PC Minutes 8-18-20Chanhassen Planning Commission – August 18, 2020
2
PUBLIC HEARING:
CONSIDER AN APPEAL OF THE CITY’S DENIAL OF AN ENCROACHMENT
AGREEMENT FOR RETAINING WALLS AND VARIANCES FROM THE CITY’S
PROHIBITION OF LOCATING STRUCTURES WITHIN DRAINAGE AND UTILITY
EASEMENTS LOCATED AT 6893 HIGHOVER DRIVE.
Walters: Alright we’ll wait one second for the power point to come up. Thank you. As the
Chair mentioned this is Planning Case 2020-15, 6893 Highover Drive. The applicant is
appealing the administrative decision to partially deny a request an Encroachment Agreement
and is requesting a variance to allow two retaining walls to remain in the drainage and utility
easement. If appealed or if not approved or denied by a three-fourth majority vote this will go to
the City Council on September 14th. Before we start I just want to make a note that there are
several historic and ongoing concerns associated with this property however I wanted to clear the
purpose of this meeting is to determine two things. If staff made an error in denying the
requested Encroachment Agreement for two of the retaining walls and if a variance should be
granted to permit these retaining walls to remain within the drainage and utility easements.
Comments and discussions should reflect those two points. So appeals don’t happen too often so
I’d like to quick give a brief overview of that process. Essentially the city code designates the
Planning Commission as the Board of Adjustments and Appeals. This empowers them to hear
and decide appeals once alleged that staff has made an error of Chapter 20. And that’s the City’s
zoning code. So the error can be in any order, requirement, decision or determination made by
staff pertaining to any provision of Chapter 20. The decision threshold is the same as for a
variance so if three-fourths of the members present vote one way the decision is final unless
appealed to the City Council. However in a split vote or a vote by less than three-fourths of the
members present it will then automatically go to the City Council for final decision. So the
property in question is located at 6893 Highover Drive. It’s zoned residential single family. The
minimum lot size for that district is 15,000 square feet. This is a corner lot which means it has a
30 foot setback on both street frontages and then 10 yard setbacks along the non-street lot lines.
It’s limited to 25 percent lot cover under the code and the property has 10 foot drainage and
utility easement along 3 of it’s lot lines and a 5 foot drainage and utility easement along the south
lot line here. The current conditions on the property, it’s a lot of 22,774 square feet. Existing lot
cover is 5,895, just under 26 percent. Retaining walls, there are three non-conforming retaining
walls located within the north and west D and U’s. And then four new retaining walls have been
constructed within the eastern, southern and western drainage and utility easements and we’ll
talk more about those later. There’s also a deck which encroaches approximately one foot into
the eastern drainage and utility easement. So a brief background of the case history. On August
16th staff started working with the homeowner on grading for the property. The homeowner was
informed of the City’s permitting requirements and that retaining walls could not be placed in
drainage and utility easements. On October, 2017 staff performed a final inspection for the
grading permit and determined that the property had not been graded to plan and that retaining
walls had been built without permits. On February, 2019 staff received a survey of the property
showing that retaining walls had been built in the drainage and utility easement and that one of
the walls exceeded in 4 feet in height. That’s a threshold where a building permit and engineered
Chanhassen Planning Commission – August 18, 2020
3
design is required instead of just a zoning permit. On April, 2019 the homeowners applied for a
retroactive permits and an Encroachment Agreement. Staff determined that additional
information was required at that time. In February of 2020 the City Engineer partially denied the
requested Encroachment Agreement and on July, 2020 the homeowner appealed the denial and
applied for a variance to permit the walls to remain as built. So the applicant’s appeal. The
applicant alleges the errors that staff’s denial of the requested Encroachment Agreements for
Walls F here and Wall I here was incorrect. As I mentioned the applicant had applied for an
Encroachment Agreements. The encroachment had 9 different encroachments that they
requested for the City’s easements labeled here as A through J. Staff granted all of the
encroachments except for Wall F and I. The applicant believes this was an error because there
are no utilities located within the easement. There is a very limited encroachment in the
easement for Wall F. They believe the potential conflict could be resolved through an
Encroachment Agreement. They’ve stated that Wall F is necessitated by the location of the door
under the deck and that the code does not require the removal of the wall. They’ve stated that
Wall I does not alter the property’s drainage and that the installed French drain system does not
negatively impact properties and conveys the water to the street. So an appeal of an
administrative decision, staff did respond to each of the points within the staff report. However
at it’s simplest essence the question before the Planning Commission is did staff make a mistake,
an error in denying the Encroachment Agreement requiring the walls to be relocated. If the
Planning Commission determines staff correctly interpreted and applied the city code, no error
has occurred and staff’s decision should be upheld. If staff did not correctly interpret and apply
the city code an error occurred and staff’s decision should be overturned. So the relevant section
to city code is Section 20-908(6). This governs the placement of structures within easements.
The bold text is relevant. Retaining walls may be permitted 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. In this case the designee is the
City Engineer. Staff’s interpretation of this section is that staff is only permitted to issue
Encroachment Agreements for structures that do not alter the intended use an easement.
Drainage and utility easements serve two functions. They provide for both the installation of
utilities and facilitating drainage. Staff determined that the proposed retaining walls impacted
the drainage function of the easements. In this case the city code does not allow for the issuance
of an Encroachment Agreement for a structure that impacts the intended use of an easement.
Given the above staff believes staff was correct in denying the requested Encroachment
Agreement and the city code does not allow structures in easements without an Encroachment
Agreement which is what requires that the retaining walls be relocated. It should also be noted
that Section 20-908(6) does not require the issuance of an Encroachment Agreement and places
the issuance of an Encroachment Agreement at the discretion of city staff. With that I believe
engineering will go through why staff determined that there was an impact on the easement and
it's drainage functions.
Ferraro: Good evening. This is a photo that was taken in 2016 after grading had started already
occurring on the property. This is the approximate property line and the black line and the
drainage coming to the north unobstructed in the drainage and utility easement. This is a side by
Chanhassen Planning Commission – August 18, 2020
4
side comparison of the two. The property in 2020 on the right where you can see the grading
towards the east. This is an excerpt of the approved grading permit showing blue arrows as the
grading as it was supposed to be graded per the approved grading plan showing drainage
following the drainage and utility easements both on the east property line and the south property
line. This is a snapshot of the as built survey performed by the applicant showing the drainage
going to the east onto the neighboring property and the Wall I obstructing the drainage and utility
easement as well as Wall F.
Walters: So the second part of this request is a request for a variance. This requested variance
be from the ordinances prohibition on retaining walls and structures remaining in the D and U.
Sorry being placed in the drainage and utility easement. The applicant’s variance request or
justification is that the retaining walls facilitate the location of sidewalk and landscaping, both
elements of which are reasonable uses for residential property and that the retaining walls do not
negatively impact adjacent properties. They have noted that the applicant is not responsible for
the location of the retaining walls. The retaining walls were sited and placed in the drainage and
utility easement by their contractor without the applicant realizing that this would present an
issue down the road. They’ve noted that the retaining walls are not highly visible from the street
and they do not believe they change the essential character of the area. And again the walls in
question are Wall F and Wall I here. All of the other walls have been either retroactively
legitimatized through a zoning permit or engineering was able to grant an Encroachment
Agreement for. So staff’s assessment of these walls is that the homeowner was made of all
permitting requirements and restrictions when they applied for the grading permit. They worked
directly with staff. The homeowner worked directly with Mr. Ferraro to develop the grading
plan at which time retaining walls permitting requirements and the location of drainage and
utility easements were discussed. The property was not graded in accordance with the approved
grading plan. The retaining walls in question were not shown on any of the permit applications
for the grading permit, deck or door and all of these improvements could have been constructed
within the bounds of city code. Ultimately the homeowner is responsible for work performed on
their property by contractors they have hired. As has been discussed the walls in question
interfere with the function of the drainage and utility easements and divert water in a manner
detrimental to adjacent properties. Given that the applicant’s request does not meet the criteria
for issuing a variance under the city code. With that staff will be happy to answer any questions
the commission may have.
Weick: Thank you MacKenzie and thank you Steve as well for the information. At this time I
think we’ll go ahead and just open it up for the Planning Commissioners to speak if it seems like
we need to control the flow a little bit we’ll go ahead and just do a roll call style but for right
now let’s see if there’s any comments or questions for MacKenzie or Steve regarding the staff
report.
McGonagill: Okay MacKenzie this is Commissioner McGonagill. Go, if you could because I, if
you could just to be sure I think it’s something to highlight. Go to the original grading plan for
me on the overhead if I can see it.
Chanhassen Planning Commission – August 18, 2020
5
Walters: Is this the slide you’re requesting?
McGonagill: Yeah there’s more of a plot that showed the grading plan. That one. Is that the
original one?
Walters: No Commissioner McGonagill. This is the as built survey done after the work was
complete. We have the additional, the full grading permit is in your packet as an attachment.
However this photo here is a screen shot of the full layers of the approved grading permit. So it
shows the berm the applied for. Retaining wall being relocated here. Drainage swale. Drainage
arrows and the drainage system there.
McGonagill: So in the original grading plan they did have the berm, or the retaining wall set
back like it was supposed to be away from the edge and they had the other ones in here where
they terminated before they go in the utility easement, is that correct?
Walters: That is correct.
