PC Staff Report 8-18-20PLANNING COMMISSION STAFF
REPORT
Tuesday,August 18,2020
Subject Consider an Appeal of the City's Denial of an Encroachment Agreement for Retaining Walls and
Variances from the City's Prohibition on Locating Structures within Drainage and Utility
Easements located at 6893 Highover Drive
Section PUBLIC HEARINGS Item No:C.1.
Prepared By MacKenzie Young-Walters,Associate
Planner
File No:
PROPOSED MOTION:
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 retaining walls to be located within the drainage
and utility easement,and adopts the attached Findings of Facts and Decision.”
SUMMARY OF REQUEST
On October 4,2016,the city issued a grading permit for the construction of a berm and installation of drain tile at 6893
Highover Drive.During subsequent inspections during 2017,staff determined that retaining walls had been built on the
property without the proper permits and that the grading done on the property was not consistent with the issued
grading permit.In 2018,the city initiated litigation to seek compliance with the issued grading permit and the provisions
of the Chanhassen City Code.As part of the legal process,the applicant wishes to exhaust all administrative appeals
before trial.The applicant applied for building and zoning permits for the walls in February of 2020.City Engineer
Howley subsequently denied the applicant’s request to include two of the retaining walls in an encroachment agreement.
These two retained walls are located within the drainage and utilities easement.City Engineer Howley requested that
they be removed,and the property be regraded in a manner consistent with the approved grading permit.The applicant
has not complied with this request.
The applicant is appealing this denial.The applicant indicated that the denial is unreasonable and unfair.The applicant
asserts that the wall was built in its location by a third-party contractor,that the walls do not interfere with the use or
intent of the drainage and utility easements,and that requiring their removal the grading of the property would create an
unreasonable and unnecessary hardship for the homeowner.
Staff’s position is that City Engineer Howley’s denial of the requested encroachment agreement is necessitated by the
fact that the retaining walls in question have altered the property’s drainage in a manner inconsistent with the approved
grading plan to the detriment of neighboring properties.Staff notes that despite informing the homeowner in 2016 and
2017 that permits would be required to relocate or install new retaining walls,the applicant did not file any permits until
after the walls were completed and legal action was initiated.Since the applicant knowingly had walls installed without
the required permits,the hardship is self-inflicted,and staff recommends that the Planning Commission affirm the City
PLANNING COMMISSIONSTAFFREPORTTuesday,August 18,2020SubjectConsideran Appeal of the City's Denial of an Encroachment Agreement for Retaining WallsandVariancesfromtheCity's Prohibition on Locating Structures within Drainage andUtilityEasementslocatedat6893HighoverDriveSectionPUBLICHEARINGSItemNo:C.1.Prepared By MacKenzie Young-Walters,AssociatePlanner File No:PROPOSED MOTION:“The Chanhassen Board of Appeals and Adjustments affirms City Engineer Howley’s partial denial oftheencroachmentagreementanddeniesthevariancerequesttoallowretainingwallstobelocatedwithin thedrainageandutilityeasement,and adopts the attached Findings of Facts and Decision.”SUMMARY OFREQUESTOnOctober4,2016,the city issued a grading permit for the construction of a berm and installation of drain tile at6893HighoverDrive.During subsequent inspections during 2017,staff determined that retaining walls had been built onthepropertywithouttheproperpermitsandthatthegradingdoneonthepropertywasnotconsistentwiththeissuedgradingpermit.In 2018,the city initiated litigation to seek compliance with the issued grading permit and theprovisionsoftheChanhassenCityCode.As part of the legal process,the applicant wishes to exhaust all administrativeappealsbeforetrial.The applicant applied for building and zoning permits for the walls in February of 2020.CityEngineerHowleysubsequentlydeniedtheapplicant’s request to include two of the retaining walls in an encroachment agreement.These two retained walls are located within the drainage and utilities easement.City Engineer Howley requestedthattheyberemoved,and the property be regraded in a manner consistent with the approved grading permit.Theapplicanthasnotcompliedwiththisrequest.The applicant is appealing this denial.The applicant indicated that the denial is unreasonable and unfair.Theapplicantassertsthatthewallwasbuiltinitslocationbyathird-party contractor,that the walls do not interfere with the useorintentofthedrainageandutilityeasements,and that requiring their removal the grading of the property would createanunreasonableandunnecessaryhardshipforthehomeowner.Staff’s position is that City Engineer Howley’s denial of the requested encroachment agreement is necessitated bythefactthattheretainingwallsinquestionhavealteredtheproperty’s drainage in a manner inconsistent with theapprovedgradingplantothedetrimentofneighboringproperties.Staff notes that despite informing the homeowner in 2016and2017thatpermitswouldberequiredtorelocateorinstallnewretainingwalls,the applicant did not file any permits until
after the walls were completed and legal action was initiated.Since the applicant knowingly had walls installed without
the required permits,the hardship is self-inflicted,and staff recommends that the Planning Commission affirm the City
Engineer’s decision and deny the requested variance request.
A full discussion can be found in the attached staff report.
APPLICANT
Larry D and Mary J Synstelien 6893 Highover Drive Chanhassen.MN 55317
SITE INFORMATION
PRESENT ZONING:RSF”Single Family Residential District
LAND USE:Residential Low Density
ACREAGE:52 acres
DENSITY:NA
APPLICATION REGULATIONS
Chapter 7,Article III,Excavating,Mining,Filling and Grading
Chapter 20,Article II,Division 1,Generally
Section 20-28.-Board of appeals and adjustments
Chapter 20,Article II,Division 1,Generally
Section 20-29.-Board of appeals and adjustments variance and appeal procedures
Chapter 20,Article II,Division 3,Variances
Chapter 20,Article II,Division 4,Non-conforming Uses
Chapter 20,Article XII,RSF”Single-Family Residential District
Section 20-615,Lot Requirements and Setbacks.
Chapter 20,Article XXIII,Division 1,Generally
Section 20-908,Yard regulations
Chapter 20,Article XXIII,Division 5,Fences and Walls
Section 20-1019,Location
Chapter 20,Article XXIII,Division 5,Fences and Walls
Section 20-1025,Retaining Walls
BACKGROUND
Staff started working with the appellant on their grading project in August of 2016 after neighborhood complaints
brought the situation to staff’s attention.Early on in the process,the applicant was made aware that relocating existing
walls or building new walls would require permits from the city.In an email exchange with staff,the applicant was also
made aware of the existence and location of their property’s drainage and utilities easements and that retaining walls
could not be placed in that areas.The applicant then modified the proposed grading plan to minimize the encroachment
of drain tile into the drainage and utilities easement and submitted a plan showing all retaining walls clear of the drainage
and utilities easement.
Subsequent inspections throughout 2017 found that the property had not been graded to plan and that numerous
retaining walls not shown on the grading plan had been constructed,some within the city’s drainage and utilities
easements.In November of 2017,staff requested a survey to verify the location and extent of encroachment into the
city’s drainage and utilities easements.In 2019,after multiple requests and the initiation of legal action,the applicant
provided the city with a survey showing retaining walls encroaching into the city’s drainage and utilities easements in
seven places.Four of these walls were new walls for which no permit had been applied,despite the applicant being
informed and acknowledging that all new or relocated retaining walls would require a permit.
