PC Minutes 9-15-20CHANHASSEN PLANNING COMMISSION
REGULAR MEETING
SEPTEMBER 15, 2020
Acting Chair Randall called the meeting to order at 7:00 p.m.
MEMBERS PRESENT: Mark Randall, Eric Noyes, Mark Von Oven, and Laura Skistad
MEMBERS ABSENT: Steve Weick, Michael McGonagill, and Douglas Reeder
STAFF PRESENT: Bob Generous, Senior Planner; and MacKenzie Walters, Associate Planner
PUBLIC PRESENT:
Stacy & Ed Goff 9391 Kiowa Trail
Jamie Anderson 5009 France Avenue
Adam Bender 5009 France Avenue
Randall: Tonight we’re going to have, we have 3 things on the agenda. The items will be
presented by staff. After those are presented by staff we’ll ask for comments from the
commission and questions will be answered. The applicant then will be asked to make your own
comments. We’ll open it to public hearing at that time. If there are any emails summarizing or
for the record will be read. And any person wishing to comment can take, can also comment at
that time. We’re not taking telephone calls are we? We are, are they doing that also?
Walters: Yep.
Randall: Okay. And then we’ll close the public hearing and then we’ll make comments and then
ask for a motion and we’ll go from there so.
PUBLIC HEARING:
CONSIDER A REQUEST FOR VARIANCES TO ENCLOSE AN EXISTING DECK AND
EXTEND A CANTILEVER WITHIN THE SHORELAND SETBACK ON PROPERTY
LOCATED AT 9391 KIOWA TRAIL.
Randall: This is Planning Case 2020-18.
Walters: Whenever you’re ready.
Randall: Go ahead.
Walters: Alright so as the Chair mentioned this is Planning Case 2020-18. It’s a variance
request for 9391 Kiowa Trail. As always if this is decided by unanimous vote or three-fourths
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majority at the Planning Commission the decision is final subject to appeal. Either the applicant
or any affected member of the public have 4 days to appeal the decision of the Planning
Commission. If it is appealed it would go before City Council on October 12th. So as was
mentioned this is a variance to enclose an expanded existing deck and to expand the rear yard
patio on the property. The property is located at 9391 Kiowa Trail. This property is zoned
residential single family. It’s a riparian lot. That means it’s required to have 20,000 square feet
of lot area, 30 foot front and rear setbacks, 10 foot side yard setbacks, a 75 foot shoreland
setback and is restricted to 25 percent lot cover. Shoreland properties are also allowed a 10 foot
water oriented accessory structure set. Have a 10 foot water oriented accessory structure setback
and water oriented accessory structures are limited to 250 square feet in size. The present
conditions of the property are 22.5 percent lot cover. It has a non-conforming 71.8 foot screened
porch lake setback. The stairs of the deck are approximately 70 feet from the lake which is a
non-conforming setback. And the outer extent of the concrete patio here is approximately 68
feet from the lake. There are two non-conforming water oriented accessory structure setbacks.
One has about a 4 foot shoreland setback instead of the required 10 foot and one has about a 4
foot required shoreland setback and a non-conforming 1 foot side yard setback. All other
features of the house appear to meet city code. The applicant is proposing to enclose the deck
area over the screened porch and is also requesting to add a 2 foot cantilever over and towards
the lake. And then they are proposing extending the deck over to match the cantilever line and
then a reconfiguration of the patio that results in about a 1 foot expansion. I tried to color code
stuff so the red line is the 75 foot lake setback. Anything in the shaded green is an existing non-
conformity and the blues and grays are the requested expansions to the existing non-conformity.
The applicant has stated that this variance is necessitated because it’s an older home that needs
an interior remodel to create a dining area. They noted the area covered by the screen porch is
all that impervious surface within the 75 foot shoreland overlay. Also a 75 foot shoreland
setback and the proposed encroachments into the setback are very minor necessitated by the
existing placement of the home and would not be readily visible by neighbors or other members
of the public. So staff reviewed this. Staff looks when we review these type of requests at the
intent of the non-conforming use ordinance and so staff believes that enclosing the area above
the screen porch is a very, very minor intensification. That it’s a request that is necessitated by
the age of the home and the need to modernize it and that it does not meaningful increase the
non-conformity. However staff feels that in the 2 foot cantilever is not necessary to achieve the
goals of updating the home and would represent an expansion of the existing non-conformity.