McGonagill: Okay and then when you go to, because it still has even when you look at that
grading plan there is some contour coming from the back of the house down to where that berm
is because I’m just looking at the lines, the flow so it’s still got quite a bit of some relief
dropping down because this house is on the really at the end of a hill that drops down. There’s
quite a bit of relief that’s moving down so let’s go to the one as is. On this one basically what
they ended up doing did they not just flat top the whole thing and away and that’s where these
berms come in? Just basically they pushed the yard out flat from the back of the house all the
way to the edges?
Walters: Mr. Ferraro conducted the final inspection on the grading permit so I’ll defer to him as
he’s most familiar with the property as it stands.
Ferraro: Yes the grading in the back yard was raised and elevated approximately a foot and a
half to two feet, if that’s what you’re inquiring about.
McGonagill: Yeah that’s just when I was looking at that topographical deal it basically, and
that’s what Wall I you call it really is doing. It’s allowing it to be pushed out and actually raised
the whole yard above the existing grade. Is that correct?
Ferraro: Yes it’s hard to confirm your question being as that before the grading permit was
applied for and approved there was no preliminary survey done on the property.
McGonagill: Okay good point. Appreciate that. The other question just for, just because
MacKenzie went through this at a real high level but I just wanted to be sure that I understood
this. I’m looking on the staff report page 4 and so, are you there MacKenzie?
Chanhassen Planning Commission – August 18, 2020
6
Walters: Yes I am. Sorry I was flipping to page 4.
McGonagill: Okay what I see here is you, well excuse me I’m on page 3. So in September of
2016 is really it started in August 15th of 2016 about grading was done without erosion control so
it went through that. Got erosion control established on the site by, in a month. About a month
later. It took a month for that to come in and then a draft grading plan was submitted and so
that’s September. And then staff came back and said notes on what the grading plan should look
like. Final version was submitted in October. Permit was signed and then in November we kind
of go forward to look for several permits and then we just kind of move forward and suddenly
we find that the grading plan was not followed. And this came from some comments both from
the contractor and also from some homeowners around the site that, and due to inspections that it
was not, the grading plan was not followed. So that was in October of 2017 that you find that the
grading wasn’t followed and that was pointed out. We pointed out to the homeowner. Also
pointed out to the homeowner in October, 2017 that there were I think it was 7 retaining walls in
there that were put in without permit. I think the number 7 if I remember right. And then it
moves forward through the next two years working through the process the homeowner and then
ultimately to the attorney and finally you get a survey what looks like in March of last year. And
that’s when this whole thing starts on the Encroachment Agreement and the issues of what
retaining walls should have to be in or out of the area. Okay. So one thing that’s not in the
report and maybe I just missed it. It’s possible like a lot of things. Did we ever get a formal, any
sort of formal complaints for the homeowners around that about the water coming in?
Walters: My recollection is we received numerous complaints about erosion leaving the site and
concern about the changes of grades on the property. Mr. Ferraro do you have memories of
specific complaints about water?
Ferraro: I had one, it was a voice call I had received. I don’t remember exactly when from the
neighboring property to the south concerned about the ponding of water on their property.
McGonagill: Yeah okay that would make sense because that one, that house has a walkout, has a
lookout basement if I remember. Not a lookout but, it doesn’t have a walkout. It’s got just a
regular basement with wells. Window wells around it so it would make sense the one to the
south. Okay. Thanks. Okay Mr. Chairman that’s my questions. I just wanted to be sure I had
everything in order.
Weick: Thank you Commissioner McGonagill. Other comments or questions from commission
at this time?
Randall: I have one.
Weick: Yes please.
Chanhassen Planning Commission – August 18, 2020
7
Randall: What was the, had any damage happened to the neighbors property or has it actually
improved water drainage issues or not?
Walters: I am not aware of any damage being done to the neighbor’s property. However I
would defer to Mr. Ferraro for staff’s assessment on the impact on the drainage.
Ferraro: As of today I haven’t had any reports of damage being occurred.
Randall: Okay. And I’ve got another question too. In the water flow diagram that we have
where we have the I and L I think it was where it showed the flow of water.
Walters: It’s up now.
Randall: Is it up now?
Walters: Yep.
Randall: So if we’re looking at the retaining wall for the deck that seems to be not causing any
issues with direction of water flow correct?
Walters: I would defer to Mr. Ferraro on that.
Randall: Okay.
Ferraro: That particular wall is inside the drainage and utility easement and based on the
elevation of that wall, the footing of that wall it’s, how it’s back filled and everything would,
you’d have to back fill the foundation of that wall for it to hold itself and inherently the drainage
then goes to the east.
Randall: Gotch ya. Because I wasn’t sure if like that wall, the bottom on that’s in the curve. If
you see that little off shoot. Yeah right in there. Is that causing the water to drain over to the
neighboring property? Whereas the wall that’s closer to the deck area is not causing that?
Ferraro: You’re correct in saying that the wall here that I’m highlighting is pretty much, 100
percent sheeting the water to the east as indicated by the red arrows whereas the wall in purple
here is still allowing water to travel northeasterly but still onto the neighboring property.
Randall: Okay. Okay those are my two questions that I had. I appreciate it. Thank you.
Weick: Thank you Commissioner Randall and I would like to follow up on that because that just
raised a question in my mind. It was my understanding that the intention of the original grading
Chanhassen Planning Commission – August 18, 2020
8
plan was to have basically those red arrows point parallel to the property line. Not at the
property line.
Ferraro: That’s correct.
Weick: So the water’s supposed to flow down to the street and the issue is it’s not.
Ferraro: Yes that’s correct.
Skistad: I have a question.
Weick: Please go ahead Commissioner Skistad.
Skistad: Yeah so I mean I understand the wall’s there but then it sounds like there’s also a
French drain that was put in to try to mitigate that and send it to the road, is that correct? Is there
a French drain there also that goes to the road?
Ferraro: That is correct.
Skistad: All those retaining walls.
Ferraro: Yes it.
Skistad: But you’re saying that, or what are you saying? You’re saying that the drain doesn’t
provide enough drainage that direction? Drain tile.
Ferraro: I’m trying to understand the question.
Skistad: If like you’re saying that there’s still directional flow to the other property and that it’s
not the French drain is not performing it’s task in a sense providing the directional flow to the
street?
Ferraro: Yes that’s correct. The French drain is capturing on this here you can see the French
drain inlets are right here. And then the water is directed towards the street underground. So it
aids in the, getting water towards the street but ultimately any sheet draining or any water that
lands in the yard is not being contained in the drainage and utility easement.
McGonagill: Clarifying question. On that French drain especially that one right there running
down that line it’s not an exposed French drain. It’s underground isn’t it? I mean there’s lawn
and sod and everything there. I mean it’s, some French drains will have gravel almost looks like
a creek bed. That one is not that way. I think perhaps the one on the back side is but is that
right?
Chanhassen Planning Commission – August 18, 2020
9
Ferraro: Yeah the French drain system as installed has I believe 5 or 6 inlets that are
approximately one foot or 10 inches in diameter along this southerly property line.
McGonagill: But there’s none on the eastern property line?
Ferraro: Not that I’m aware of and none that show up on the as built survey.
McGonagill: So really the French drain is not doing any good in a sense on the east side is that
correct?
Ferraro: It’s not aiding any of the drainage on the east side, correct.
McGonagill: Correct that’s a better way of stating my question. Thank you.
Reeder: Mr. Chairman, Commissioner Reeder. I just wanted to report that I did join you a little
bit late. Sorry about that.
Weick: That’s not a problem. Thank you for joining. Welcome and Commissioner Randall
sounded like you had a follow up question?
Randall: Yeah. So if we’re to deny the appeal and ultimately what would happen to the
property? What changes would have to be made?
Walters: The property would need to be brought in compliance with the grading permit issued in
2016 so the retaining walls located within the drainage and utility easements would need to be
relocated and the grading would need to become conducive to the northward flow of water as
approved in the grading permit.
Randall: Okay. And how easily is that accomplished?
Walters: That I’m not positive of.
McGonagill: You wouldn’t require the whole site to be graded is that right MacKenzie but just
the, this what we’re talking about here is a, because you’ve already granted. You’ve already
granted the other encroachments to be okay. It’s the stuff’s that’s actually in these lines where
you’re saying that needs to be done to get the drainage correct is that right?
Walters: Correct. Staff would not require that for instance all of the walls built without permits
be ripped out or anything of that extent. Staff is solely concerned with the two walls that
interfere with the intended function of the drainage and utility easement and making sure that the
function of that easement is restored. So the applicant could provide a grading plan removing
and relocating those walls that restored the function that would be acceptable to staff.
Chanhassen Planning Commission – August 18, 2020
10
McGonagill: And Wall F is like 2 ½ feet isn’t it into this area?
Walters: That is correct.
McGonagill: Okay. And the width, the width of the utility easement is how wide? 10 feet?
Walters: It’s a 10 foot easement.
McGonagill: Okay thank you.
Weick: Those are good questions. I will speak slowly and give a few moments for anyone else
to jump in for clarifications. And hearing nothing at this time I would invite the applicant to
come forward and make a presentation. And I would say as you come up we’ve wrapped the
microphone so if you could be really extra loud into the microphone. It is hard for the folks on
the Zoom to hear. Hear you so I just would ask that, thank you.
