2) To hear requests for variances from the requirements of the Zoning Ordinance
including restrictions placed on non-conformities.
REOUES TED RELIEF and VARIANCE
The Synstelien Family appeals the above decisions of the Director of Public works/city
Engineer Howley, and requests the chanhassen Board ofAppeals and Adjustnents:
(l) ovemrle the above-described Administrator decisions as an error, and/or
(2) grant, as needed, variances to applicable code to permit the walls at issue to
remain in place, as built, and suppo( inclusion of said walls in the Appellants'
requested Encroachment Agrcement.
DISCUS SION - Item "F" (B lock Wall)
Item "F" (Block WaIt) is a retaining wall, built of common sand colored landscaping blocks'
used throughout the synstelien property and neighborhood, holding back the soil on the East
sideoftheAppellants'home.Itwasbuilt,bycontractor,inconjunctionwithanexcavation
oftheeastsideyardtoaddabasementwalkoutingressandegressdoor'anddeckbuilt
under approved Building Permit. The Block wall, immediately east of the eastelly footings
of the new deck, encroaches approximately l foot into the City,s l0-foot deep Drainage (9
footfromthepropertyline)andUtilityEasement.Thelocationofthewallwasdetermined
by the third- party contractor, and not the Synstelien Family'
Theneighborhoodisfullydeveloped.Allneededutilityservicesareinplace.Sewerand
water service are in the street. There are no utilities located in the east Drainage and Utility
Easement, or impacted, or obstructed in the construction of the Block Wall '
When the l0-foot Drainage and Utility Easernent upon the residential property to the East is
takenintoconsideration,intotalthecityhasatleastlgfeetofunobstructedeasement
3
between these homes. In the remote possibility that the Block Wall might, at a future date'
become an obstruction, the Synstelien's understand the wall is subject to removal by the city,
which is reasonable and acceptable to the Synstelien Family.
This Block Wall is essential to the functionality and serviceability of the newly installed East
walkout door, an emergency exit mne, along with the newly built deck and should not be
required to be demolished. The wall shields visual site line ofthe underdeck from view,
hence, increasing visual appeal and security. The present demand that the Block Wall be
demolished and removed from the easement, when an encroachment agreement providing for
future removal - as needed, if needed - can resolve the issue, is per se unreasonable.
Demolition of the wall is not dictated by city code, especially when code provides for
encroachment agreements. Any conflict with city code can be answered by the grant of a
variance. Failure to over-rule the administrative decision at issue, and grant the needed
variance, will unjustifiably and unduly penalize the synstelien Family and adversely impact
the surrounding neigbbors through the need for heavy equipment, lawn removal, side walk
impedimurt,andnoise-terribleinconvenienceanddisruptionoftheirreasonable
enjoyment oftheir property and incursion of considerable, needless expense
WhentheSynstelienfamilyrelieduponitscontractortoplanandexecutetheeastsideyard
walkorx improvement, they never knew or understood the Block Wall would be improperly
located by the third-party contractor in the city easement' Nor did he know that an
EncroachmentAgleement,toanswerstaffobjectionsastoitsplacement,wouldbearbitrarily
denied. The final location of the encroaching Block Wall was made by the Applicant
Synsteliens' contractor, not the Synstelien Family'
TheCityinspectedtheDeckandGradingseveraltimesduringtheconstructionprocessandat
notimeissuedastopworkorderonthewallduetoitspositioning.onlyseveralmonthsafter
theendoftheconstructionandcompletionoftheprojectwasanissueraisedoftheneedfora
possibleencroachmentagreement.TheCityapprovedtheencroachmentofthedraintile.