The non-conforming use states specifically states that additions to new structure should meet
existing setbacks and should not increase so that’s staff’s reason for recommending that all
expansions on the property be kept to the existing setback and staff has drawn the approximate
existing setback line in black and is recommending approval of variances that would allow
enclosing the existing screen above the screen porch and extending that over but maintaining that
existing setback line rather than increasing it. Both the proposed deck and patio expansions
appear to be aesthetic choices and don’t appear to be necessitated by any practical difficulty in
using the property. For that reason staff is recommending granting the variance to enclose over
the screen porch and variances to allow maintaining the existing non-conforming but not
expanding beyond that. With that I’d be happy to take any questions.
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Randall: Anyone have any questions?
Noyes: I guess I have one. In this development how common are variance requests of this
nature and have they generally been granted in the past?
Walters: Yep so what staff does is we look within 500 feet of the property having a variance. In
this case there were not any variances found that were requested or granted within that 500 foot
area. Eyeballing the properties on the aerials which we do to try to determine if the
neighborhood has a pattern of non-conformities, it appears to staff that most of the properties are
probably in a similar situation to this where they conform to most of the ordinance with a
possible slight encroachment into that 75 foot setback but as to date no variances have been
granted.
Von Oven: Do you happen to know how long the 75 foot setback has been a thing?
Walters: I want to say it was established in the 70’s. Mr. Generous do you have a better year for
me on that?
Von Oven: The decade is good enough.
Generous: I wasn’t here in the 70’s.
Walters: I was not implying that.
Generous: Yeah the ordinance was in place then but they actually had a larger setback that you
would average neighboring properties to so that 75 foot was a minimum but.
Walters: If you pulled the average.
Generous: If the neighbors on either side were farther back then you’d have to have even a
farther setback and that was amended in the 90’s.
Randall: Any other questions? No? Seeing no more questions should we hear from the
applicant? I know you’re excited to talk to us so. Yeah go ahead. And then also too we’ll be a
little projected on the screen.
Adam Bender: This is a survey which shows the net results following staff’s recommendation
for granting of the lesser of the two variances and in keeping with the easterly setback of the
existing structure. The original variance that we had applied for is asking for again just 2 feet
more than what is shown here by the, we have a cantilever and…that no foundation work. No
brick work would be occurring any closer to the lakeshore than the home presently lies. We feel
that the neighboring homes are either side will not be impacted by such addition. And my reason
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for doing so is of course more space in an already small home that’s of benefit to our clients.
That is why we are here this evening and be happy to take any technical questions from the City.
Von Oven: I’m sorry if I missed it but are you the neighbor?
Adam Bender: I’m sorry my name is Adam. I’m the applicant representing the contractor and
behind me is an other person from my company and then the clients, the homeowners are here
tonight as well.
Von Oven: Got it, thank you.
Randall: So in looking at the renderings that you have, is that cantilever, is that just the overhang
basically on that second floor that’s going to overhang?
Adam Bender: Right. The limits of the screen porch on the ground floor are going to stay where
it presently lies.
Randall: Okay.
Adam Bender: And then the addition above that which formerly was a deck but that’s the room
we want to move 2 feet closer to the lake.
Randall: Okay.
Adam Bender: And then in keeping with that same line a new small grilling deck in that
southeast corner would keep in line with our addition. For cleanliness. We’re trying to keep the
stairway to grade from the deck as compact and as tucked away as possible. See we are…by the
setback here and the numbers are hard to read on the screen but that does say 10.3 feet so we
were just outside of the setback there. The bottom of the stairs we’re trying to keep that
obviously as far away as possible. I do think I recall city staff commenting that maybe a slight
further encroachment in the bottom of the stairs would be permissible.
Randall: Anyone else have any questions or?