In April of 2019,the applicant first applied for an after-the-fact zoning permit and encroachment agreement for the
retaining walls.Staff requested additional information and on February 12,2020,determined that two of the seven
retaining walls,walls F”and I”interfered with the function of the city’s drainage and utilities easement and would need
PLANNING COMMISSIONSTAFFREPORTTuesday,August 18,2020SubjectConsideran Appeal of the City's Denial of an Encroachment Agreement for Retaining WallsandVariancesfromtheCity's Prohibition on Locating Structures within Drainage andUtilityEasementslocatedat6893HighoverDriveSectionPUBLICHEARINGSItemNo:C.1.Prepared By MacKenzie Young-Walters,AssociatePlanner File No:PROPOSED MOTION:“The Chanhassen Board of Appeals and Adjustments affirms City Engineer Howley’s partial denial oftheencroachmentagreementanddeniesthevariancerequesttoallowretainingwallstobelocatedwithin thedrainageandutilityeasement,and adopts the attached Findings of Facts and Decision.”SUMMARY OFREQUESTOnOctober4,2016,the city issued a grading permit for the construction of a berm and installation of drain tile at6893HighoverDrive.During subsequent inspections during 2017,staff determined that retaining walls had been built onthepropertywithouttheproperpermitsandthatthegradingdoneonthepropertywasnotconsistentwiththeissuedgradingpermit.In 2018,the city initiated litigation to seek compliance with the issued grading permit and theprovisionsoftheChanhassenCityCode.As part of the legal process,the applicant wishes to exhaust all administrativeappealsbeforetrial.The applicant applied for building and zoning permits for the walls in February of 2020.CityEngineerHowleysubsequentlydeniedtheapplicant’s request to include two of the retaining walls in an encroachment agreement.These two retained walls are located within the drainage and utilities easement.City Engineer Howley requestedthattheyberemoved,and the property be regraded in a manner consistent with the approved grading permit.Theapplicanthasnotcompliedwiththisrequest.The applicant is appealing this denial.The applicant indicated that the denial is unreasonable and unfair.Theapplicantassertsthatthewallwasbuiltinitslocationbyathird-party contractor,that the walls do not interfere with the useorintentofthedrainageandutilityeasements,and that requiring their removal the grading of the property would createanunreasonableandunnecessaryhardshipforthehomeowner.Staff’s position is that City Engineer Howley’s denial of the requested encroachment agreement is necessitated bythefactthattheretainingwallsinquestionhavealteredtheproperty’s drainage in a manner inconsistent with theapprovedgradingplantothedetrimentofneighboringproperties.Staff notes that despite informing the homeowner in 2016and2017thatpermitswouldberequiredtorelocateorinstallnewretainingwalls,the applicant did not file any permitsuntilafterthewallswerecompletedandlegalactionwasinitiated.Since the applicant knowingly had walls installedwithouttherequiredpermits,the hardship is self-inflicted,and staff recommends that the Planning Commission affirm theCityEngineer’s decision and deny the requested variance request.A full discussion can be found in the attached staff report.APPLICANTLarryDandMary J Synstelien 6893 Highover Drive Chanhassen.MN55317SITEINFORMATIONPRESENTZONING:RSF”Single Family ResidentialDistrictLANDUSE:Residential LowDensityACREAGE:52 acresDENSITY:NAAPPLICATIONREGULATIONSChapter7,Article III,Excavating,Mining,Filling andGradingChapter20,Article II,Division 1,GenerallySection20-28.-Board of appeals andadjustmentsChapter20,Article II,Division 1,GenerallySection20-29.-Board of appeals and adjustments variance and appealproceduresChapter20,Article II,Division 3,VariancesChapter20,Article II,Division 4,Non-conformingUsesChapter20,Article XII,RSF”Single-Family ResidentialDistrictSection20-615,Lot Requirements and Setbacks.Chapter 20,Article XXIII,Division 1,GenerallySection20-908,YardregulationsChapter20,Article XXIII,Division 5,Fences andWallsSection20-1019,LocationChapter20,Article XXIII,Division 5,Fences andWallsSection20-1025,RetainingWallsBACKGROUNDStaffstartedworkingwiththeappellant on their grading project in August of 2016 after neighborhoodcomplaintsbroughtthesituationtostaff’s attention.Early on in the process,the applicant was made aware that relocatingexistingwallsorbuildingnewwallswouldrequirepermitsfromthecity.In an email exchange with staff,the applicant wasalsomadeawareoftheexistenceandlocationoftheirproperty’s drainage and utilities easements and that retainingwallscouldnotbeplacedinthatareas.The applicant then modified the proposed grading plan to minimize theencroachmentofdraintileintothedrainageandutilitieseasementandsubmittedaplanshowingallretainingwallsclearofthedrainageandutilitieseasement.Subsequent inspections throughout 2017 found that the property had not been graded to plan and thatnumerousretainingwallsnotshownonthegradingplanhadbeenconstructed,some within the city’s drainage andutilitieseasements.In November of 2017,staff requested a survey to verify the location and extent of encroachment intothecity’s drainage and utilities easements.In 2019,after multiple requests and the initiation of legal action,theapplicantprovidedthecitywithasurveyshowingretainingwallsencroachingintothecity’s drainage and utilities easementsinsevenplaces.Four of these walls were new walls for which no permit had been applied,despite the applicantbeinginformedandacknowledgingthatallneworrelocatedretainingwallswouldrequireapermit.
In April of 2019,the applicant first applied for an after-the-fact zoning permit and encroachment agreement for the
retaining walls.Staff requested additional information and on February 12,2020,determined that two of the seven
retaining walls,walls F”and I”interfered with the function of the city’s drainage and utilities easement and would need
to be removed.Subsequent zoning and building permits submitted for the walls on February 18,2020,were denied
due the presence of these walls within the easements.
On July 17,2020,the homeowner filed an appeal of the city’s decision to deny the encroachment agreement and
requested a variance from the provision of the City Code that prohibits the location of structures within the drainage
and utilities easement.
A complete timeline can be found in the attached staff report.
RECOMMENDATION
Staff recommends the Planning Commission,acting as the Board of Appeals and Adjustments,affirm City Engineer
Howley’s partial denial of the encroachment agreement and deny the variance request to allow the retaining walls to be
located within the drainage and utilities easement,and adopt the attached Findings of Fact and Decision.
ATTACHMENTS:
Staff Report
Findings of Fact and Decision Denial)
Development Review Application
Appeal Letter
Appeal Narrative
Lot Survey
Subdivision Grading
Building Department Memo
Engineering Memo
Oct-Sept Grading Permit Email
Approved Grading Permit
Affidavit of Mailing
CITY OF CHANHASSEN
PC DATE: August 18, 2020
CC DATE: September 14, 2020
REVIEW DEADLINE: September 15, 2020
CASE #: PC 2020-15
BY: MYW, EH, ET, SF
SUMMARY OF REQUEST:
The applicant is appealing the administrative decision to partially deny a requested encroachment
agreement by City Engineer Howley and requesting a variance to allow the retaining walls in
question to be located within the city’s drainage and utilities easement.
LOCATION: 6893 Highover Drive
APPLICANT: Larry and Mary Synstelien
6893 Highover Drive
Chanhassen. MN 55317
PRESENT ZONING: “RSF” – Single Family Residential District
2040 LAND USE PLAN: Residential Low Density
ACREAGE: .52 acres DENSITY: NA
LEVEL OF CITY DISCRETION IN DECISION-MAKING:
When deciding an appeal, the city has the discretion to determine whether or not an error was
made in any order, requirement, decision, or determination by city staff in the enforcement of the
Zoning Ordinance. The city has a very high level of discretion with an appeal because the
appellant is alleging an error occurred. This is a quasi-judicial decision.
The city’s discretion in approving or denying a variance is limited to whether or not the proposed
project meets the standards in the Zoning Ordinance for a variance. The city has a relatively
high level of discretion with a variance because the applicant is seeking a deviation from
established standards. This is a quasi-judicial decision.
Notice of this public hearing has been mailed to all property owners within 500 feet.
PROPOSAL/SUMMARY
On October 4, 2016, the city issued a grading permit for the construction of a berm and
installation of drain tile at 6893 Highover Drive. During subsequent inspections during 2017,
PROPOSED MOTION:
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, and adopts the attached Findings of Facts
and Decision.”