The wall makes less of an impact to the easement than the drain tile'
TheSynstelienFamilyrespectfi:llysubmitsthattheAdministrativeofficer'sdecisioninthat
Item "F" (Block WalI) must be removed' and it cannot be ganted permission to remain in
placeunderanEncroachmentAgreement.CityCodeSection20-908YardRezu]ations,
4
paragraph (6) provides: ,.... retaining wall... and other encroachments may be allowed
within an easement with an Encroachment Agreement if they do not alter the intended use of
the easement and at the discretion of the community development director or designee. The
Administrative officer's decision denying an Encroachment Agreement for Item "F" (Block
Wall) rureasonable. The Board of Adjusments should determine that the determination was
unreasonable in that an Encroachment Agreernent for the synstelien Family property should
include Item "F". Variances are permitted under the practical diffrculty standard of M'S'
5462.357 , Subd. 6. The Synsteliens meet that standard hereon'
Manner of Use
Appellants Synsteliens' planned manner ofuse ofhis residential property - a sidewalk out
employing the retaining wall as located (above described) - is a reasonable manner ofuse of
a residential property in the applicable residential zone. Item "F" Block wall is below the
easement gmde. With only l-2 feet visible fiom the Synstelien house under the Synstelien's
deck, it makes no noticeable visual prcsence and does not adversely impact the quiet and
peaceful use and enjoyment of adjacent residential properties. In fact, it enhances the
neighborsviewbyshieldingtheareabelowdeckfromview'Thisalsoprovidesenhance
securitytothepropertybyshieldingviewoftheegressdoor.Thewall'slocation9feetback
ftomthelotline,and2gfeetWestofresidencetotheEast'makesnoimpactontheadjacent
property.
Pliqht of the ADpellants
TheplightofAppellantssynstelienwascreatdbytheirthird-partycontractor.TheAppellants
didnotknow,approve,orrequestthewallwouldbebuiltonefootintothecityeasement'Mr'
and Mrs. Synstelien have no training or experience as builder or surveyor. Their plight is not
oftheirownmaking.Rather,itistheproductofdesignandconstructiondecisionsbya
third.partycontractorreliedupontodesigil,locate,andconstructtheEastbasementwalk.out
and overlying deck.
I ofN
Thevarianceifgranted,willnotchangetheessentialcharacterofthelocality.Thisis
because,asnote4theBlockWallisbelowgradeandnotvisiblefromthestreet.Thewall
5
sits parallel and b€low the new deck. Consequently, the wall is subordinate thereto and does
not appear as a separate stnrch[e and blends even with the grass line. . Lastly, built of
standard landscaping blocks, commonly in use, and matching blocks used elsewhere upon
the Synselien property, the wall blends in, and is not of an objectional character.
DISCUSSION - Item "I'' (Portion of Block Wall Within Easement Area) (Modular Block
Wall)
Item 'f' (Ponion of Block Wall Within Easement Area) is a modular block garden wall built
of common sand-colored landscaping block which defines the line between sod and gardens
on the south portion of the Appellant's lot. This wall was built by a contractor in coqjunction
with a regrading of the Synstelien yard and the installation of an in-ground French drain.
The most southerly tip of the modular block garden wall incidentally encroaches upon the
City's Drainage and Utility Easement along the south line of the Synstelien lot. This
encroachment was not objected to by the Administrative Offrcer and will be permitted under
the requested Encroachment Agreement.
The most easterly tip ofthe modular block garden wall encroaches on the easterly Drainage
and Utility Easement. The newly installed French drain, in the Easterly Drainage and Utility
Easement, collects water which inundates the Synstelien property on a rcgular basis from
water draining from the north. The French drain directs the water rmderground to a soft
connect in the public street. Prior to the regrading of the lot water reaching the Synstelien
lot drained orito the property to the east. This was an existing condition not created by
synstelien. (See Exhibit "D"). with the regrading of the Lot and new French Drain, watel
reaching the Synstelien property from the south - originally destined for the property to the
East - is now drained rmderground to the street and is greatly reduced and is not significant'
The synstelien,s request to include the Easterly terminus of the modular block garden wall
under Encroachment Agreement, is necessary to avoid demolition and regrading of the
Synstelien lot one more time.