Mark W. Kelly: Thank you Mr. Chairman. My name is Mark W. Kelly. I’m an attorney. I’m
here representing Larry and Joan Synstelien who are present. And for the benefit of those in
attendance we have a selection of photographs of the lot that perhaps MacKenzie can hand out.
Weick: Is that something we should also try and show as well?
Mark W. Kelly: Well I’d like to thank the staff for their report. As has now been identified quite
clearly the City felt that it was appropriate and necessary to bring this matter to a conclusion and
that an Encroachment Agreement be applied for which we’ve done. And as the city report shows
the City has and is quite prepared to agree to Encroachment Agreements for 5 walls. There are
two at issue. We’re not trying to call out anybody in particular. We are simply trying to exercise
our rights from the standpoint of the code and the law in the state statute which allows us to
challenge a decision by a city administrative officer and failing that appeal the decision and
hopefully we only have to get to that at all. I’m going to diverge from some planned remarks to
point out something that I think is very, very important. Wall F, the wall that runs parallel and
along the easterly edge of the as built new deck is, can be seen in photographs. It’s third to the
last page or so if you can see it on the screen. There it is yes. So this is a top view of the wall.
You can see it barely breaches grade and that wall runs, is approximately sits one foot inside the
10 foot deep drainage and utility easement. I would point out that the City has a 10 foot drainage
and utility easement for the property lying immediately to the east so your total surfaceable area
for drainage and utility in this area is unencumbered, 19 feet. The next page you can see the wall
on the left side of the photograph. You can see this is virtually at grade. And this next item
shows the, the red line shows where the grade was before this was regroomed, regraded into it’s
present state. We don’t have an image for you tonight but the Synstelien’s bought this property
in 1999 and the grading at that time around the house as built sent water to the southeast. It ran
and they were the recipients of all water coming from the south for various yards of property.
Maybe 4 or 5 to the south drained right into their yard which necessitated their action to regrade
Chanhassen Planning Commission – August 18, 2020
11
the lot. And as has been identified you can see that that regrading used a French drain system
that collects the water along the south line and redirects it around to the east and out to a soft
connect in the street. The grading has not increased the water onto the property to the east so
we’re not acting in contrary to water law in that regard. We are making this application to the
Planning Commission and City Council for a ruling on the decision to refuse an Encroachment
Agreement for this wall along the deck and for the stub end of the garden wall which I’ll show
you. Here you see the stub end of the garden wall that does lie, that curb stub does lie within the
City’s drainage and utility easement but as I was indicating drainage has not been increased onto
the property to the east. We believe that were an Encroachment Agreement to include these two
items the issues between the City and the Synstelien’s would be resolved and it could be resolved
amicably and immediately. That’s in the City’s interest. It’s in their interest and it would avoid
further disturbance of the lot or the neighbors through construction and regrading.
Encroachment Agreements are routine matters. The City staff has the authority to approve them.
That’s been acknowledged by city staff. And as I noted these are not per se prohibited. They’re
under the memorandum of the City they’re approving 5 in this instance. And if we focus for a
moment on the wall along the deck the idea that that has to be now taken out will require
disturbing the entire section of the yard that way. Perhaps jeopardizing the deck as built because
the wall is necessary in one shape or another and would then have to be built under the deck and
leading to engineering issues and construction issues which I cannot present at this time but are
apparent to everyone if we now have to build a deck, a wall underneath the deck. There’s also
been some allusion to the idea that walls were built that were higher than 48 inches and that was,
these walls were exactly 48 inches above grade and at the City’s request we did obtain a
structural engineer’s memorandum who inspected it and satisfied to the City administration that
they were properly constructed and not improperly constructed requiring their removal so the
City no longer objects to the placement of those walls or their construction as built and it
shouldn’t be assumed that those walls have been built in any way that are inappropriate and
needs to yet be addressed. The city staff summary simply says that the wall along the deck
cannot be approved because it, it is inconsistent with the approved grading plan to the detriment
of the neighboring properties and as you’ve heard discussed here tonight by staff there’s been a
tacit acknowledgement that the wall itself is not actually redirecting the water but it’s pointed out
that the grade, the soil backed up against the wall may be inappropriately graded but the wall
itself in and of itself does not in any significant manner impact and redirect water to the property
to the east. Imposing a demand or refusing to grant an Encroachment Agreement for that wall
that comes into the drainage and utility easement only one foot is therefore unreasonable. It’s
very arbitrary especially when the other 5 walls are being permitted. We would ask that the City
Planning Commission acknowledge that and also acknowledge that to bring this matter to a close
where matters, there’s no reason to be discussing this deck or this wall. Approving and
recommending that it be included in an encroachment agreement is entirely reasonable all things
considered. Now the second wall which you see now up on the screen, if the camera turns to
that, that does curve into the drainage and utility easement and as has been noted it’s about a foot
and a half change in grade. The wall itself is not significantly altering anything because you can
see that there’s landscaping to it’s south and as I noted earlier the water in that area had always
run in a southeast direction. So this is not increasing or accelerating or redirecting the water in
Chanhassen Planning Commission – August 18, 2020
12
any significant manner from that which it once flowed. That again is a challenges the idea that it
is cannot be approved because it’s to the detriment of neighboring properties. I would suggest to
you that again forcing this to be ripped out based on an estimate that there may be some surface
flow that was once there before but somehow now can no longer be there is unreasonable. Now
we hope it doesn’t become necessary to, for the body to consider the, whether or not to grant or
recommend that a variance be granted by the City Council in this regard but if it is we would
want you to know that of course variances can be granted when there is practical difficulties
being presented. The practical difficulty here is a three prong test. First is the proposed use of
the property reasonable for the zone in which it’s located and I would put it to you that a
retaining wall, a landscape retaining wall, a retaining wall for a deck is a reasonable structure and
use of a residential lot and common throughout the city of Chanhassen. It also if variances were
to be granted giving rise to approving the Encroachment Agreement those retaining walls do not
change the essential character of the locality. Not in any fashion. These are all, these retaining
walls are made out of materials that are commonly used in Chanhassen homes and throughout
the area. The last question is whether or not the plight of the owner is due to circumstances that
are related to the land and not created by the landowner. The City must acknowledge that the
Synstelien’s did not themselves do the grading, the planning and the execution of the drainage
system. They relied on a contractor and the city staff has asserted that while that doesn’t really
mean anything because the citizens should be held responsible for that. Still all things
considered it is not unreasonable to grant the variance here because the plight of the owner was
not knowingly permitted or created. It wasn’t personally done and it’s adverse impact on the
community is none. Moreover if we can move beyond this moment we can bring this matter to a
conclusion. You’ve already heard that this matter dates to 2016. There’s a need to have some
kind of closure on this matter and we have made the application for the Encroachment
Agreement at the instruction and advice of city staff. We’re doing everything we can to meet the
city staff’s concerns and we’re not interested in impugning the integrity or the judgment of any
city staff member at all but we are faced with a conundrum. What can we possibly do to meet
the City’s need for a proper application of it’s code, all things considered. My clients worked
with city staff. Staff was at this site repeatedly for a number of years and clearly here we are
now so it isn’t like nobody knew that anything was going on on this lot. It was available to be
observed and was observed. It’s unfortunate that we’re here now and that we are now frustrated
by a ruling that no, you can’t have an Encroachment Agreement. Especially an Encroachment
Agreement regarding a wall that is parallel to the drainage and utility easement adjacent to the
deck which in and of itself does not direct water to the east. The simple landscaping wall that
you see on the photograph does not significantly alter the drainage in that area. So I would
respectfully request that the Planning Commission consider approving the grant of a
Encroachment Agreement if only to bring this to a conclusion in a manner that is in the interest
of the City and the citizens and certainly of the applicant Joan and Larry Synstelien. With your
permission I’d like you to have the opportunity to hear from Joan. Council?
Weick: Absolutely, thank you.
Mark W. Kelly: Thank you.
Chanhassen Planning Commission – August 18, 2020
13
Weick: And thank you for your presentation. Welcome.
Joan Synstelien: Can this come off when I talk?
Weick: Well yes?
Walters: Yes.