6893 Highover Drive
August 18, 2020
Page 2
staff determined that retaining walls had been built on the property without the proper permits
and that the grading done on the property was not consistent with the issued grading permit. In
2018, the city initiated litigation to seek compliance with the issued grading permit and the
provisions of the Chanhassen City Code. As part of the legal process, the applicant wishes to
exhaust all administrative appeals before trial. The applicant applied for building and zoning
permits for the walls in February of 2020. City Engineer Howley subsequently denied the
applicant’s request to include two of the retaining walls in an encroachment agreement. These
two retained walls are located within the drainage and utilities easement. City Engineer Howley
requested that they be removed, and the property be regraded in a manner consistent with the
approved grading permit. The applicant has not complied with this request.
The applicant is appealing this denial. The applicant indicated that the denial is unreasonable and
unfair. The applicant asserts that the wall was built in its location by a third-party contractor, that
the walls do not interfere with the use or intent of the drainage and utilities easements, and that
requiring there removal the grading of the property would create an unreasonable and
unnecessary hardship for the homeowner.
Staff’s position is that City Engineer Howley’s denial of the requested encroachment agreement
is necessitated by the fact that the retaining walls in question have altered the propert y’s drainage
in a manner inconsistent with the approved grading plan to the detriment of neighboring
properties. Staff notes that despite informing the homeowner in 2016 and 2017 that permits
would be required to relocate or install new retaining walls, the applicant did not file any permits
until after the walls were completed and legal action was initiated. Since the applicant knowingly
had walls installed without the required permits, the hardship is self-inflicted, and staff
recommends that the Planning Commission affirm the City Engineer’s decision and deny the
requested variance request.
APPLICABLE REGULATIONS
Chapter 7, Article III, Excavating, Mining, Filling and Grading
Chapter 20, Article II, Division 1, Generally
Section 20-28.- Board of appeals and adjustments
Chapter 20, Article II, Division 1, Generally
Section 20-29.- Board of appeals and adjustments variance and appeal procedures
Chapter 20, Article II, Division 3, Variances
Chapter 20, Article II, Division 4, Non-conforming Uses
Chapter 20, Article XII, “RSF” Single-Family Residential District
Section 20-615, Lot Requirements and Setbacks.
Chapter 20, Article XXIII, Division 1, Generally
Section 20-908, Yard regulations
Chapter 20, Article XXIII, Division 5, Fences and Walls
Section 20-1019, Location
Chapter 20, Article XXIII, Division 5, Fences and Walls
Section 20-1025, Retaining Walls
6893 Highover Drive
August 18, 2020
Page 3
BACKGROUND
General
In July of 1999, the city issued a permit to construct a house on the property.
Abbreviated Case History
On August 15, 2016, staff received a complaint about grading work being done on the property
without erosion controls.
On August 16, 2016, staff inspected the property and determined that grading in excess of 50
cubic yards was being conducted without a grading permit or any form of erosion control.
On August 17, 2016, staff sent homeowners a letter informing them of the city’s permit
requirements and requiring them to cease work and apply for the required permits. This letter
specifically noted that the construction of retaining walls required a permit.
On August 19, 2016, homeowner called staff in response to the August 17, 2016 letter. The
homeowner explained the scope of work and landscaping. Since no new walls were proposed
staff informed him that he needed a grading permit.
On August 22, 2016, homeowner called staff to discuss lot cover and a potential patio. Staff
confirmed that given the proposed scope of work only a grading permit would be required.
From August 23 to September 12, 2016, staff received numerous complaints about the property.
Staff attempted to contact the homeowner by phone and three letters to address lack of erosion
control and grading permit. The third letter sent September 12th gave the homeowner until
September 16th to establish erosion control, noting that after this date the situation would be
referred to the City Attorney.
On September 13, 2016, the homeowner contacted staff and expressed an intent to comply with
ordinances. Email dated September 13, 2016, from MacKenzie W. informing other staff
members of the details of his conversation with the homeowner notes “That his current scope of
work would not trigger a zoning permit (arguably his “repairs” on the retaining walls might, but
we can figure out what he is doing there from the grading permit and I wanted to focus him on
the above items). He is not currently planning on installing a patio or other structures and says
the walls will be the exact same as they were, just repaired.”
On September 15, 2016, erosion control was established on the site.
On September 26, 2016, a draft grading plan was submitted.
On September 26, 2016, staff spoke with the homeowner and explained what would be required
for a zoning permit. In an email dated September 26, 2016, the homeowner acknowledged that
6893 Highover Drive
August 18, 2020
Page 4
he would apply for a zoning permit for a patio and boulder wall repairs and relocation once the
grading permit was finalized.
On September 27, 2016, staff sent the homeowner notes on the proposed grading plan stating
that the proposed retaining walls could not extend into the drainage and utility easement.
On October 3, 2016, the final version of the grading permit was submitted.
On October 4, 2016, staff informed the homeowner that the grading permit was ready to be
issued pending their signature and payment of fees.
On October 7, 2016, the homeowner signed the permit.
On November 9, 2016, staff emailed the homeowner to inquire about status of zoning permit.
Note that despite the fact that a grading permit had been issued, a zoning permit would be
required if the property hardcover changed or if the location of any retaining wall was changed.
On November 10, 2016, the applicant stated that he would call in the next day or two to discuss
zoning permits.
From November to 11, 2016 to April 9, 2017, staff sent multiple emails requesting a zoning
permit be submitted and noting that at the very least, a permit would be needed for the new
retaining wall location. During this period, staff received multiple complaints about the state of
the property, performed several inspections, and notified the homeowner of various violations.
The grading permit was found to have expired and was subsequently extend to June 15, 2017.
On April 10, 2017, the contractor hired by homeowner contacted staff to let the city know they
would be starting work to finish the remaining grading activities.
On May 17, 2017, staff finished their review of a proposed deck. No retaining walls were shown
or approved as part of the deck plan.
From June 23 to July 25, 2017, staff received multiple complaints about the site and contacted
the applicant to ensure he was aware of his obligation to keep the debris off the street during
construction. Additionally, the homeowner was informed that the grading permit had expired.
On July 26, 2017, the homeowner requested that grading permit be extended as a new egress
door and deck were being constructed with valid permits. None of these permits showed
retaining walls.
On September 18, 2017, the city issued a stop work order due to an enclosure being built under
the deck and presence of stairs not indicated on the deck plan.
On September 25, 2017, staff sent a notice of noncompliance for erosion control requiring the
area be restored by September 29, 2017.
6893 Highover Drive
August 18, 2020
Page 5
On September 27, 2017, staff discussed the enclosure under the deck with the contractor and
indicated that since it would interfere with lateral movement of water, it would be considered lot
cover, and a permit would not be issued.
On October 4, 2017, staff sent a second notice of noncompliance for erosion control requiring
deficiencies to be addressed by October 8, 2017.
On October 24, 2017, staff performed a final inspection of the property to verify compliance
with the grading permit. Numerous elements were observed not to comply with the approved
grading plan and a meeting was subsequently scheduled to discuss these issues.
On October 25, 2017, staff met with homeowner and gave a deadline of November 6, 2017 for
the homeowner to provide a survey showing all improvements and elevations on the property.
During the meeting, it was noted that based on field inspections, retaining walls had been built
without permits and grading did not appear to match plans.
From November 9, 2017, to January 23, 2018, staff attempted to obtain a survey of the property
from the homeowner.
On January 24, 2018, staff referred the case to the city attorney for enforcement.
From January 25, 2018, to February 3, 2019, the respective attorney’s and city staff exchanged
numerous correspondences regarding the facts of the case and the city’s requirements.
On February 4, 2019, the homeowner’s attorney provided staff with a survey of the property.
On February 6, 2019, staff met with the homeowner’s attorney to discuss needed revisions for
the provided survey. Of particular concern was the height of the retaining walls shown on the
survey.
On March 19, 2019, staff received a revised copy of the survey.