Noyes: I guess I just want to make sure I understand because you basically since staff has
presented us with the original set of information you’ve changed your design a little bit here is
what basically you are saying?
Adam Bender: We haven’t changed the initial request. The only showing something tonight that
is in alignment with what staff has recommended.
Noyes: Got it.
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Adam Bender: So while we’re not altering the request, this is essentially what staff was
recommending approval on. And so this rendering I show before you on the screen compared to
what was originally submitted, you’ll notice there isn’t a vast difference between the two and
that these two exterior facades are flush with one another.
Noyes: So you’ve eliminated the cantilever feature basically?
Adam Bender: We did. We did.
Von Oven: …has got me a little confused earlier so I’m not sure if this is a question for you or
for MacKenzie but I’ll just ask it anyway. So the existing stairs I noted earlier are encroaching
into the setback. The stairs as you’ve got them listed here encroach 2 feet further into the
setback from what I can tell. That’s not really my point. My point is, is that covered in the staff
recommendations? So if we were to recommend, are we just overlooking that extra 2 feet or is
that covered in what’s in the language?
Walters: It’s covered in what’s in the language. So the applicant always has the right to
continue an existing non-conformity. So what the variances are being granted for is any
expansion to that. So for example it might be easier to understand if we noted that the patio that
exists has a non-conforming 7 foot setback. What staff’s recommendation, the motion being
made in staff’s recommendation is silent on that encroachment because it’s an existing
encroachment. But however if you allow them to expand 1 foot beyond that then you need to
grant a variance for everything and then you have to create that 8 foot patio variance. The stairs
were in a similar situation. The current degree of encroachment is not an issue. Staff has no
objection to that. Any expansion to it is when the variance would be required.
Von Oven: Got it. So then the question was for you. Did I misunderstand earlier, is the
proposed stairs ending at 72 feet from the shore whereas the existing ones are ending, or are
sitting 70 feet from the shore?
Adam Bender: The new stair and the existing stair should terminate at roughly the same
location.
Von Oven: Got it, okay. Thank you.
Randall: Got any other questions for?
Noyes: Yeah I just want to kind of walk through that same thought process on the patio. Have
you changed your patio design based on recommendations of staff or is that still the original
design and non-conformance and requirement for a variance?
Adam Bender: Oh right so no we have not changed the design of the patio. This mark here is
what was originally applied for. It looks like it is just beyond the limits of the patio today and if
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that were a requirement I wouldn’t see us having an issue with that. It was not intended to grow
larger than the patio that’s there today…as being a nice size for the homeowners.
Noyes: Thank you. Very helpful.
Randall: Any more questions? Does the homeowner want to speak at all?
Stacy Goff: Sure.
Randall: And your name ma’am.
Stacy Goff: My name is Stacy Goff and myself and my husband and I.
Generous: Speak into the microphone.
Stacy Goff: Sure, sorry. Better?
Generous: Yeah.
Stacy Goff: Would you prefer my mask off? Okay. We’ve been homeowners in the home since
January of this year so we are kind of new to this whole process. But not new to the home so the
home is my childhood home. I was born in the home in 1970 and grew up in the house. It
belonged to my parents and my mom owned it until January when we took over ownership of it.
So as you might have seen in the background it has been badly in need of remodel. The last
remodel was done in 1980 so that is when we contracted with Adam and Jamie and their team to
help us design and then construct something new. So it was really important to me and to us to
maintain as much of the original house and design as we possibly could while still doing a
remodel. The homes that were, so in 1970 when I grew up there this was, for those of you that
are maybe from Chanhassen. This was a gravel road with a dead end and a farm on one side of
us where there’s now a big park so it was a pretty rural area. We were one of only five homes
along the lake so it has obviously changed a lot in the past 50 years. The homes on either side of
us now, one of those used to be a vacant lot. That is a very large home right now and on the
other side of us which was Prince’s property from 1980 until he passed away, that is also a new
built and a very, very large home on the other side of us. And in working with our design
company we really made it clear from the beginning that we did not want something that large.