Joan Synstelien: It’s okay. Otherwise it fogs my glasses and I can’t read what I have here. And
I was requested to kind of speak off the cuff here. Being nervous, never having done this before
I will speak off the cuff but it will look incredibly like I’m reading what I wrote and that is what
I will do here. My name is Joan Synstelien and I reside at 6893 Highover Drive since January of
2001 and I’m one of the few nearly original members of the Highover community. I’m married
to Larry who is over here and I have four boys that grew into young men under the care of Larry
and I and the Highover village. I’ve read this a few times and cry every time so I’ll try to hold it
together here. My boys played with neighborhood children. The Block’s kids. They spent
countless winters with these children sledding on our slopes and it was a great place to raise the
kids and my home has always been where I’ve wanted to be reside and live and vacation for that
matter. I want to review the bit of the history of this recent home improvement and give you a
sense of the flavor of this project. In a nutshell because our project was purchased essentially
new we began the ominous task way back when of making a safe yet appealing yard for our
children to play in and they were young. They were 7, 5, 3 and 1 at the time but they were
strong and smart and they helped wheeled wheelbarrows. Dumped dirt and smashed the plants
into the ground as only young boys could do. Our neighbors at the time were gracious. The
Block’s supported us with our work with cold beer. The Lorrie’s brought over marshmallows
and chocolates when we put in our fireplace and it was just great. It was kind of a Mayberry
situation. The neighbors to the east who have since left shared with us with a bottle of
champagne and it was great but time passed and the weeds popped up and our young teens took
to mowing rights and they were in demand by many of the neighbors for both landscaping help
and animal care including the Michael’s, the Toole’s, the Block’s, Mulhausen and the
Hayworth’s and while we enjoyed the property we certainly focused on the boys more than
keeping the property up to date. But as they entered college we reached a point of stability and
thought it was time to make some changes and invest in the home and we began tackling the
work with both the use of a contractor which we had not done in the past and our own sweat
equity. It started very small with the planting of a couple plants. We didn’t have big plans at the
time and that was back in the dates you all have provided us several years ago. But we clearly
along the way made mistakes with this project. We’re sorry about the mistakes and we
continued to try to work to resolve these. At the time that we started this we had access to a
Bobcat so we began moving plants to make a berm. We actually thought about a pool and we
brought in a pool consultant but decided that would be incredibly disruptive so we decided not to
make a pool in the back yard. The original plans had a pool in them. We brought in the city
people to discuss the plans. There was a building official named Jared Moen who came out to
Chanhassen Planning Commission – August 18, 2020
14
look at our grading line that we were proposing. He left a card and said we did not need a permit
for what we were doing and if the neighbors had concerns they should give him a call. Through
this suffice to say the City has provided us with outstanding suggestions, comments, and
insights. Mr. Ferraro and Mr. I don’t see him but I know I’ve heard it a million times.
Walters: Walters.
Joan Synstelien: Yep, yep. We’ve talked about many times the great insights they had and they
were at our property constantly. They mentored us on drainage, water flow, building
requirements, timelines, and how to handle neighbor interactions. It went very well but
complaints were beginning to be lodged because this project was kind of going on and on. Many
stops and starts. Huge delays caused by both weather and the complaints of the neighbors that
frequently brought us to closure and we had to start over again. The City was actually very
wonderful through all of this. Again we had suggestions. Steve many, many suggestions from
you that we took to heart and it completed the project and we kept getting better and better with
everything you brought to us. Most of the issues were because of complaints and you all
encouraged us to continue while providing guidance and suggestions. We were approved again
and again and again and cleared to do more project on the, or to continue the project. Once the
grass was installed things quieted down and while we still have some finishing touches we have
about 99 percent of the work done. Neighbors now walk by and talk about how wonderful our
gardens looked. We had one neighbor who stopped and just started crying and said that the
property reminded her of her New England home. We’ve asked many of them to tour, or they
have asked us many times to take them on tour of the back yard and talk about how beautiful it
looks. How we had, apparently the kids got together and did a poll and said our home was the
best looking home in the neighborhood so I was very pleased with that. It has really grown and
looks good. Functions well. I believe the remaining Encroachment Agreement issue is the last
matter and if we can approve this it will be to everyone’s benefit. I know the Block’s are pleased
with the outcome. I think Mr. Block might be speaking a little bit later. The Wargin’s continue
to think that the water’s diverted to their property but we have greatly, the grading has greatly
reduced the water. The other neighbors that lived there prior, their home was flooded every year
and I don’t believe that’s happened and it sounds like no complaints have been lodged so we
have greatly improved that while that wasn’t our first goal, great outcome of that. They have
benefitted from that regrading. We don’t feel that eliminating a retaining wall adjacent to the
new deck or diverting the few feet of garden edging warrants the upheavals that would have to
occur if those need to be ripped out. So thank you for allowing me to share my story and we ask
that you don’t have us rip up our yard again.
Weick: Thank you very much and thanks for presenting your views and story. We really do
appreciate that and do take that to heart. I would say, I would open it up now. It’s an
opportunity for the planning commission to ask any questions either of yourself about your home
and your project or the attorney if any such questions exist. So at this time I’ll open it up for
commissioner questions.
Chanhassen Planning Commission – August 18, 2020
15
Von Oven: This is Commissioner Von Oven with a question for Mrs. Synstelien.
Weick: Go ahead.
Von Oven: Great. Thank you first of all for taking us through that portion which obviously is
not, we don’t get all of that context from the staff report. It surprised me a little bit. The
glowing remarks about working with city staff given all that we see in here and pleasantly
surprised. My question I guess would be in your opinion at what point, what event, what
milestone did that change because I think what we’re here to do today doesn’t seem like that
would have been where all of this ended. So was there a point in time or was there an event or
was there a disagreement that that changed for you?
Joan Synstelien: I do not believe there was a point in time. We have consistently been thankful
for the guidance from the city and consistently it appeared they were encouraging us. I think the
more the complaints were coming in from I would, I didn’t look them up but I assume it was a
few of the neighbors but not a lot of them. The more and more complaints that got lodged the
more the City felt they had to do something and were pressured into doing something but I’m
just speculating.
Von Oven: Gotch ya. Okay thank you. And then either yourself or the attorney, given the fact
that our job today as the Planning Commission is pretty straight forward and that is to understand
and determine whether an error was made in this previous judgment. Can you or your attorney
please clarify for me succinctly what is the error that you believe was made in this administrative
decision.
Joan Synstelien: Can I say something to that first?
Mark W. Kelly: You may.
Joan Synstelien: Okay. I think the error was in assuming that the waters were flowing into our
easterly neighbor’s property at a greater increase than they are. It is way less water on their
property than ever has been the case due to the fact that they just aren’t getting flooded and
we’ve had some pretty wet seasons so I think the error was in maybe not going back or
understanding how badly that was being impacted over there on the Wargin’s side of the
property line. That’s my piece of it.
Mark W. Kelly: I believe Joan has stated that well. I would point out that the justification given
by the administrative officer is that it adversely impacts the neighboring property owner but
given the fact that the Synstelien’s grading plan and French drain now capture the water coming
from the south which originally then slid either into the Synstelien house or southeast to the
property on the Synstelien’s east lot side, that was has now been captured and redirected and into
the French drain into the soft connect in the street and the grading of this has, the effect of
regrading has greatly reduced the amount of water that naturally flowed in that direction and then
Chanhassen Planning Commission – August 18, 2020
16
of course I would point out the fact the idea that the wall adjacent to the deck is redirecting the
water doesn’t follow given the fact that the wall has no curve to it and doesn’t redirect water in
any shape or in any manner to the east. It is the grading in the area that might be addressed but
we don’t believe that needs to be addressed in order to approve the requested Encroachment
Agreement for that wall. As to regard to the small stub end of the south garden wall, for all the
reasons I’ve just indicated haven’t captured the water that originally flowed in that direction and
largely redirected it. That wall does not significantly impact adversely the property to the east.
Weick: Thank you Commissioner Von Oven. Any follow up questions?
McGonagill: Yes Mr. Chair I’ve got a couple.
Weick: Great. Hold on one second Commissioner McGonagill. I just want to be sure
Commissioner Von Oven has finished on this topic.
McGonagill: Sorry.
Von Oven: Yeah just, sorry just one more and I was looking for the exact date and I can’t find it
so I’m just going to go off the cuff here but in 2017 the proposed deck was reviewed by staff.
There it is. Okay May 17th. And then the actual, the actual construction of the deck and the
walls, all of the pieces in question, can you just quickly point me to the date when that was. I’ve
lost it and it’s the basis for my next question.
Weick: We’re looking right now Commissioner Von Oven so.
Von Oven: Yeah.
Walters: So Commissioner Von Oven I didn’t put a permit by permit interaction by interaction
summary of the deck because the deck is not directly in question here but the work on the deck
would have occurred primarily between May and I believe September.
Von Oven: Of 2017 right?
Walters: Yep in 2017. I believe that’s correct Mr. Ferraro as well.
Ferraro: Yeah.
Von Oven: Okay. So let’s just call it September of 2017 all of these things have been built and
now there’s complaints from neighbors sometime, maybe multiple times between 2017 and now
there is so the City is coming out and saying hey this isn’t to plan. My question is for the
homeowners. Are there any changes between September, 2017, any physical changes made.
Were there any physical changes made to the property as a result of the guidance that the City
had been giving you and can you clarify what those were?
Chanhassen Planning Commission – August 18, 2020
17
Mark W. Kelly: Mr. Synstelien?
Larry Synstelien: I’m not quite sure I understand the question.
Von Oven: Let me make it super simple. So of all of the things that are in question today, walls,
lips, you know these guys are better at this than I am but all of the things in question after
September of 2017 as the City poking around and saying hey we’re not sure the grading plan was
followed. You know all this, were there any physical improvements made between September,
2017 and now that were, oh you know if you guys just did this we could.
Larry Synstelien: Yeah there was never a if you guys could just do this kind of scenario so the.
Von Oven: Okay, so from that point on it was always we’ve got to rip down a wall or we’re got
to scrap something.
Larry Synstelien: Yeah exactly. That’s exactly correct and if you add to that the carefully
eliminated deck was actually built after the retaining walls were put in place and in addition to
that Mr. Ferraro had asked to come out at any time and I said he certainly could and he said he
had been out there looking at it every weekend and as you know it takes a little while to do
grading and he went out and inspected the soft connect. Made no indication at all that there
should be a change. Made no indication of the change to the grading so we did final grading
based on all the inspectors for the deck, for the grading itself. No new walls were put up.