The Synstelien family relied upon a conmctor for grading and install of the garden wall and
wasnotaware,didnotrequest,orapprovedtheinstallationofthewallwithintheeast
Drainage and utility Easement. The synstelien family respectfirlly submits that the
6
Administrative Officer's decision that Item "I" (Portion of Block Wall Within Easement
Area) be removed and not granted permission to remain in place under an Encroachment
Agrcement is unreasonable and unnecessarily punitive to the Synsteliens and to surrounding
neighbors who would unnecessarily have endure construction vehicles, noise and sod removal
and replacement. . The City Code allows Encroachment Agreements for retaining walls that
do not alter the intended use of the City Drainage and Utility Easement (20-908(6)). The
easterly garden wall terminus does not alter the use ofthe City's easement. The denial ofan
Encroachment Agreement her€on was arbitrary, capricious and punitive. An Encroachment
Agreement is reasonable under the circurnstances and should be granted.
The Synstelien family requests the City Board of Appeals and Adjustments ovemrle the
Administrative Officer's decision regarding Item "I" (Portion of Block Wall Within
Easement Area) and, as needed, grant Applicant Synstelien a variance.
Variances are permitted under the practical diffrculty standard of M.S. $462.357, Subd. 6
Reasonable Manner of Use
Appellants Synsteliens' planned manner ofuse ofhis residential property - a decorative
garden wall as located (above described) - is a reasonable manner ofuse ofa residential
propefiy in the applicable residential zone. The Block Wall is no more than 14" above grade,
decreasing to no more than 6" above grade on the easterly tip. With minimal block wall
visible above grade, and primarily visible ftom the Synstelien's backyard porch it makes no
noticeable visual presence and does not adversely impact the quiet and peaceful use and
enjoyment of adjacent residential properties. ln light ofthe new French drain, the wall's
easterly terminus, as buil! makes no measurable adverse impact on the property to the East.
Plieht of Aooellants
The plight ofAppellants Synstelien was created by his third-party contfactor. The Appellants
did not know the wall would be built in the City Drainage and Utility Easement. Mr. and
Mrs. Synstelien have no training or experience as builder or surveyor. Their plight is not of
their oun making. Rather, it is the product of design and construction decisions by a third-
party contractor relied upon to desigrr, locate, in the consauction of the garden wall.
of the Area
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No Imoact on Essential Character
No Imnaat ooEgsiotial Cttrtctsr of ths Arsa
Tbc vaiuca if granls4 uiin nd changp thc e*seotial clrsacter of the locality. This is
bocauoc il is a corrnou lmdscaping anrnity,largely below grade md notvisible whcre tbc
gnde drops ald more u$ll blocks 8rc e)Qolad- Thc gard€o$l8il is subordioate to all oher lot
struc$rcs. Buill of stmdardlardscrying blocks, comuonly iruse asd matching blooks usod
else*hore upontte Syt#ticnproperly, tbevrall bleodsiq ondismt of an obitcticnal
8lchiEctural chEsstsr.
cortcl.r.rsloN
Aprpellonts Syustelio ralrests &at fre City 's Bmxt of AAcak ao'd Adjustoents rccopize
rha tbe $ouine pnaoticaL diffiarlrieg bciog imposd upoe the Synstelien family by the
rmreasonable aod unfrir dcrnad tr6 they now dencolkh thr aa ecfuting Item 'f" Bbck \tralt
atd ltqn *I" fb ca*edy tenninug of tre gflrden uall and thd 6c &mily sbould not bear the
bwdcn associs&d $ith rcbuildiqg a rtainirg walls md rc.ladscapirg thc bac.k yrd.