We didn’t want anything really showy. We just wanted to update the home that we have and
keep it as close as we could to it’s original design. So first I guess I want to thank you for
considering that additional 3 ½ feet that it sounds like staff is recommending that we move
forward with. That part was really important to us based on what we want to do with that upper
kitchen and dining room area. The extra 2 feet that we’re requesting that as you see is more of a
cantilevered space, is truly more of a design feature so it is certainly something that we could
live without. No doubt I have to concede that. It is more of a design feature. It gives us a little
bit more space in the dining room and it does impact the deck and what we can do with the deck
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on that one side because we are limited because of the space going out on that one side for the
deck. We’re very cautious about being new, well me sort of new but really new to the
neighborhood and making sure that our request would not cause any harm to the neighbors. It
does not impede the sight line of any of the neighbors including the ones to our immediate north
and south. We did talk to our neighbors directly and wanted to share with them what our plans
were and letting they know they would probably be receiving a mailing and to please let us know
if they felt like there was anything that we hadn’t thought of considered. We wanted to hear that
from them. We certainly want to get off on the wrong foot and we knew that the neighborhood
sight line was something that you all would look at so they did not indicate that they had any
concern with them. We talked to additional neighbors down Kiowa Trail as well but certainly
the ones immediately to the north and south. Because it’s cantilevered it, the surface, it’s not
going to have any challenges with drainage or the referral earlier to an impervious surface. The
hard surface doesn’t change because it is a cantilever 2 feet over which also from the setback
while it does certainly go 2 feet further than that 3 ½ feet, it is on the upper level. Our house is
not close down to the lake. We have a pretty high retaining wall and then this is actually on the
second level so it is a pretty decent distance from the lake itself. So hopefully that kind of
explained a little bit on kind of why we are requesting what we are requesting. Are there any
questions?
Randall: Does anyone have any questions? Thank you for presenting that. I’m glad that that
option that the staff is recommending will work for you. It’s always sad when it’s just like it
won’t work but at least that will somewhat work for you so. Any, are you one of the concerned?
Jamie Anderson: I’m Jamie Anderson, one of the owners and designers on the project. I just
want to add a couple things that might be overlooked with the improvements that we’re making
to the rear property. There are, there’s a slab, a concrete slab that we’ve removed to improve
you know some of the features in the back so there’s a lot of things that are getting improved on
the property that might want to be looked at as well. Not just you know we’re asking for those 2
foot of cantilever. It might seem simple and something that we could get away from but there
are other things that we’re improving that are helping with the site with the concrete that’s
coming out underneath that deck and stair landing right there so that 2 feet was, when you’re
talking about 2 feet, architecturally it’s not just the dining room space. It’s the flow and the view
which is the most important part of it we’re missing a little bit. The view out this back of the
home, this beautiful lake. It’s really something to consider too so I just wanted to add a little bit
of detail that might have been overlooked. Thank you.
Randall: Thank you. I guess we’ll open up the public hearing aspect of it. Is there anyone from
the public here? Did we receive any emails or phone calls?
Walters: Staff was not contacted by any member of the public.
Randall: Is anyone on hold right?
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Walters: Nope, no one is ringing in.
Randall: Alright. Do we need to give it a few minutes in case anyone?
Walters: I don’t believe so.
Randall: Okay. Alright. Alright we’ll close the public hearing and comments, concerns. Do we
have any comments or concerns?
Walters: One thing staff would like to note, this is just a factual clarification. The deck could be
expanded about 5 feet further to the south because decks, open decks are allowed to encroach up
to 5 feet into the required 10 foot side yard setback. I just mention that because it was mentioned
that the 10 foot side yard constrained deck expansion and again it’s not super, super relevant but
just as a full factual correct that is a possibility.
Randall: MacKenzie is there an issue with the watershed district with the encroachment at all or
anything?
Walters: We received no comments from either the DNR or the watershed on this variance.
Skistad: I was quiet today. I was always looking at the I guess where I’m a little confused is
what is here versus what the presentation was.
Randall: So you’re wondering based on where that rendering B is that MacKenzie presented that
they with the without doing the major variance?
Skistad: Yeah, right. So that they’re still asking for the variance but they presented a picture
without the variance, is that what?