On April 2, 2019, the homeowner’s attorney applied for an encroachment agreement, grading
permit, and zoning permit. Staff determined there was insufficient information to evaluate a
zoning permit and encroachment agreement and subsequently requested additional information.
Regarding the grading permit, staff indicated that a new grading permit was not required and that
the owner needed to resolve the outstanding issues with the existing grading permit.
On April 15, 2019, the city attorney made the homeowner’s attorney aware that the property had
outstanding grading issues, that several retaining walls would need to be removed, that
engineered designs were required for walls exceeding 4 feet in height, and that zoning permits
were required for walls under 4 feet in height, and that several sections of sidewalk damaged
during construction needed to be repaired.
6893 Highover Drive
August 18, 2020
Page 6
From April 16, 2019, to February 11, 2020, the respective attorneys and city staff exchanged
numerous correspondences regarding the facts of the case the city’s requirements.
On February 12, 2020, the City Engineer partially denied the requested encroachment agreement.
On February 18, 2020, the homeowner’s attorney applied for zoning permits for the retaining
walls under 4 feet in height and building permits for the retaining walls over 4 feet in height.
On February 19, 2020, staff denied the zoning and building permits due to the presence of
retaining walls within the city’s drainage and utilities easements.
On March 3, 2020, staff sent the homeowner’s attorney the materials necessary to appeal the
city’s denial of the encroachment agreement.
On March 19, 2020, the homeowner’s attorney requested a delay to the appeal due to Covid-19.
The city assented with the condition that the appeal would take place within 30 days of the end
of the state of emergency.
On May 21, 2020, the homeowner’s attorney indicated that they would like to file the appeal.
On July 8, 2020, the city attorney informed the homeowner’s attorney that if an appeal were not
filed by July 31, 2020, the homeowner would forfeit their right to appeal.
On July 17, 2020 the homeowner’s attorney filed the appeal.
SITE CONSTRAINTS
Zoning Overview
The property is a corner lot zoned Single-Family Residential District and is partially located
within the shoreland management district. This zoning classification requires lots to be a
minimum of 15,000 square feet, have front and rear yard setbacks of 30 feet, side yard setbacks
of 10 feet, and limits parcels to a maximum of 25 percent lot cover. Corner lots are required to
meet the required 30-foot front yard setback along all street frontages, but the remaining lot lines
are subject to side yard setbacks. Residential structures are limited to 35 feet in height.
The lot is 22,744 square feet and has 5,895 square feet (25.92 percent lot cover). Staff believes
the lot cover to be pre-existing. Three pre-existing non-conforming retaining walls encroach into
the city’s north and west drainage and utilities easements. Four new retaining walls were
constructed without permits within the city’s eastern, southern, and western drainage and utility
easements. The deck was built in 2017 encroaching 1 foot into the city’s eastern drainage and
utility easement. The driveway has a pre-existing non-conforming width of 26 feet at the
property line. The house and other features appear to meet all other requirements of the City
Code.
6893 Highover Drive
August 18, 2020
Page 7
Bluff Creek Corridor
The property is not encumbered by the Bluff Creek Overlay District.
Bluff Protection
There are not bluffs on the property.
Floodplain Overlay
This property is not within a floodplain.
Shoreland Management
The property is located within a Shoreland Protection District; however, the property is not
riparian so the only impact is that the property is limited to 25 percent lot cover and is not
entitled to use pervious pavement systems to increase its lot cover by 5 percent.
Wetland Protection
There is not a wetland located in the development site.
NEIGHBORHOOD
Highover
The plat for this area was recorded in January of 1998. Most
elements of the city’s current zoning code were in place and in
their current form at that time, with the largest change being the
requirement for zoning permits for impervious surfaces, small
accessory structures, and retaining walls under four feet in
height which were added between 2004 and 2007. Due to the
lack of zoning permit requirements during the subdivision’s
early years, some properties have non-conforming lot cover
and/or retaining walls; however, the majority of properties
appear to comply with current zoning standards.
Variances within 500 feet:
There are no known variances within 500 feet of the subject
property.
ANALYSIS
6893 Highover Drive
August 18, 2020
Page 8
Historic Overview
Staff started working with the
appellant on their grading
project in August of 2016
after neighborhood
complaints brought the
situation to staff’s attention.
Early on in the process, the
applicant was made aware
that relocating existing walls
or building new walls would
require permits from the City.
In an email exchange with
staff, the applicant was also
made aware of the existence
and location of their property’s drainage and utilities easements and that retaining walls could
not be placed in that areas. The applicant then modified the proposed grading plan to minimize
the encroachment of drain tile into the drainage and utilities easement and submitted a plan
showing all retaining walls clear of the drainage and utilities easement.
Subsequent inspections
throughout 2017 found that the
property had not been graded to
plan and that numerous retaining
walls not shown on the grading
plan had been constructed, some
within the city’s drainage and
utilities easements. In November
of 2017, staff requested a survey
to verify the location and extent
of encroachment into the city’s
drainage and utilities easements.
In 2019, after multiple requests
and the initiation of legal action,
the applicant provided the city
with a survey showing retaining
walls encroaching into the city’s drainage and utilities easements in seven places. Four of these
walls were new walls for which no permit had been applied, despite the applicant being informed
and acknowledging that all new or relocated retaining walls would require a permit.
6893 Highover Drive
August 18, 2020
Page 9
In April of 2019, the applicant first
applied for an after-the-fact zoning
permit and encroachment agreement for
the retaining walls. Staff requested
additional information and on
February 12, 2020, determined that two
of the seven retaining walls, walls “F”
and “I”, interfered with the function of
the city’s drainage and utility easement
and would need to be removed.
Subsequent zoning and building permits
submitted for the walls on February 18,
2020, were denied due the presence of
these walls within the easements.
On July 17, 2020, the homeowner filed
an appeal of the city’s decision to deny
the encroachment agreement and
requested a variance from the provision of the city code that prohibits the location of structures
within the drainage and utilities easement.
Appeal
The placement of retaining walls within drainage and utilities easements are regulated by two
sections of the City Code. The relevant sections read as follows:
Section 20-908(6). - Yard regulations:
6) The placement of any structure within easements is prohibited, except for those structures
specified herein. Fences, retaining walls, nonstructural fire pits, sidewalks, pathways, and
patios not integral to the principal structure (the first ten feet adjacent to the principal
structure shall be considered integral), 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. A
driveway or sidewalk from the street to the house crossing drainage and utility easements at
the front of the property are exempt from this requirement.
Section 20-1019(a). - Location:
Generally. All fences and retaining walls shall be located entirely upon the property of the
fence or retaining wall owner unless the owner of the adjoining property agrees, in writing, that
said fence or retaining wall may be erected on the property line of the respective properties.
Such agreement shall be submitted at the time of building permit application. Encroachment
into a city easement shall require an encroachment agreement between the property owner and
the city. Fences shall not be placed within the public right-of-way.”
6893 Highover Drive
August 18, 2020
Page 10
The applicant applied for an encroachment agreement to legitimize the placement of six retaining
walls within the drainage and utilities easement, two of these walls were pre-existing and four
were newly constructed. The applicant had neither applied for nor received permits for the four
newly constructed walls, one of which encroaches into the easement in two places. Staff
reviewed the location of the proposed wall and their impact on the drainage and utilities
easement and denied the requested encroachment agreement for one wall and a section of
another wall, both of which interfered
with the easement’s drainage
function. The encroachment
agreement also requested the city
approve a section of deck encroaching
approximately 1 foot into the drainage
and utility easement and a future
fence. Staff approved the deck
encroachment, but denied the fence as
it is not city policy to issue blanket
encroachment agreements for future
projects. The homeowner believes
that the City Engineer’s determination
that the walls interfere with the
function of the easement is incorrect
and is appealing the denial of the
encroachment agreement for walls
F” and “I”.