Instead of using black edging, if you look at the back and I heard one of the commissioners say
that that wall was put up to push earth against. That’s not correct. The final grading was done
and the contractor simply asked us do you want us to put standard black edging in or would you
like to continue with the retaining block. Retaining blocks cost more but looks a lot nicer and we
got it back lit so the back yard looks very nice. It’s not holding any earth going one way or the
other. It’s not a structural wall. It was simply an elective we picked instead of using lower
quality black edging so I want to make sure that comes across so you kind of understand the
perspective from our point of view. Does that answer the question?
Von Oven: Yeah I’ll just clarify the last part. No retaining walls were ever shown or approved
as part of the deck plan because what you just told us is they were never part of the deck plan.
After or during the project they said hey you know what, what if we change to this and that’s
when a retaining wall was actually became part, is that what I heard correctly?
Larry Synstelien: Well yeah, there’s a couple of things. One is to build the deck there needed to
be that retaining wall that we’re talking about right now. That’s actually a wall, it’s about 3 feet.
We were instructed we did not need a permit for that because it wasn’t above 4 feet. We were
instructed we didn’t need engineering to approve that. So that was built before we built the deck
so that was out there and then the edging part, that’s in the back part, the back berm. The berm
was approved and instead of using black edging we put in the retaining block. We just, the
Chanhassen Planning Commission – August 18, 2020
18
contractor asked us and we said whatever would look the nicest so it’s not structurally affecting
that whatsoever. Does that?
Von Oven: Thank you. That’s all my questions. Thank you.
Weick: Thank you and thanks Commissioner Von Oven. I cut you off Commissioner
McGonagill. If you’d like to go ahead.
McGonagill: The question I have and I can put this to the attorney or the homeowners. It
doesn’t, which ever wants to answer it. In October of 2016 you signed a grading permit for the
site, correct?
Larry Synstelien: I don’t have anything in front of me but that sounds about right.
McGonagill: Excuse me I can’t hear you.
Larry Synstelien: That sounds about right. I don’t have it right in front of me but that sounds
correct. We had initially gone to the City I think as Joan mentioned and someone with the City a
couple years earlier had come out. Looked at the stake lines that we put in and said yeah I totally
understand why you’d want to grade it this way and said you don’t need a grading permit. Just if
the neighbors call or complain here’s my card. Have them give us a call so we started with that
in mind. That that’s all we were going to have to do. And then we believe there were some calls
made. That Mr. Ferraro and as my eloquently said Steve provided massive inputs to create a
much larger project which involved drain tiles coming out of all our eave spouts. A French drain
system which if you look at that easterly side wall it does handle a lot of water there because it is
only you know 3 or 4 inches of soil but then after that it’s all clear coat all the way to the bottom.
So as soon as that saturates it actually goes down and we never intended to really change the
grade between the two properties. That was always sort of flush grade and if you look at the
drawing that the attorney showed it matches the original grade.
McGonagill: So I come back to the question though. You have a grading plan submitted and it
was approved and you as the homeowner received a permit for the grading plan in 2016. Is that
correct?
Larry Synstelien: Correct.
McGonagill: Okay and then as we go through what Commissioner Von Oven went through
there were plans submitted for a deck that didn’t have any retaining walls in it. Then as we move
into 2017 we start issuing, we start, staff has stated being made aware of issues and we then had,
and I’m just kind of going through my list here. Sorry I’m just kind of going through but it
suddenly we find in 2017, a year later that the grading plan that was approved was not followed.
Is that correct?
Chanhassen Planning Commission – August 18, 2020
19
Larry Synstelien: That’s the contention.
McGonagill: Say again. I didn’t hear you.
Larry Synstelien: I think that’s what Mr. Ferraro was alluding to. We disagree with that right.
We disagree with the assumptions on the water’s that being shown there and if you look at that,
there were a number of projects that were going on that the City approved. There was an egress
door. An egress window. The full renovation of the basement along with the building of the
deck so there was city inspectors out there continuously. There were building inspectors out
there all of the time including Mr. Ferraro looking at the soft connect of the drain tile. There was
never a single issue brought up regarding the grading permit. As you know that takes a while to
do. There was not a single thing brought up until after the final grade and after the sod was put
in. And after everything was landscaped.
McGonagill: I understand sir but again I’m just trying to get my timeline straight. That you had
a grading plan. You had a contractor that you’re holding accountable to follow the grading plan
and you received it and then a year later suddenly things start happening and then it’s observed
by staff in October of 2017, if I’m understanding this correct, that the grading plan had not been
followed. And in addition the grading plan did not match the plans and additionally suddenly it
appears that there I want to say 7 retaining walls had been built without permits. So okay.
Larry Synstelien: But the part that I’d like.
McGonagill: Let me state my question because I’m not trying to, I’m just trying to understand
this.
Larry Synstelien: Yep.
McGonagill: The point, I understand. You’re doing the landscaping. You look at a way to
make it look better using the brown block you did. I get that. I understand. I understand how
that can occur but what I’m not following is okay when the staff raised those issues to you in
2017 it’s like this kept going on and I’m going well what was going on that led you to believe
that now you didn’t do this when they had told you they could do it.
Larry Synstelien: Yeah I think that the issues brought up after it was completed. It was startling
to us that they brought up issues because they had been out there all the time and when those
items were completed there was nothing brought up by staff. There was not, as you are aware
right when you’re doing any kind of project and we are painfully aware when an inspector comes
out, the issue you know fix or change this. At no time did the staff do that. All of a sudden in
October, as you said, the project had been completed and then they started coming up with things
and there’s a litany of items that they’ve gone through. That we’re a moving target and I’ll, you
know it’s been a moving target since October just on the grading side. We’ve been able to finish
all the other aspects of the project so.
Chanhassen Planning Commission – August 18, 2020
20
McGonagill: Well and I think staff, my opinion, you know just opinion has worked well with
you because of the multiple retaining walls that are in, there’s only really that weren’t enough
permits. They’re only call you to issue on two of them. Is that correct?
Larry Synstelien: I believe so. I hope so. I look to staff on that.
McGonagill: Well I mean that’s what staff has said tonight.
Larry Synstelien: And that’s true and that’s great. Hopefully that’s the case and then we’re
explaining why their argument for those two is not correct pertaining to the drainage and it
affecting the drainage negatively.
McGonagill: Okay and so another question. Was there a pre-construction survey of the site that
would show the way the original drainage existed before you began your work?
Larry Synstelien: Yeah that’s a great question. We pulled that topo plans from the original plot
of the land so it wasn’t done specifically for our project and we’ve shown them to Mr. Ferraro so
he is keenly aware that the water to the south of us, 3 lots would flow down into our lot and then
into the neighbor’s lot the Wargin’s and those topo maps clearly show that drainage.
McGonagill: Yeah…the elevation that’s there. I can see what happened.
Larry Synstelien: Yeah. So the changes we have made the biggest benefit of that is to the
property to the east which is benefiting from all the water that used to flow down from the other
lots is now hitting the berm, which the berm was approved and in that berm on the other side is a
catch basin. The City originally asked for one in the plan and we looked at it and said you know
what we should increase the capacity so we added more catch basins and a better French drain
and it was.
McGonagill: You’re talking about on the south of your lot correct?
Larry Synstelien: Correct, yep. Absolutely correct. And that was under.
McGonagill: …you’re talking about that is in yes and that leveled your yard.
Larry Synstelien: Yes. It didn’t completely level but there is a grade but it greatly improved the
grade in the back yard that’s correct.
Mark W. Kelly: It’s Mark Kelly again. Here’s the submitted with our application for variance
and challenging the decision. This is a photocopy of the Synstelien lot survey that they got at the
time.
Chanhassen Planning Commission – August 18, 2020
21
McGonagill: I can’t see it sir, Mark. Could you please get up to put it up so I can see it.
Mark W. Kelly: Can we activate that camera?
Walters: Yeah it’s on the camera. One second.
Mark W. Kelly: Okay I’m going to turn this so it’s oriented I think better this way. There we
go, okay. So here’s the corner and the property line that we’re talking about is here and you
notice that when they obtained this lot here’s the home to the east. The water flowed from the
south downhill and then veered south and it was directed to the southeast as well. Now there
was apparently some bit of a swale in here that’s what that line is but water in this locale always
flowed this way and the wall, the stub wall that we’re talking about is approximately in this
location and the wall along the deck is over here.
McGonagill: And the grading plan was it not to really take along that line, I’m going to point
maybe it’s point 1066 that you were going to swale it through there to cause the water to run
down the property line to the street is that correct?
Mark W. Kelly: I believe that’s what they intended to do and we think we’ve largely done that
but I can’t speak to it more than that.
McGonagill: Now how do you think you say you largely done that?
Mark W. Kelly: Well the as built grade doesn’t show a significant deviation from this
illustration from approximately 20 years ago.
McGonagill: Oh I understand the water is still going to the east but I thought the original
grading plan was going to modify that so it would run to the street and stay off the neighbors
property to the east.
Larry Synstelien: I’d like to step in on that. That is not the purpose for what that grading permit
was at all. That’s absolutely incorrect and the lines that you alluded to, the arrows that Mr.
Ferraro referred to as grading arrows is not correct also. If you look at those we were showing
underground flow of water in the French drain which there are 9 drain tiles underneath there.