Walters: Correct. My understanding is the applicant’s preference is for the 2 foot cantilever
option. However in good faith effort I believe they showed a rendering of what it would look
like if the commission went with staff’s recommendation instead of their first preference, if
that’s an appropriate way to phrase it.
Adam Bender: Yes sir.
Von Oven: Usually you just give us one recommendation and then we’re forced to up or down.
But this time you actually gave us like Plan B which is the variance as requested. I’m just
curious what made it different this time for you?
Walters: So one of the, so philosophically staff’s prime responsibility is always to provide the
strictest, most consistent with the intent of the code interpretation as our recommendation. The
Planning Commission philosophically exists to provide some discretion and judgment on the
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literal reading of the code. When it comes to variances one of the standards is reasonable use.
That is at some level a judgment call. This is a case where staff felt that the Planning
Commission may feel that reasonable use involved granting the 2 foot cantilever. Staff outlined
a case why we feel our recommendation is appropriate but there are situations when we
anticipate that you know perhaps that reasonable use standard would be interpreted differently
and in those cases we usually provide an alternative motion for what we think is a likely possible
read on that. You of course have every freedom to deviate from any of the proposed motions.
Von Oven: Thank you.
Noyes: I guess just one other comments I would provide is, I could completely agree with the
term reasonable use and I think what’s been presented here, you know it’s not egregious. It falls
into that definition of reasonable use but I do struggle with one other part of it is that we’re
setting a precedent here if we grant the variance so I’m struggling a little bit with what issues are
we creating in the future for other similar properties. I mean the facts kind of show that there’s a
lot of properties on the lake that are built in this era and there’s quite a few that have non-
conformance so what do we do here if we want a variance that says hey you can have an extra 2
feet here. An extra 3 feet here. Are we kind of opening Pandora’s Box for other requests and I
don’t know the answer to that. I’m asking you kind of rhetorically but that’s one of my concerns
about this especially when we’ve got you know their request is saying hey yeah this is a nice to
have you know type of thing. I’m worried about approving a nice to have and still opening up
Pandora’s Box a little bit. I’m not saying I’m against it right now but I’m just, I’m struggling
with that a little bit.
Randall: Any more comments? I agree with you that too. It’s we get into these variances and
setting a precedent. Now I’m at 2. It was great that they have a second plan that is conforming
with what we need them to do and that will work for them. I mean most of the time what, it
won’t work so yeah would I like them to be able to do the cantilever and all that? Yeah it’d look
great but with the setback we just can’t do that so that’s my comment on it so.
Skistad: I guess I would take an opposing view on that. I would say that if it’s, I would err on
the side of the property owner who is trying to do their best to conform and they’re not, I mean
it’s like on a second story of the house as well so it’s not as if they’re putting footings in or doing
something such as that so I would, I tend to err on the side of like I said the property owner
versus a city requirement.
Randall: Would anyone like to make a motion?
Walters: Staff has also prepared an alternative motion.
Randall: What’s the other motion that you prepared?
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Walters: The other motion is granting the variance as requested. The first motion was granting
as staff recommended.
Von Oven: Just one thing I want to make sure of before I sort of finalize my thoughts. You,
there you go. That’s the one. This multi-colored picture, hospital green. Non-conforming patio.
That will remain but be enclosed correct?
Walters: No. What is being enclosed is currently this bump out here that I think is a 12 by 16 I
want to say. Thank you.
Von Oven: Oh the patio is the ground level, never mind. Sorry. So that will be just about even
with the proposed cantilever and what I’m getting at is no element of this house will be any
closer to the lake than it is now. Is that a true statement?
Walters: No. So this black line here represents the existing setback line to the lake so the light
green will be the cantilever’s 2 foot extension into the lake. Full disclosure because I used paint
these lines are not precise and may, you know probably slightly exaggerate the extent of the
encroachment. And they are proposing maintaining an even line with the deck which would also
expand slightly beyond that existing setback to the lake. If you’re speaking in absolute terms
from like the closest edge of that patio towards the lake, nothing would be beyond that existing
but in terms of structural it would move closer if the variance were granted. And as I noted my
understanding is this patio, concrete area is being removed. Correct?