Section 20-28(b)(1) of the City Code empowers that the Planning Commission, acting as the
Board of Appeals and Adjustments:
To hear and decide appeals where it is alleged that there is an error in any order, requirement,
decision or determination made by a city administrative office in the enforcement of this
chapter.”
The homeowner’s appeal states that the City Engineer did not provide a rational for denying the
requested encroachment agreement and outline reasons why they feel the denial was in error.
For wall “F”, their stated reasons for believing the determination to be in error are:
1. That there are no utilities within the drainage and utilities easement;
2. Since the wall only encroaches one foot into the easement, the city has a sufficient
amount of unobstructed drainage and utility easement to serve its function;
3. That potential conflicts between the wall and use of the easement can be resolved
through an encroachment agreement;
4. That the wall is essential the functionality and serviceability of the newly installed
walkout door, an emergency exit door, and deck;
5. And, that the City Code does not require the demolition of the wall.
6893 Highover Drive
August 18, 2020
Page 11
For wall “I”, their stated reasons for believing the determination to be in error are:
1. Water previously drained onto the property to the east, and this is not a new condition
created by the appellant; and,
2. The installed French drain system does not adversely impact adjacent properties because
it prevents the water from being diverted onto adjacent properties, instead conveying it to
the street.
Staff will respond to each of the points above individually; however, it should be noted that
under Section 20-908(6), city staff is not required to grant an encroachment agreement. The
section merely allows for the possibility of structures encroaching into the drainage and utility
easement if staff determines that they do not interfere with the intended function of the easement.
The section explicitly grants staff discretion in granting or denying encroachment agreements.
Permits are required for structures that could impact the drainage and utility easements precisely
to allow staff to evaluate a structure’s potential impact before it is built and to prevent the
construction of features for which an encroachment agreement should not be granted. Despite the
lack of permits and structures, i.e. the deck not being constructed in the location stipulated by
their building permit, staff performed a good-faith evaluation of the walls and granted six of nine
requested structural encroachments and noted that additional information would be required to
evaluate the proposed fence.
Regarding the applicant’s contention that the denials of two sections of wall was in error, a
summary of staff’s response is provided below each point in italics. A more full discussion can
be found in the attached memos from the city’s Engineering and Building Departments.
For wall “F”, their stated reasons for believing the determination to be in error are:
1. That there are no utilities within the drainage and utility easement;
Drainage and utilities easements exist both to provide a location for the installation of utilities
and to facilitate drainage. The presence or absence of utilities is not the sole determiner of the
function of the easement; thus, when staff reviews the location of proposed structures within
drainage and utility easements the review includes how drainage will be impacted. In this case,
the easement does not have utilities but does serve an important drainage function. Wall “F’s”
encroachment into the drainage and utilities easement alters the area’s drainage and diverts
water onto the adjunct property. Staff’s decision to deny the encroachment agreement for wall
F” was based on its interference with easements drainage function, not its utilities function.
It should also be noted that this drainage and utility easement does contain utilities for
Mediacom, CenturyLink, and Xcel Energy, and that during the unpermitted grading on the
property, a communication line for neighboring property was severed. Staff notes this as a
factual correction to the above statement.
6893 Highover Drive
August 18, 2020
Page 12
2. Since the wall only encroaches one foot into the easement, the city has a sufficient
amount of unobstructed drainage and utilities easement to serve its function;
At its maximum extent, wall “F” encroaches two feet five inches into the drainage and utilities
easement, as shown on the survey provided by the applicant to city staff. This encroachment
combined with the grading changes associated with its placement and construction alters the
easements drainage pattern in manner that diverts drainage to the neighboring property. This
alteration of the intended function of the drainage and utility easement is one of the reasons staff
denied the requested encroachment agreement.
3. That potential conflicts between the wall and use of the easement can be resolved
through an encroachment agreement;
An encroachment agreement would not alter wall “F’s” impact on the drainage and utility
easement. Wall “F” currently has a detrimental effect on the functionality of the drainage and
utility easement, and the existence of an encroachment agreement would not correct that.
Additionally, the City Code does not allow encroachment agreements to be issued for structures
that interfere with the function of a drainage and utility easement. Since the wall interferes with
the drainage function of this easement, an encroachment agreement cannot be issued.
4. That the wall is essential the functionality and serviceability of the newly installed
walkout door, an emergency exit door, and deck;
The east walkout door is not an emergency exit zone as the only required egress door for the
property is the front door to the house. The east walk out door could have been installed without
the retaining wall by grading the yard to accommodate its placement. Had the wall been
included on the submitted building permit application, staff would have required it to be
relocated to be clear of the easement. While relocating the wall to be clear of the easement will
necessitate regrading, it will not negate functionality and serviceability of the door.
5. And, that the City Code does not require the demolition of the wall.
As noted above, the City Code does not permit the city to issue encroachment agreements that
interfere with the function of drainage and utility easements. As the city has determined this wall
interferes with the drainage function of the easement, an encroachment agreement cannot be
issued. Since an encroachment agreement cannot be issued, the wall cannot remain in the
easement and must be relocated to comply with City Code.
For wall “I”, their stated reasons for believing the determination to be in error are:
1. Water previously drained onto the property to the east and this is not a new condition
created by the appellant; and,
6893 Highover Drive
August 18, 2020
Page 13
Due to work in the property commencing without a permit, no existing conditions survey is
available. Staff used the Highover Subdivision’s grading plan to determine the drainage pattern
and intended function of the drainage and utility easement. Based on this information, staff
determined that the grades did in fact allow for drainage to be conveyed by the drainage and
utility easements. As built, wall “I” extends the width of the drainage and utility easement, fully
blocking and obstructing the overland flow of drainage and intensifying the amount of drainage
being routed to adjacent properties. It should also be noted, that the approved grading permit,
which was not followed, shows the intended conveyance of drainage via the drainage and utility
easement. Due to its interference with the intended and approved function of the drainage and
utility easement, staff was required by City Code to deny the encroachment agreement.
2. The installed French drain system does not adversely impact adjacent properties because
it prevents the water from being diverted onto adjacent properties, instead conveying it to
the street.
During optimal conditions, the French drain system and drain tile can effectively convey water
directly to the street and prevent it from being diverted onto adjacent properties; however, it will
not prevent all overland water flow from entering adjacent properties since the approved
grading plan was not followed. Furthermore, during the winter, these systems and the ground
around them freeze. This freezing prevents the underground conveyance of water and requires a
viable overland drainage route. As was discussed above, wall “I” cuts off the overland route
that the drainage and utilities easement is intended to create and preserve. Similarly, French
drain systems can become plugged over time and shallow underground drainage pipes can be
crushed. Both of these circumstances can prevent the French drain system from functioning as
designed. For the reasons both overland drainage needs to be provided for and the presence of
the French drain system does not mitigate wall “I” impact on the function of the drainage and
utilities easement.
6893 Highover Drive
August 18, 2020
Page 14
Variance
The applicant is also requesting a variance from the City Code’s prohibition on locating
structures within drainage and utilities easements. Staff understands this request to mean that if
the Planning Commission determines that the City Engineer did not make an error in denying the
encroachment agreement, the applicant would like to receive a variance to permit the walls to
remain within the drainage and utility easement.
The applicant states that the variance should be granted for the following reasons:
1. The retaining walls facilitate the location of a sidewalk and landscaping, both elements
are reasonable uses for a residential property. The retaining walls do not negatively
impact adjacent properties.
2. The applicant is not responsible for the location of the retaining wall. It was placed in the
drainage and utilities easement by their contractor without the applicant realizing there
would be an issue.
3. The retaining walls are not highly visible from the street and do not change the essential
character of the area.
Section 20-58 outlines six criteria that all must be met for the city to issue a variance. Staff has
listed the criteria below and stated in italics staff’s application of the criteria to the case.