The absolutely the intent if you looked at the topo lines, the grading permit, the grading lines that
we supplied we matched and it was intended just basically to blend in and match what we had
before. There’s nothing, there’s never an intention ever to try to change this part of it because
we knew, Ferraro knew that when we built this berm we would be deflecting all of the water
flowing from all, 3 or 4 lots to the south and that used to all flow down into this property and that
no longer does that. The minor, the minor, the smallest amount of a little bit of runoff from this
is insignificant compared to all of the drain eave spouts from our roof that shed this way and then
from the lots that came down this way and it all used to flow into their back yard and we knew
the neighbors before and Tim can attest to that too that when you’ve got a lot of water it didn’t
Chanhassen Planning Commission – August 18, 2020
22
hit us all that terribly bad but it poured into this poor lot because this lot is significantly lower
than our’s. There was never, ever an intention to change this element of the grade here.
McGonagill: Mr. Chairman I’m kind of getting into the weeds on this technically on whether or
not on the berms as opposed to the real question whether the appeal, if the decision by city staff
was proper or not so I apologize to that to get into the weeds with it so I’ll, I defer.
Weick: Okay thank you Commissioner McGonagill. I think it’s all useful. All the information
we’re reviewing I think is important and I think your questions are helpful. But I respect your
desire to move on and if there are other commissioners.
McGonagill: Well the reason I’m doing that Mr. Chairman is I’m starting to look at the technical
aspects of the water flow, etcetera, etcetera, where the berms would go. Not go and that’s not the
question before us. The question before us did city staff make an error in their determination is
that not correct?
Weick: That’s correct.
McGonagill: So that’s why I apologize and just stop because it’s not the issue in front of us right
now.
Weick: That’s fair. Other commissioners with questions or comments for the applicant?
Randall: I have a question.
Weick: Yes Commissioner Randall.
Randall: One goes back to the staff report on page 13 of the staff report. Is the, there’s two
photos there. There’s one that’s an aerial satellite photo or aerial photo and the other one’s a
drawing. And the one on the right which shows the red arrows, was that, were those red arrows
added by staff or is that part of the permitting process that were submitted?
Walters: The red arrows were added by staff. The picture on the left is all of the layers of the
grading permit that the applicant signed off on for the intended grading of the property but the
red arrows on the right were added by staff to illustrate staff’s assessment of the as built grading
on the, drainage on the property.
Randall: Okay. Well then. Oh go ahead.
McGonagill: So just because that’s a great point Commissioner Randall. If I look at the grading
plan which is on the left, if that’s what you’re saying MacKenzie is that correct?
Walters: That is correct.
Chanhassen Planning Commission – August 18, 2020
23
McGonagill: While it does show water going down the property line from south to north.
Walters: Yes and also contours indicating the creation of a swale to convey that water over land
on that grading plan.
McGonagill: Swales to, from the south to the north?
Walters: That is my understanding. Mr. Ferraro could you confirm that I am reading that
correctly? For the approved grading.
Ferraro: I’m sorry I don’t have that in front of me what we’re looking at.
Walters: The approved grading plan from 2016.
Ferraro: Okay and what was the question again?
McGonagill: I’m taking Mr. Randall’s, Commissioner Randall’s time so I’m just going to ask
this and I’ll let it continue. When I look at the grading plan, I’m looking at the blue arrows on
that. That’s approved drainage pattern showing that the flow as they were moving it around a lot
there was intention to take it from the back to the west and also down the grade, French drain
system and surface swales or I would say flow down the property line. In other words they were,
that was part of the grading plan because usually grading plans that’s why you do them is you’re
trying to control water flow. And so is that correct? Is that what the grading plan was intended
to do?
Ferraro: Yes. The blue arrows on the grading plan intend overland drainage and the black lines
on the approved grading plan is the underground French drain piping.
McGonagill: Thank you. Mr. Randall, or Commissioner Randall I’m sorry for butting in.
Randall: That’s fine. My second question is to the homeowner. What was the response from
the contractor in regards to all this and the issues with the City?
Larry Synstelien: I can answer that. So we provided the contractor with the grading plan. We
provided him with all the documentation we had. They executed to that and their response was
they felt it was within the grading plan.
Randall: Okay. Did the contractor come up with the grading plan?
Larry Synstelien: No that was working with Mr. Ferraro and his input and it was given to the
contractor to implement.
Chanhassen Planning Commission – August 18, 2020
24
Randall: Okay. Okay. Alright. I don’t have any further questions at all.
Weick: Thank you. Are there other commissioners with questions for the applicant at this time?
Applicants. Okay hearing no one speak up, thank you very much again. I do appreciate your
openness and calmness in describing the situation. I really do appreciate that. I understand this
can be a frustrating situation. At this time I would open the public hearing portion of this item. I
don’t believe we had any emails for the record. Anyone here in chambers is welcomed to come
forward at this time. Please state your name and address for the record and offer your comments
on this item. Yes.
Melissa Wargin: Melissa Wargin.
Weick: Oh up to the, yeah microphone and again real loud into that plastic covered microphone.
Melissa Wargin: Hello I’m for the record I’m Melissa Wargin and we’re the neighbors to the
east of the Synstelien’s.
Weick: Welcome, thank you.
Melissa Wargin: So there’s so many facets to their tales. So let’s start with the grading. So our
yard you know would get flooding since we bought it 5 years ago and we put in a special type of
sump pump which worked but there’s other flooding that happens and has been happening and
once they started their construction it got worst because what they did was they added over a foot
of dirt. At least a foot. I only know how at least a foot because our sprinkler guys that
Clearwater had to come in and raise our sprinkler head once they were after 2 ½ years. I mean
we could have them raise it and then fix it and would get run over constantly and that’s the one
that’s inbetween our yards. So that’s an easy way to know how high the dirt went so it was at
least a foot if not more. I mean the guys were very casual about it so there, the constant backhoe
beeping. I mean that’s how you actually know that there’s this stuff going on but the neighbors
themselves actually were doing the work. When they said at one point during this hearing that
they weren’t doing the work, they were. Adding dirt. Constantly adding rock. So what
happened just for the grading and just for where the berm is what happens now is the water
travels, hits that and then comes down into the driveway inbetween the trees and our yard and
then some of it falls right into whatever they dug. You know where they put the door. So it just
goes poush and down and out the spreads out to our driveway, our yards and then down into the
street. The pictures don’t really show on our side inbetween their yard and our’s how it kind of
drops off into the sidewalk. So what happens right before winter comes that whole sidewalk area
freezes now. Just freezes like it’s sheer ice because of that grading too so it’s not just
underground that’s happening. It’s over too. I don’t know where to go with this but the projects
that they start they don’t always finish and as you’ll see in some of these photos actually that
they took themselves, I mean so these trees were put in on Saturday. Okay, so those were put in
on Saturday. You can see all the extra dirt here because that.
Chanhassen Planning Commission – August 18, 2020
25
McGonagill: Ma’am we can’t hear you. Could you speak into the mic?
Melissa Wargin: I’m sorry. So here I see where the water flows inbetween the Block’s yard and
their’s because of all the extra dirt they had put in. Here’s a good example of where the water is
coming and now just dumps into that part of our yard instead of just going the whole way so it
creates more of a, it funnels it. So here is an area that fills with water. I’ve seen them out there
digging below here. And you’ll see it’s still unfinished. They wanted to put windows in there. I
don’t know why. So then you’ll see where they put the new trees in and the water, I mean I
don’t know what’s going to happen there but I don’t know if the trees will suck in more water. I
really don’t know. And you can see how this is below. So when we had like those torrential
rains the other day I have no idea what went on down there. But then you have a door there
which wasn’t there beforehand. So when they started the project I talk to them. I talked to Larry
about it and Joan isn’t very easy to talk to so it kind of goes in circles with them too. So asking
for the plans you know we went to the City. We went here and we couldn’t get any structured
plan and usually you submit it to the HOA too but it didn’t matter so these projects went on
without sort of an idea, or maybe they had an idea for years. They’re still going on and the water
pooling is getting, it’s worst or I mean it’s not better. It just now is funneling harder a certain
way instead of going through our entire yard and more of the yard can absorb it. It no longer can
because it’s blocked a little bit more but we still have the other neighbors that have sprinklers.
There’s rain. We still get water but that’s, that part hasn’t gotten worst. What’s gotten worst is it
coming down the sides now. Anyway if you have any questions for me direct that would be
great because then I can maybe specifically answer them.
Weick: Thank you and I share with you the same appreciation that I shared with the applicant. I
do appreciate you coming forward and expressing your opinion as well.
Melissa Wargin: Right so I don’t understand why the attorney thinks that nothing is going on.
Constantly saying that. Thank you.
Weick: Thank you. Thank you very much. Are there other, anyone else wishing to come
forward. Please do so at this time. And again please state your name and your address for the
record.
Tim Block: Hi, so thank you very much for letting me talk today. My name is Tim Block and I
am a teacher here in Chanhassen. Physics teacher at the high school. Lived in the northern
property since 2002 so just after the Synstelien’s and have been at that property since. I guess
the first question I have because I really want to take advantage of your time is to ask staff to put
up the first slide that they put up because I wanted to know what we’re focusing on. If it’s just
the two retaining walls but there seemed to be a third request and that’s what I was looking at.