Adam Bender: Correct.
Von Oven: Got it.
Randall: So MacKenzie with the removal of that concrete would their hardscape percentage
remain the same or would it go down?
Walters: I believe it, so my recollection is the permit they applied for showed an increase of
something like 7 square feet of lot cover all told. I believe the removed patio here largely
balances with the proposed addition. Is my memory correct on that?
Adam Bender: Yes, so the variance as applied for, we had a net gain of 227 square feet of
coverage. However that does not take into account this existing patio on the south side of the lot
that has, or will be removed and so I would, I would say that it would be about a wash in the end
result.
Randall: Thank you.
Walters: And I will state the property is under it’s 25 percent lot cover limit.
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Randall: Any more thoughts or concerns after covering some of that aspect?
Noyes: Can you show us your alternative recommendation?
Walters: The variance as requested.
Noyes: So this takes into account the removal of the cantilever?
Walters: No, this one would allow for the cantilever to be present. Staff’s recommendation
which is the 3.2 foot shoreland setback would not allow for the cantilever. The 5.2 foot variance
allows them to have the cantilever and push out 2 feet beyond the existing line.
Noyes: Thank you.
Randall: Anyone like to make a motion?
Skistad: I’ll make a motion on the other one.
Randall: Alright.
Skistad: The Chanhassen Board of Appeals and Adjustments approves the 5.2 foot shoreland
setback variance to permit enclosing and expanding the existing deck and an 8 foot shoreland
setback variance to replace and expand the rear patio subject to the conditions of approval and
adopts the attached Findings of Fact and Decisions.
Randall: Do we have a second on that? Alright I guess we don’t have a second on it so.
Walters: Motion fails for lack of a second.
Randall: We have another motion?
Noyes: I will make a motion here.
Randall: Commissioner Noyes.
Noyes: The Chanhassen Board of Appeals and Adjustments approves the 3.2 foot shoreland
setback variance to permit enclosing and expanding the existing deck subject to the conditions of
approval and denies the 5.2 foot shoreland setback variance for a cantilever and 8 foot shoreland
setback variance for a patio and adopts the attached Findings of Fact and Decision.
Randall: Do we have a second?
Von Oven: I’ll second.
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Commissioner Noyes moved, Commissioner Von Oven seconded that the Chanhassen
Board of Appeals and Adjustments approves the 3.2 foot shoreland setback variance to
permit enclosing and expanding the existing deck subject to the conditions of approval and
denies the 5.2 foot shoreland setback variance for a cantilever and 8 foot shoreland setback
variance for a patio and adopts the attached Findings of Fact and Decision.
1. A building permit must be obtained prior to construction and building must comply with
the Minnesota State Building Code.
2. Eaves may encroach an additional one foot beyond the granted variance as shown in the
plans dated August 3, 2020.
All voted in favor except for Commissioner Skistad who opposed and the motion carried 3
to 1.
Randall: Nay?
Skistad: I mean I would support their decision for this as well but unfortunately I would prefer
the other version for them.
Randall: So we have 3 ayes and 1 nay. Does that move on MacKenzie based on our count?
Walters: Yep as three-fourths majority that is a final decision that can of course be appealed by
the applicant or any member of the public. If we get the appeal by 4:30 Monday this item would
then go before the City Council on October 12th. If not the decision of the commission will
stand.
Randall: Okay, alright. Thank you for coming in tonight.
PUBLIC HEARING:
DISCUSS CODE AMENDMENTS TO REQUIRE ZONING PERMITS FOR ALL
STRUCTURES THAT DO NOT REQUIRE BUILDING PERMITS.
Walters: Yep so public hearing. If the commission’s ready we’ll launch right into these.
Randall: Sounds good.
Walters: Alright the first code amendment to discuss is requiring zoning permits for all
structures. The issues is that structures that residents are interested in constructing in the city
that do not require a building permits and are not included in the list of structures requiring
zoning permits that the City currently has. A lot of times these structures seem they’re things
that shouldn’t require any sort of permit until they get put in a really poorly chosen place and