1) 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.
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 of utilities and to manage stormwater
drainage. The location of the two retaining walls within the drainage and utility easements in
question prevent the drainage and utilities easements from serving their drainage function
and redirect 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).
2) 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.
6893 Highover Drive
August 18, 2020
Page 15
Practical difficulties include, but are not limited to, inadequate access to direct sunlight for
solar energy systems.
The applicant had received an approved grading permit for a grading plan that effectively
managed the property’s stormwater without locating 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 within the drainage and utilities easement. The
applicant’s difficulty in complying with zoning code is not the result of the 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 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 comply with the
City Code.
3) That the purpose of the variation is not based upon economic considerations alone.
The applicant cites the expense involved in regarding 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.
4) The plight of the landowner is due to circumstances unique to the property not created by
the landowner.
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 was based and
approved. During these discussions, the landowner was made aware of the location of the
drainage and utilities easements, the restrictions on what could be placed within them, and
on the need for permits for new and/or relocated retaining walls. In response to this
information, the landowner revised elements of their grading plan to minimize the placement
of drain tile and other elements within the drainage and utilities easement and assured 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 their
contractor without the landowner understanding that there would be an issue; therefore, 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, staff 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
6893 Highover Drive
August 18, 2020
Page 16
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 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 legitimize improvements
installed in violation of City Code at the landowner’s request.
5) The variance, if granted, will not alter the essential character of the locality.
Staff agrees that the presence of retaining walls and the associated landscaping does not
alter the essential character of the neighborhood. Numerous properties in subdivision have
broadly similar retaining walls and landscaping features. These features are not aesthetically
incompatible with the area.
6) Variances shall be granted for earth-sheltered construction as defined in Minn. Stat. §
216C.06, subd. 14, when in harmony with this chapter.
This does not apply to this request.
RECOMMENDATION
Staff recommends the Planning Commission, acting as the Board of Appeals and Adjustments,
affirm City Engineer Howley’s partial denial of the encroachment agreement and deny the
variance request to allow the retaining walls to be located within the drainage and utility
easements, and adopts the attached Findings of Fact and Decision.
ATTACHMENTS
1. Findings of Fact and Decision
2. Development Review Application
3. Appeal Letter
4. Appeal Narrative
5. Survey
6. Subdivision Grading
7. Building Department Memo
8. Engineering Department Memo
9. Oct-Sept Grading Permit Email
10. Approved Grading Permit
11. Affidavit of Mailing of Public Hearing Notice
g:\plan\2020 planning cases\20-15 6893 highover drive var\staff report_6893 highover drive_pc_revised.docx
1
CITY 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
2
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
3
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.
4
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 18th day of August, 2020.
CITY OF CHANHASSEN
BY:
Steven Weick, Chairman
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7975 STONE CREEK DRIVE, SUTTE T2l}
CH.ANH]{SSEN. MINNESOTA 553T7
MARK W. KELLY
WILLIAM F. KELLY ( 1922.1995>
1952t 171-5977
FAX 471-9575
kellyl.wof lic.s@.io.coE
July 17,2O2O
Todd Gerhardt
City Manager
City of Chanhassen
7700 Market Boulevard
PO Box 147
Chanhassen, MN 55317
Re Larry Synstelien, Appeal to the Board ofAppeals and Adjustments
City of Chanhassen, Minnesota
Re: 6893 Highover Drive, Chanhassen, Minnesota Encroachment
Agreement
Dear Mr. Gerhardt:
I represent Joarr and Larry Synstelien.
Enclosed please find Appeal to the Board of Appeals and Adiustments by Joan
and Larry Synstelien. Synsteliens Appeal the February 12,2O2O decision of
Chanhassen Administrative Officer Charles J. Howley denying, in part,
issuance of an Encroachment Asreement. The Synsteliens also hereby make
Application for Variance, as needed, if needed, to permit an Encroachment
Agreement in conjunction herewith.
Please advise any errors or omissions, and we will address them
Thank you for your attention to this matter. We look forward to your advice on
when the hearing will be held.
Sincerely,
4
M W. Ke1l-v
MWK/tas
Enclosure
cc: Synstelien
APPEAL 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.
IofN
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. $462.357, Subd. 6
Reasonable Manner of Use
Appellants Synsteliens' planned manner ofuse ofhis residential property - a decorative
garden wall as located (above described) - is a reasonable manner ofuse ofa residential
propefiy in the applicable residential zone. The Block Wall is no more than 14" above grade,
decreasing to no more than 6" above grade on the easterly tip. With minimal block wall
visible above grade, and primarily visible ftom the Synstelien's backyard porch it makes no
noticeable visual presence and does not adversely impact the quiet and peaceful use and
enjoyment of adjacent residential properties. ln light ofthe new French drain, the wall's
easterly terminus, as buil! makes no measurable adverse impact on the property to the East.
Plieht of Aooellants
The plight ofAppellants Synstelien was created by his third-party contfactor. The Appellants
did not know the wall would be built in the City Drainage and Utility Easement. Mr. and
Mrs. Synstelien have no training or experience as builder or surveyor. Their plight is not of
their oun making. Rather, it is the product of design and construction decisions by a third-
party contractor relied upon to desigrr, locate, in the consauction of the garden wall.
of the Area
7
No Imoact on Essential Character
No Imnaat ooEgsiotial Cttrtctsr of ths Arsa
Tbc vaiuca if granls4 uiin nd changp thc e*seotial clrsacter of the locality. This is
bocauoc il is a corrnou lmdscaping anrnity,largely below grade md notvisible whcre tbc
gnde drops ald more u$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
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MEMORANDUM
TO: MacKenzie Walters, Assistant Planner
FROM: Eric Tessman, Building Official
DATE: July 28, 2020
SUBJ: Appeal of city’s denial of an Encroachment Agreement for
retaining walls within Drainage and Utility Easements and
variances from the city’s prohibition on locating structures within
Drainage and Utility Easements for a property located at 6893
Highover Drive. Zone Single-Family Residential District (RSF)
Planning Case: 2020-15
I have reviewed the request for the above appeal/variance and have the following
comments (my comments are specifically concerning discussion item F):
1. The claim that the block wall is essential to the functionality and
serviceability of the newly installed East walkout door is simply not true.
There are three reasons for this:
a. The east walkout door is not an emergency exit zone, the only
required egress door for this property is the front door to the house.
The need to have a walkout door in the basement is not required by
code, it is simply there for convenience.
b. the east walkout door could have been installed without the need to
build a retaining wall, the yard could have been just simply regraded
to make this occur
c. had the property owner indicated that he was intending to locate a
retaining wall within the easement on his permit for the east walkout
door, we would have informed him the the wall encroached into the
easement and advised him to relocate the wall out of the easement.
2. The building inspection department conducts inspections at the request of
either the contractor or the homeowner. The building department did
multiple inspections of the deck located on the property at the request of the
deck contractor. When we conduct our inspections of the deck, we are only
looking at building code requirements related to the deck. At no point did
the property owner request that the building department conduct an
inspection on a retaining wall, as there was no building permit obtained for
retaining walls until well after the retaining walls were constructed. The
building inspectors assumed that the walls were under four feet and were
being constructed under a zoning permit, which is not subject to inspections
by the building department.
Memorandum
To: MacKenzie Young-Walters, Associate Planner
From: Erik Henricksen, Project Engineer
CC: Charles Howley, PE, City Public Works Director/City Engineer
George Bender, PE, City Assistant City Engineer
Steve Ferraro, Construction Manager
Date: 8/6/2020
Re: Appeal to Denial of Encroachment Agreement for Retaining Walls
within D&U at 6893 Highover Drive – Planning Case 2020-15
The Engineering Department has reviewed the submitted appeal of the city’s denial of
Encroachment Agreements for retaining walls within Drainage and Utility Easements (D&U) for
the property located at 6893 Highover Drive (Planning Case 2020-15). The appellants are
requesting that the Chanhassen Board of Appeals and Adjustments overrule the decisions of
the Director of Public Works/City Engineer which denied the issuance of Encroachment
Agreements for unpermitted, newly constructed and in-place retaining walls within the D&U
and required their removals and the regrading associated with the removals. Furthermore, the
appellants are seeking variances, as needed, to City Code to permit the retaining walls remain
in place.