The dcrnand trar thc walls be ikmolishcd is unresollablc as it daies thc Syn elien Furily
tre reasonable use of thsh propcrty and imposes urduc expenses tbd ae punitive in ndr:rc'
The city can eccom$odslc ib nceds md rccomruodatc &e $ynstdiem Funlly by simply
agreebg o inckde tlc two walb io t* requestad ErstscMent Ag$@q!ot. tn thc unlikcty
avciltat$c city svertss *eod to ms ftc Draina6o mdtlility a8tcm8tt, aodlqnovs
same, it do so laudrlly.
.rl AP?ELLANTS SYNSTEI,II,N
(
For reference a copy of the 09/07/18-.Synstelien
Lot survey is attached as Exhibit "E".
R
Dusd:
CITY OT CIIAI,IHASSXI{
Chanhassen is a Community for Life - Providing for Today and Planning for Tornonow
February 12,2020
Larry Synstelien
6893 Higbover Drive
Chanhassen,MN 55317
RE: We have intemally reviewed thc submitted plan requesting encroachment agreements for
various areas at 6893 Ilighover Drive.
Dear Mr. Synstelien:
After reviewing the survey dated 3/19119 that was submitted as part of your request to have
multiple improvements on your property be allowed to stay in-place, t-e will support granting
encroachments for the improvements in the areas labeled *A, B, C, D, G, H & .P'' We would like
to note that these areas were constructed without permits and do encroach in drainage and utility
easement areas.
Item *E ' (the future fence) which has not been constructed will require a building fence permit
and separate encroachment agreement showing the location on a fi:ll size survey meeting all the
requirements for fences in Chanhassen.
Item "F" (block wall) is denied and will need to be rcmoved'
Item .T" (portion of block wall within the easement area) is denied and will need b be removed.
This area wlfl also necd to te gradtng to direct drainage witrin tbe msement and not onto &e
neighboring proPertY.
The drainage inlets and drain tile located along the southerly lot line needs more information
,no*n oo ,i" survey showing piping runs and sizes. The area wilhin the easement will need to
be regraded to not adversely shed water onto the neighboriug property'
'-Z/
Charles J. Howley,E, LEED AP
Director of Public Works/City Engineer
c: Stwe Ferraro, Corstrrction Managcr, Enginecr Tcd IV
Steve Lenz, Engineering Technician III
PH 952.2fr.1 I O0 . www.ci.chanhass€n.mn.us' FX 952.227.111 0
*qlili A _
700 MARKET B0ULEVARD 'P0 BOX 147'CHANHASSEN 'HINNES0TA 55317
Address:lrt
Legal:
Permil for: Home
Other
RESIDEN TIAL T/SURVEYROUTING FORM
La h3
Dare Receivea )
Addition Detached Structure
t)0>0
Explain:,
Route permi*/Survevs
r.ngin eering wlll order
in the fotlowhrg order. nole eny charges you require and forward to next departmenr.new s*rvcys as requested ard route for approvak ir rcyerse ortrer.
egal descri ptiop,building footpriut,building lype matehes survey (walhouq lookoug etct t',
t
Approved @lN Dare.ra1r:Lbe_ By,,T
Required corrcctions:
Revi sed suwey/plans approved Y/N Date:_ By:--.--
Setbacks,trce presewation, wetlaads,zone heigbt,area, bluff setbacls.
Appoved y,@ Dde
Required comctions:
By: h..A,^ or-- z*./
EA lecJct f. at* 'l a*R i,t. d.tt;"ap u.l uulttye$enr4-
By:
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Elevation, building typq grading/drairuge easemerts.
By:
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Erosion Coatol
Appoved lvrN Date: ',' ,)'j'1"
L,'By:
ExHrBrr.:.B-
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Deck
eareilyo.N'oo 7)'1
surface
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Revised sruvey/pians approyed Y /N Date:
Approved YIN Date;_ Bf...-
Approved Y/@ D*a-bfi:ltl By:-ll!l3=-_
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Revised survey/plans approved Y/N Date:-
Reguired cdrcc{ions;
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