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
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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
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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.
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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
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