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Findings of Fact - Denial - SignedCITY OF CHANHASSEN CARVER AND HENNEPIN COUNTIES, MINNESOTA FINDINGS OF FACT AND DECISION Denial) Larry and Mary Synstelien are appealing an administrative decision to partially deny a requested encroachment agreement by City Engineer Howley and applying for a variance to allow the retaining walls in question to be located within the city's drainage and utilities easement on a property zoned Single-Family Residential District(RSF) - Planning Case 2020-15. Due to the fact that city staff interacted with Mr. Larry Synstelien regarding this matter,the Findings of Fact and Decision will refer to him as the"applicant"or the"landowner" interchangeably throughout. On August 18, 2020, the Chanhassen Planning Commission, acting as the Board of Appeals and Adjustments, met at its regularly scheduled meeting to consider the appeal and variance request. The Planning Commission conducted a duly noticed public hearing on the appeal and proposed variance preceded by published and mailed notice. The Board of Appeals and Adjustments makes the following: FINDINGS OF FACT 1. The property is currently zoned Single-Family Residential District(RSF). 2. The property is guided in the Chanhassen Comprehensive Plan for Residential Low Density. 3. The legal description of the property is: Lot 3, Block 3, Highover 4. Appeal Findings: City Engineer Howley's assessment that the retaining walls interfere with the intended drainage function of the drainage and utilities easement is correct. Since the retaining walls interfere with the intended function of the drainage and utilities easement, City Engineer Howley was correct in denying the encroachment agreement and in requiring the relocation of the retaining walls. 5. Variance Findings—Section 20-58 of the City Code provides the following criteria for the granting of a variance: a. Variances shall only be permitted when they are in harmony with the general purposes and intent of this Chapter and when the variances are consistent with the Comprehensive Plan. Finding: The intent of prohibiting retaining walls from being located within the drainage and utilities easement is to insure that the easements can serve their function and that structures are not placed near property lines that will redirect water onto adjacent properties. The function of these easements is both to facilitate the installation 1 of utilities and to manage stormwater drainage. The location of the two retaining walls in question within the drainage and utility easements prevents the drainage and utilities easements from serving their drainage function and redirects surface water onto neighboring properties. Permitting the retaining walls to remain within the drainage and utilities easement would violate the intent of Section 20-908(6) of the City Code. Additionally, this section of the City Code states encroachment agreements should only be granted when they do not interfere with the intended function of the drainage and utilities easement. Allowing the encroachment of a structure that the City Engineer has determined to interfere with the intended function of the drainage and utilities easement would violate the intent of Section 20-908(6). b. When there are practical difficulties in complying with the zoning ordinance. "Practical difficulties", as used in connection with the granting of a variance, means that the property owner proposes to use the property in a reasonable manner not permitted by this Chapter. Practical difficulties include, but are not limited to, inadequate access to direct sunlight for solar energy systems. Finding: The applicant had received an approved grading permit for a grading plan that effectively managed the property's stormwater without necessitating the placement of new retaining walls within the drainage and utilities easement. Furthermore, plans for both the deck and walkout level door were approved without any retaining walls shown on the plans within the drainage and utilities easement. The applicant's difficulty in complying with zoning code is not the result of the City Code not permitting reasonable use of the property(lower level door, walkway, landscaping, etc.), but rather it is the result of improvements not shown on any plans and being constructed without permits in locations where they are not permitted. If the applicant had followed the approved grading and building permits, the property would have similar amenities and would comply with the City Code. c. That the purpose of the variation is not based upon economic considerations alone. Finding: The applicant cites the expense involved in regrading the property to comply with the approved grading permit as a reason why the variance should be granted. This economic consideration does not justify the granting of the requested variances. d. The plight of the landowner is due to circumstances unique to the property not created by the landowner. Finding: The plight of the landowner is entirely the result of work on the property being done without permits; there is no inherent circumstance unique to the property that would prevent it and its improvements from complying with the city's Zoning Code. The landowner started a grading project with no permit. The landowner worked directly with staff to develop a grading plan, upon which a subsequent grading permit 2 was based and approved. During these discussions, city staff made the landowner aware of the location of the drainage and utilities easements, the restrictions on what could be placed within them, and of the need for permits for new and/or relocated retaining walls. In response to this information, the landowner revised elements of the grading plan to minimize the placement of drain tile and other elements within the drainage and utilities easement and assured city staff retaining walls would not be located within it. The grading and construction activities that were subsequently conducted on the property are significantly different from what was approved and feature numerous walls located within the drainage and utilities easement. The applicant has stated that all of these improvements were located and installed by his contractor without the landowner understanding that there would be an issue; therefore, he claims that the plight was not created by the landowner. Given that city staff had numerous conversations with the landowner and developed the approved grading plan by working directly with the landowner, the city disputes that the landowner was unaware of what the property's grading was supposed to be or the approximate locations of the property's drainage and utilities easements. The landowner hired contractors to install improvements on the property and is ultimately responsible for the improvement installed at their request. If the landowner provided the contractor with the approved grading plan and the contractor took it upon themselves to install improvements beyond the scope of that plan or failed to obtain the required permits as specified in their contract,the proper remedy is civil action between the homeowner and contractor. A variance should not be issued to retroactively authorize improvements installed in violation of City Code at the landowner's request. e. The variance, if granted, will not alter the essential character of the locality. Finding: The presence of retaining walls and the associated landscaping does not alter the essential character of the neighborhood. Numerous properties in the subdivision have broadly similar retaining walls and landscaping features. These features are not aesthetically incompatible with the area. f. Variances shall be granted for earth-sheltered construction as defined in Minnesota Statutes Section 216C.06, subdivision 14, when in harmony with this Chapter. Finding: This does not apply to this request. 6. The planning report#2020-15, dated August 18, 2020, prepared by MacKenzie Young- Walters, et al. is incorporated herein. 3 DECISION The Chanhassen Board of Appeals and Adjustments affirms City Engineer Howley's partial denial of the encroachment agreement and denies the variance request to allow the retaining walls to be located within the drainage and utilities easement. ADOPTED by the Chanhassen Planning Commission this 18t day of August,2020. CITY OF CHANHASSEN BY: l J. r Steven Weick, hairman g:\plan\2020 planning cases120-15 6893 highover drive varlfndings of fact and decision 6893 highover drive (denial)_revised.doe 4