It is the conclusion of the Engineering Department that the retaining walls and the alterations
to surrounding grades altered the intended use of the D&U in regards to drainage and should
not be allowed. As built, the retaining walls have altered drainage patterns to route water
outside of the D&U and onto adjacent properties. One of the intended uses of a drainage and
utility easement is to provide a path between properties for stormwater drainage, and the
erection of structures such as retaining walls can create impediments to this purpose while
adversely altering drainage patterns. While seven other unpermitted, yet newly constructed
and in-place, encroachments in the D&U were approved, the two unpermitted, in-place
retaining walls were denied (Item “F” and Item “I” found in the 2/12/2020 denial letter) based
on the justification above. The following comments are responses directly related to the
appellant’s assertions regarding wall “F” and “I”:
For wall “F” their stated reasons for believing the determination to be in error are:
1. That there are no utilities within the drainage and utility easements.
Response: A Drainage and Utility easement’s intended use is not limited to the installation of
utilities. Drainage is also a factor on how the easement is used. Thus, when staff reviews for
the approval of structures or other objects to be placed within D&U’s, the review includes how
drainage and overland water flow during rain events will be impacted through the D&U. An
example is when fences are placed within the D&U, it is standard to have the following
language in the Encroachment Agreement: “The fence must allow water to pass under it, so as
not to impede overland water flow during rain events.” Wall “F”, as built, alters drainage by
encroaching into the D&U and diverting drainage onto adjacent property. Furthermore, there
are small utilities that utilize the D&U abutting the appellant’s property. Small utility pedestals
belonging to Mediacom, CenturyLink, and Xcel Energy are all located within the appellant’s
D&Us. Also, during the course of the unpermitted grading, a communication line for a
neighboring property was severed in the D&U. Therefore, staff believes its determination to
deny an Encroachment Agreement for wall “F” as it altered the intended use of the D&U is
correct.
2. Since the wall only encroaches one foot into the easement, the city has a sufficient
amount of unobstructed drainage and utilities easement to serve its function.
Response: Wall “F” encroaches up to two feet five inches into the D&U based on the provided
boundary topographic survey dated 3/19/19 by Rory L. Synstelien (License No. 44565) of
CivilSite Group. Wall “F”’s encroachment, coupled with the grade changes associated with its
construction, alters the drainage pattern to divert drainage to the neighboring property. This
alters the intended use of the D&U which is to convey overland water flow during rain events
between property lines. Therefore, staff believes its determination to deny an Encroachment
Agreement for wall “F” as it altered the intended use of the D&U is correct.
3. That potential conflicts between the wall and use of the easement can be resolved
through an encroachment agreement.
Response: Staff does not believe that an Encroachment Agreement would correct wall “F”’s
impact to the D&U, specifically as it relates to the alteration of the drainage pattern. While it
would allow the City to remove the wall and regrade the area to restore the D&U to its
intended use at the owner’s expense, an Encroachment Agreement in and of itself does not
correct the alteration of the drainage. Therefore, staff believes its determination to deny an
Encroachment Agreement for wall “F” as it would not correct the alteration of the intended use
of the D&U is correct.
4. That the wall is essential to the functionality and serviceability of the newly installed
walkout door, an emergency exit door, and deck.
Response: Engineering has no comment to this assertion as staff does not conduct reviews of
buildings.
5. That the City Code does not require the demolition of the wall.
Response: Chanhassen City Code § 20.908(6) specifically prohibits the placement of any
structure within an easement. Nevertheless, the property owner constructed a retaining wall in
the easement. The City Code does not need to specify that any unauthorized structure must be
demolished or removed. Since the placement of the retaining wall is prohibited by the City
Code, it must be removed from that location.
The City Code is clear that the structure is prohibited without an encroachment agreement, and
that encroachment agreements can only be issued for a structure that “does not alter the
intended use of the easement and at the discretion of the community development director or
designee.” Chanhassen City Code § 20.908(6). As previously outlined, the unpermitted wall “F”
alters the intended use of the D&U by diverting the drainage pattern and changing the grading
of the property. Therefore, staff determined that it is not appropriate to issue an Encroachment
Agreement. Since the wall has already been constructed without permit or authorization from
the City, staff believes its determination to deny an Encroachment Agreement for wall “F”, as it
altered the intended use of the D&U, and to seek the removal of the wall is correct.
For wall “I” their stated reasons for believing the determination to be in error are:
1. Water previously drained onto the property to the east, and this is not a new condition
created by the appellant.
Response: Since the work was not permitted, the property owner did not provide an existing
condition survey to the City prior to earthwork or alterations to the property for staff to review.
When staff received multiple complaints about the property and work being done, the City
conducted an on-site visit. The on-site visit showed the grade at that time was unobstructed
and was not diverting drainage to the east (see photos below). However, staff also reviewed
the Highover Subdivision’s grading plan to determine the drainage pattern and the intended
use of the D&U. Based on this review, staff determined that the grades did in fact allow for
drainage to pass between both property lines (the appellant’s east property line). Furthermore,
wall “I” as built, fully blocks and obstructs overland flows by extending the full width of the
D&U to the east property line, which only intensifies the amount of drainage being routed to
adjacent properties. Lastly, the approved grading permit has not been closed out due to the
grading not being performed as per the approved plan. This approved grading permit illustrates
that the intended use was to route drainage between the appellant’s eastern property line.
Therefore, staff believes its determination to deny an Encroachment Agreement for wall “I” as
it altered the intended use of the D&U is correct.
2. The installed French drain system prevents the water from being diverted onto adjacent
properties, instead conveying it to the street.
Response: While the French drain system and draintile does aide in diverting some stormwater
from rain events, it will not prevent all overland water flow from entering adjacent properties
as the approved grading plan (Permit #16-12) was not followed (intended to route drainage
between properties). Additional considerations and concerns staff had regarding the ability of
the private drainage system to accommodate all overland water flow were:
a) the drainage systems inlets become plugged, or covered with lawn debris & leaves
b) the shallow underground drainage pipes are crushed
c) during frozen conditions the entire draintile system would be plugged, which is entirely
installed within the frost zone (less than 3.5 foot depth)
d) the drainage system is connected via a “soft” connection to the city owned draintile at
the back of curb along Highover Trail, and if that connection becomes inundated with
sediment, roots or other obstructions the system would be plugged
Since the French drain system will not adequately route drainage in all circumstances, and it
alters the intended use of the D&U, staff believes its determination to deny an Encroachment
Agreement for wall “I” is correct.
1
Walters, MacKenzie
From:Ferraro, Steve
Sent:Tuesday, October 4, 2016 11:17 AM
To:larry synstelien
Cc:Joan synstelien; Walters, MacKenzie
Subject:RE: 6893 Highover Drive Earthwork Permit and Proposed Elevations
Follow Up Flag:Follow up
Flag Status:Completed
Larry,
This looks good now. You can stop in anytime to sign the written permits and submit payment for application fee of $50
and submit escrow of $500.
All paperwork is ready and waiting at the engineering desk. I will be out the rest of the week attending classes.