And that one being that they had to somehow comply with the grading requirements.
Walters: If we could show the power point please. I believe I have the slide he’s requesting.
Chanhassen Planning Commission – August 18, 2020
26
McGonagill: Is he talking about the motion?
Walters: Is that the slide?
Tim Block: Yeah. That’s what I had missed before. Okay, or is there something before that as
well about other? Okay. So what I’m wondering about is when I read the report they were
talking about the two walls. Wall F and Wall I I believe. They’re at stake but then there was
also a request that there be some compliance with the grading requirement and that’s really, I
mean if I was to provide the commission with any information that’s where I would be able to
provide it. The east wall is on the Wargin’s side. I can’t see it from my yard. I can provide
some historic information about how the water would flow but I’m just wondering if that’s part
of that, and I just wanted to show briefly so we can get a little bit more of an idea of what
happened. It will only take me a couple minutes. So first of all here’s a picture. And here’s a
picture of the Wargin house from my house 19 years ago and so this is, all the trees have grown
up. I can no longer see their house but this is my yard right here and the Synstelien’s yard would
be right over here. And if you can see the way that the property was designed was that everyone
from the south, which is two up the hill. So we’re at the highest level of Chanhassen. Highover
Drive. All that water would funnel down through my yard and into the Synstelien’s yard and it
would actually go through, I don’t know if you guys call it a swale or a gully or something like
that but you can see how the property is, here’s the property corner, is actually higher so actually
the water was entering the Synstelien’s yard about 10 to 15 feet to the west of the property line.
It was not flowing on that property line and so if you look at.
McGonagill: Could you orientate me to where I’m looking at? Am I looking north? South?
East? West? Am I south of the Synstelien’s? I’m a little confused.
Tim Block: I am, you’re north of the Synstelien’s on my property. Okay? And you’re looking
at the Wargin house so right here is the property corner between the, this would be. Sorry, this
would be the lot line right here between the Synstelien’s and myself and this would be the lot
line right here between the Wargin’s. The east lot line and this is the north line right here.
McGonagill: Okay thank you. Now I understand where I’m looking.
Tim Block: Okay. And so you can see how all that water wasn’t really flowing on the easement.
The water was flowing in our yards okay. And so when the berm was installed, if you can
imagine Highover Drive. The highest point in Chanhassen, three lots would empty out through
my yard into the Synstelien’s yard and that’s where most of the water was coming from and the,
from my perspective, I don’t want to put words in their mouth was they needed to stop that water
and they needed to stop it badly and so they built the berm. And that berm looks like this. So
this is my house to the left and this is the property line which is the north property line and that is
where the water now comes into there and pools. Flow is now west to those drainage, to the
French drains and that was originally the idea was just to let it stop there. Let it pool there and
let it keep pooling until it could get to a point where it was high enough that it would actually
Chanhassen Planning Commission – August 18, 2020
27
flow into the, into Highover Drive so it would actually pool up here and actually flow all the way
up through here. Okay. And so the neighbors complaints that you heard from were at the time
well we cannot have you damming up the water into our yard. You can see as if, if we dammed
up the water too far well then we’re going to start putting pressure on my, on my foundation and
so lastly here is a picture of what has actually happened. So this is the, one of the rain storms
where we had 6 ½ inches of rain so it’s really just once in a 2 or 3 process but you can see about
10 to 20 feet of water dammed up on that property line. That’s what happened in our yard. And
that’s the water that is being diverted now in those French drains so I cannot tell you whether or
not I’m here to oppose this project because the reality is if it’s just those two walls I can’t have
much to say but I can tell you that it is kind of scary that that much water can be dammed up
onto my property in the city without somebody saying wait a second. Okay. And I think the
City did. They said wait a second. You cannot change that much water without some significant
amount of thought process and there is now the French drains that the Synstelien’s have put in
and it works very nicely about 95 percent of the time. But last Sunday when we had 6 inches of
rain those drains were overwhelmed. Again that is exactly the picture that you see. This is from
before. I don’t have a picture from that night because it was dark but you can see, here if we
look at this. The water goes up to a light that we had installed for a ice rink that we no longer
have so you can see that water up to that marker so you can see on this picture how much water
must actually be pooling here. Alright. And so it’s really significant from a standpoint that it
scares me but at the same point I have to admit that that amount of water is being diverted now
from the east side. All that water is no longer going to the Wargin property and that’s just the
fact. The reality is that on that Sunday night that water build up into a pond onto my property
and eventually hit a height where it had to go somewhere so it flowed to the west over the
Synstelien’s driveway and released that way and so it never really got to the point where it was
impacting my walkout. Or my lookout windows there. Don’t know what would happen if
everything was frozen. Don’t know what would happen if somebody allowed more construction
further west to stop that water going there and so if there is something to be done here about the
grading I would just say that we need to be careful. We need to be careful because right now the
process has worked. The lot is much better looking. The neighborhood has calmed down and
everybody is happy again and so we’re all trying to be supportive of each other and I think that
that’s important because we lived through 2 years of a lot of problems but at the same time I
don’t want the Wargin’s to get more water into their house and I don’t want any more water in
mine.
Weick: Thank you very much. Great perspective and pictures. Thank you very much. Anyone
else present who would like to come forward and offer comment on this item may do so at this
time. I believe we also at one point had the telephone number up on the screen and there it is and
we’ll keep an eye on the phone over here in front of Mr. Ferraro in case someone has the urge to
phone in as well. I will speak slowly and allow people to dial. Nothing coming in? Not yet
okay. I’ll just give it a minute. And take this moment again to thank everybody for their
perspective and detail in offering information on this item for us. It’s incredibly helpful. With
that hearing no one come through on the phone I will close the public hearing portion of this item
and open the item for commissioner discussion. And again I think it’s been working with, I
Chanhassen Planning Commission – August 18, 2020
28
don’t think we need to do a roll call at this moment so if you just wanted to speak up and talk
about this item. I guess I would remind, and I don’t know if there was a slide on this one or not
but I’ll remind you what we are considering. It might be helpful MacKenzie if we put that up but
we’re considering if there was an error in the execution of the city code in regards to Items F and
I as well as a potential variance request as well.
Walters: That is correct. I have the appeal of administrative decision slide up. I believe that’s
the slide the Chair was requesting.
Weick: Okay. And then how does the variance play into this?
Walters: So the applicant is also requesting a variance to allow the structure to be located within
the drainage and utility easement. I would in absolute theory the commission could uphold the
denial of the Encroachment Agreement and then exempt the property from needing an
Encroachment Agreement. However I don’t know that I would recommend that course. I would
recommend either upholding both or denying both.
Weick: Right, okay.
McGonagill: So MacKenzie, Mr. Chairman, Commissioner McGonagill. I’ve got a question for
you. So really the first question is, did the staff error, make an error in the determination of
what, of how they interpreted the code so it’s really an up or down vote on that error, is that
correct?
Walters: Yes. After hearing the position of the appellant and looking at the staff report the
Planning Commission is being asked to determine if in fact staff correctly understood the
situation and correctly applied the city code.
McGonagill: Okay so let’s say we uphold staff. This is a hypothetical question Mr. Chairman.
If we uphold staff but then want to consider the walls. You know Wall A, one of the walls or
both the walls as a variance then that is a separate proceeding? Or not.
Weick: I don’t think it’s not separate no.
Walters: No. They have to remain linked because we, no matter what the City would need to
have an Encroachment Agreement present to have walls located within the drainage and utility
easement so if the Planning Commission believes that the walls, that it’s appropriate for the walls
to be located there they should find that staff made an error and that Encroachment Agreement
should be issued and a variance should be granted to allow the structures to be located within the
D and U.
Reeder: Mr. Chair?
Chanhassen Planning Commission – August 18, 2020
29
Weick: Yes Commissioner Reeder, yes.
Reeder: Question to staff. If the permits had been executed as they were issued in this case
would the neighbors still have the problems that she was describing if it was done right?
Ferraro: To answer your question, if the grading plan was followed overland drainage would
provide any rain water or water in the yards to flow freely through the drainage and utility
easements both to the west and to the north so the neighboring properties on either side, the
drainage would not be adversely impacted.
Reeder: Thank you. So that leads me to the conclusion that staff did exactly as they should
have.
Weick: Thank you.
McGonagill: Commissioner Reeder I agree. Staff you know the, as unfortunate as it is, I
understand that but I don’t see where staff made an error. In fact I believe staff has gone a long
way to work with the homeowner to approve retaining walls for which there was no approval.
Reeder: I agree with you.
McGonagill: And so I think that particularly I get confused. It’s retaining wall I’m going to call
it I, the one that actually comes across the utility easement just from my casual observation. I
walk around this area quite a bit and when I kind of look up that line and I can see how it blocks
it and push the water to the east because it definitely slopes down through there. There is no as
far as I can tell on the survey, there’s no swale at all between those two lots. It just flows
directly into the adjacent driveway as I believe the neighbor next door commented so I can’t hold
them, see a basis for which saying that staff made an error.
Reeder: I totally agree with you on that. I wasn’t trying to indicate that staff was in error. I
think they were correct and it should have been the way they had approved the design.
Weick: Appreciate your comments. I did find and I don’t mean to confuse the issue anymore
but on page 14 there is an attempt I think to clarify what the variance means. If I could read 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.
Walters: That was staff’s understanding of the request we received.
Weick: Okay.
Walters: Again staff’s position is that it’d be very difficult to break the two issues up like that.
Chanhassen Planning Commission – August 18, 2020
30
McGonagill: Well MacKenzie, Mr. Chairman my question though is the issue with the drainage.
It’s not so much, at least from my rudimentary understanding. The walls are causing part of the
issue but isn’t the bigger issue the fact that the original grading plan wasn’t followed and because
of that the whole drainage is screwed up in a way. You follow me MacKenzie?
Walters: I follow you. I will defer to Mr. Ferraro as has the…on that.
McGonagill: Yeah that’s correct. Thank you MacKenzie.
Ferraro: Not really an expert but yes. If the original grading plan had been followed the
drainage we would not be seeing them presently.
McGonagill: Okay. So in granting really what the technical solution, I’m not saying it’s the
proper solution or what the Planning Commission should recommend but the technical, the
proper technical solution, they’ve done a lot already with the French drains. And good on for
doing that. That’s great but really the grade needs to be redone to the correct, to the east of the
property. Is that correct Mr. Ferraro?
Ferraro: Yes that’s correct. The east property line with removal of Wall I and Wall F kind of if
you will stand in the way of that swale from going out towards the street to the north to direct the
drainage along that property line.
McGonagill: Yes that swale needs to be there from what you’re telling is that correct Mr.
Ferraro?
Ferraro: Yes that’s correct and that’s a part of the approved grading plan.
McGonagill: Okay thank you. Mr. Chairman I’d defer back to you.
Weick: Thank you. That’s actually really good clarification. Thank you Mr. Ferraro. Other
comments from commissioners. Thoughts. I know that we’ve covered quite a bit this evening
and I want to be sure you have a moment to collect your thoughts and offer comments. Thank
you to Commissioner Reeder and Commissioner McGonagill for trying to break it down
hopefully to a simpler, to a simpler aspect or decision but certainly open to hear other opinions.
Skistad: I guess I do have, or I’m sorry if I’m speaking over someone else but it seems like from
the testimony of Mr. Block, I think that was his name. The other guy that there has always been
drainage problems with all of these neighbors so I’m, so I’m having trouble understanding how
that slight, how that grading change would have solved all the problems of all the neighbors
when it’s all flowing in that direction from, you know I think the City has done their best. The
neighbors have done their best and I think that this is the unfortunate situation of drainage issue
that there has always been with these properties because none of them apparently were ever
Chanhassen Planning Commission – August 18, 2020
31
correctly graded in the way that they were supposed to work together to funnel it the correct
direction. I mean that’s what I hear everyone’s testimony that’s what I think and that we’re
trying to fix what went on maybe when it was originally built way back when with all the lots
that flow together so it’s not just one lot. One lot unfortunately is, was faced with the dilemma
of trying to solve it. They didn’t solve it and the City didn’t solve it. Nobody solved it but we
solved some problems but we created other problems and I don’t know if there’s another way to
think about it so that we could alleviate this. You know I mean this possibly needs to be more
neighbors working together to get that done. I don’t know what my, you know I can’t
understand how one simple grading on one side would fix all of this. It just doesn’t make sense
to me that one grade would fix it all knowing how much water flows one direction.
Von Oven: Yeah I think it’s a good point. Commissioner Von Oven here. It’s a good point. I
think my opinion would be, I think the City plan and everyone following the rules and going
with the permitting process and what it recommends all of that together is intended to fix the
problem. One lot won’t fix the problem but one lot not complying with what was permitted and
then being issued a reprieve by this body I think opens the door for other lots which then creates
more neighborhoods that fall into this same situation. For me this is a super complicated issue
and one of the most complicated ones I’ve had since I’ve been on this commission but at the
same time it’s very, very simple. Our job here today is to decide whether or not staff made an
error and I don’t see it. Not from the, not from the report. Not from the testimony. I was like I
said I was even surprised to hear how above and beyond staff sounds like they went to
accommodate this whole process and I was glad to hear that. But at the end of the day I don’t
believe that staff made an error and I’ll be voting in favor to affirm the partial denial.
Weick: Thank you Commissioner Von Oven. I would say that at any moment or at any time, do
not want to cut off any commissioners that still want to offer opinion but I will say that I would
accept any form of a motion if someone wanted to, wanted to provide one. We’re certainly.
Randall: Chairman do you mind if I speak real quick?
Weick: Yeah I didn’t want to cut anybody off. I just wanted to say.
Randall: I understand the frustration that they’re dealing with. I built a home in Chanhassen. I
understand the inspection process. I have worked with other cities. Friends that have built
houses in other cities and how hard that can be and difficult at times. I really look at did it
improve, what they did, did it improve the situation and I think it might have helped a little bit
but there was one piece that came up in testimony that I was really concerned about and I wanted
to put it back on the contractor and under testimony the property owner said that the contractor
thought it would go through and, the contractor probably was correct. They thought like oh this
isn’t that big of a deal but it turned out to be a big deal and it didn’t follow the plan on the
drainage issue. There was concerns from neighbors and that was the one piece that I went back
to. I would hope that they can get a variance for this. They can work with homeowners or the
neighbors and maybe they might have to put some money into the neighbor’s property to make it
Chanhassen Planning Commission – August 18, 2020
32
flow and work right but at the same time they mentioned in testimony that they had a lot going
on at the site. There was multiple construction areas going on and it probably got lost in the
clutter. Working for the government, I’ve done that for 20 years, I always try to side with the
citizen on it and I can see that happening. However when it came out that the contractor thought
it would go through that was my deciding point on it that the City did not act, or the City
followed it’s direction and followed what they needed to do in this matter. That’s all I have to
say.
Weick: Thank you Commissioner Randall. I appreciate your perspective. I think we have heard
from everybody but I certainly want to allow you the opportunity to speak again. Give you a
moment to read the motion as it’s presented by City. You are free to amend that as you wish,
whoever is, if you want to propose a motion you are free to adjust this motion as you would like.
McGonagill: Mr. Chairman I’ll propose the motion as written. This is Commissioner
McGonagill;
Weick: Okay.
McGonagill: Chanhassen Board of Appeals and Adjustments affirms the City Engineer
Howley’s partial denial of the Encroachment Agreement and denies that the variance request to
allow the retaining walls to be located with the drainage and utility easement and adopts the
attached Findings of Fact and Decision.
Weick: We have a valid motion from Commissioner McGonagill. Do we have a second?
Von Oven: Commissioner Von Oven seconds.
Weick: Mr. Von Oven seconds. Any final comment from commissioners before we vote?
McGonagill: Mr. Chairman I have one comment. The reason that I believe the variance should
be denied is that, what I’d like to see is a variance come in with some revised grading plans.
What they’re going to do to flow the water. Work with the neighbors as one of the
commissioners talked about. I believe a couple did. What is the solution that you can do here to
do here, to do what needs to happen. Do you follow me Mr. Chairman?
Weick: I do and I appreciate you offering a comment for the record and that will be added to the
record. You know I hear that you would like to see this come to a, you know some type of
cooperation whether it be with neighbors or with the City but as it pertains specifically to the
appeal here, you know and to the specifics of what we’re looking at this evening and what we’re
taking into consideration is whether an error was made by the City. I think we all agree that it
was not. At least what I hear from everybody. But that said you know respecting the amount of
work that’s put into the property and the amount of improvements that’s been made to the
property it sounds like it is your hope that there is still an opportunity for some type of
Chanhassen Planning Commission – August 18, 2020
33
compromise whether it be with neighbors or with the City. Do I understand you correctly
Commissioner McGonagill?
McGonagill: Well I think cooperation with the neighbors, the City and I do believe it will take
some revision to the grading on the property.
Weick: Understood.
McGonagill: …move the water away. You know if this was a variance to come up I would just
say I would be looking for that. What has been changed to make that water move away from the
neighbor to the east.
Weick: Okay, thank you.
McGonagill: But that’s just clarifying adding little comments because that’s not what’s in front
of now. This motion is the one in front of us and go ahead Mr. Chairman.
Weick: Okay thank you. We will do a roll call vote on the motion.
McGonagill moved, Von Oven seconded that the Chanhassen Board of Appeals and
Adjustments affirms the City Engineer Howley’s partial denial of the Encroachment
Agreement and denies that the variance request to allow the retaining walls to be located
within the drainage and utility easement and adopts the attached Findings of Fact and
Decision. All voted in favor and the motion carried unanimously with a vote of 6 to 0.
Weick: The motion passes 6 to 0. MacKenzie any final words?
Walters: This either the neighbors or the applicant do have four days to submit an appeal. If we
do not receive an appeal by 4:30 Monday this decision would be final. If we do receive a written
appeal then it would go before the City Council.
Weick: Thank you for the clarification MacKenzie and thank you again to everybody who
presented and who has put so much into this. We appreciate, we appreciate the depth of this
issue and hope that everyone appreciates the consideration that the commission has given this
evening. We do have one more item this evening. Let’s give it. Yeah we need to take a 3
minute break and then we will restate so give you guys a chance to take a break.
The Planning Commission took a short recess at this point in the meeting.
PUBLIC HEARING:
CONSIDER AN APPEAL OF THE BLUFF CREEK OVERLAY DISTRICT COUNDARY
DETERMINATION MADE BY A CITY ADMINISTRATIVE OFFICER FOR