Thank you,
Steve Ferraro
Construction Manager
Engineering Tech IV
City of Chanhassen
7700 Market Boulevard
P.O. Box 147
Chanhassen, MN 55317
Office # 952-227-1166
Mobile # 763-286-1623
From: larry synstelien [mailto:larry.synstelien@gmail.com]
Sent: Monday, October 03, 2016 1:18 PM
To: Ferraro, Steve <SFerraro@ci.chanhassen.mn.us>
Cc: Joan synstelien <joan.synstelien@gmail.com>
Subject: Re: 6893 Highover Drive Earthwork Permit and Proposed Elevations
Steve,
Thanks for the feedback. Attached is the updated plan and below are responses to your comments.
Thanks again for your help.
Larry & Joan
On Tue, Sep 27, 2016 at 2:12 PM, Ferraro, Steve <SFerraro@ci.chanhassen.mn.us> wrote:
Larry,
2
Looking better and better. I have a couple things for you and then I think we are good.
Thank you for the help and input to improve the plan.
I have attached a survey of your property in pdf form for you to mark up where the boulder retaining wall are
going in. The thing to note here is they cannot extend into the drainage and utility e asement. You will need this marked
up for your zoning permit as well. Boulder walls are usually drawn as a series of small circles representing the boulders.
Layer added with lot survey and boulder retaining walls.
Note that while you are allowed to put draintile in the drainage and utility easement, it is still that and may be
disrupted in the future. It would be best to keep the draintile nearer the edge or outside of it if possible.
Adjusted drain tile as much as practical to avoid encroachment onto utility easement.
Also with the draintile. A suggestion: combine some of your draintile runs as a 4” pipe will carry a lot of water. You
do not need individual draintile runs for everything. If it were me I would combine two downspouts per 4” run of non-
perforated. Then combine all the perforated into one run and just TEE or WYE into the main 4” run. See the attached
marked up sheet. Again this is just a suggestion and you can put draintile as you have shown if you like.
Thank your for the suggestion. Combined perforated drain tile using WYE or TEE. Kept individual 4"
non=perforated drain tile for each drain spout due to run length, slope, roof area and drain spout size
Add two draintile yard boxes for yard drainage pick-up and they double as cleanouts. You can then run a garden
hose or whatever through it to make sure it’s clean or to unclog if it ever becomes plugged. We had discussed the one
on the other side of the plantings. Looking at the survey the is less than 0.5% of grade on that side and will be needed.
Added to yard boxes to drain tile layer
Right now I will start writing up the actual grading permit and should be able to have it done tomorrow. Make these
corrections and resend them back over. Then we would just need you or Joan to come in and pay the application fee
and security escrow.
Great! Thanks for getting the paperwork process started. Let us know the status and amount. We can
stop by anytime.
Looking forward to the next rendition.
Regards,
Steve Ferraro
3
Construction Manager
Engineering Tech IV
City of Chanhassen
7700 Market Boulevard
P.O. Box 147
Chanhassen, MN 55317
Office # 952-227-1166
Mobile # 763-286-1623
From: larry synstelien [mailto:larry.synstelien@gmail.com]
Sent: Tuesday, September 27, 2016 11:19 AM
To: Ferraro, Steve <SFerraro@ci.chanhassen.mn.us>
Cc: Joan synstelien <joan.synstelien@gmail.com>
Subject: Re: 6893 Highover Drive Earthwork Permit and Proposed Elevations
Steve,
Thanks for the feedback. The updated files are attached and responses are below.
Additional changes:
1) patio area material changed to similar gravel/rock as fire pit area
2) proposed elevations file contains separate layers (erosion control, grading elevations, rock areas, boulder
walls, drain tile routes, etc)
Please review and let us know of any additional changes you would like to see.
Thanks for your help.
4
Larry & Joan
On Mon, Sep 26, 2016 at 10:52 AM, Ferraro, Steve <SFerraro@ci.chanhassen.mn.us> wrote:
Larry,
Thank you for the submittal. I do see some things that need to be corrected. I will list those below:
Remove the city to repair sidewalk in both places. I have contacted our street dept and they will be looking into
getting those fixed.
Updated proposed elevation file contains separated layers
The retaining wall lengths are not accurate. Measure those out and put in correct measurements. Also from the
rocks you had onsite they measured roughly 18” and that will be used for the width. There will have to be a hardcover
calculation done for the patio and the retaining walls will have to be taken into account for that.
Measurements updated
Draw lines showing the location of 4” perforated draintile and any yard drain boxes and where it will daylight.
Added drain tile route layer
Remove the soft connection to storm drain from sheet as this is the grading plan and that connection will require
a different work in right of way permit, plus we are 100% sure that the storm drain draintile goes that far to even
make this connection possible.
Added daylight to soft connection segment
Modify the description of work to be done on the permit form to include installing 4” draintile lines, river rock fire
pit area, and pervious paver patio. And remove the excavating for egress window and basement window.
updated application text
You will need to apply for a zoning permit for the patio and boulder wall repairs and relocation. Along with that
would be the hardcover worksheet.
if the proposed earthwork permit looks ok we'll proceed with the zoning permit.
I will discuss with Mackenzie and show him where you are at with things, but you should call him and get the zoning
stuff squared away and permits in.
5
Thanks for your help
Email over again after you have made the changes.
Thanks,
Steve Ferraro
Construction Manager
Engineering Tech IV
City of Chanhassen
7700 Market Boulevard
P.O. Box 147
Chanhassen, MN 55317
Office # 952-227-1166
Mobile # 763-286-1623
From: larry synstelien [mailto:larry.synstelien@gmail.com]
Sent: Monday, September 26, 2016 9:55 AM
To: Ferraro, Steve <SFerraro@ci.chanhassen.mn.us>
Cc: Joan synstelien <joan.synstelien@gmail.com>
Subject: 6893 Highover Drive Earthwork Permit and Proposed Elevations
Steve,
Thank you for stopping by last week to go over our landscaping project. Based on our discussion, please
review the attached application for earthwork and proposed elevations. Let me know if you would like any
additional information and/or changes.
6
Again thanks for your help with the project and were eager to get the go ahead to complete the work.
Thanks,
Larry & Joan
CITY OF CHANHASSEN
AFFIDAVIT OF MAILING NOTICE
STATE OF MINNESOTA)
ss.
COLTNTY OF CARVER )
I, Kim T. Meuwissen, being first duly swom, on oath deposes that she is and was on
August 6,2020, the duly qualified and acting Deputy Clerk ofthe City of Chanhassen,
Minnesota; that on said date she caused to be mailed a copy ofthe attached notice ofa Public
Hearing to Consider an Appeal ofthe City's denial ofan Encroachment Agreement for
Retaining Watls within Drainage and Utility Easements and Variances from the City's
Prohibition on Locating Structures within Drainage and Utility Easements at 6893
Highover Drive, Zoned Single-Family Residential, Planning Case File No. 2020-15 to the
persons named on attached Exhibit "A", by enclosing a copy ofsaid notice in an envelope
addressed to such owner, and depositing the envelopes addressed to all such owners in the
United States mail with postage fully prepaid thereon; that the names and addresses of such
owners were those appearing as such by the records ofthe County Treasurer, Carver County,
Minnesota, and by other appropriate records.
Kim T M ssen, Depu
JEAI{
Jf,d
MSIECKLINGhgo.nr,eo
Subscribed and srxom to before me
thislrX^ day of {L-u^z,l ,2020.
0
Notary Public
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Subject
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This map b nether a legally reco.ded map nor a suNey and is not inten(bd to be w€d
as one. This rmp is a compihiion of reco.&, intormation and data located in vaious cjty.
counly. state and fede6l ofices and olher sources regalding the area shorm, and is to
be us€d br relereoce purposes only. Th€ City does not wanant that the Geooraphic
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porpose rBquidng exactng moasuemeot of dBtance or direclion or p.ec6aon in the
def*aion of oeographic Eatures. The pecedino disdaimer b p@vid6d puBuant to
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tlat the City shall not be liable for any damag6, and erpr$3ly traives all daims, and
ag.ees to debnal, indemnify. and hold harmless the city iorn any and all daim3 b.ouoht
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