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Findings of Fact - SignedCITY OF CHANHASSEN CARVER AND HENNEPIN COUNTIES. MINNESOTA FINDINGS OF FACT AND DECISION APPROVAL) IN RE: Application of Brain T. Bruner, Esq. on behalf of Elise R. Bruner, Esq. for a variance to replace/rebuilt retaining walls, add a walk-out terrace. and reconfigure a lakeside deck/patio on a property zoned Single-Family Residential District(RSF)- Planning Case 2021-07. On January 19, 2021,the Chanhassen Planning Commission, acting as the Board of Appeals and Adjustments, met at its regularly scheduled meeting to consider the application. The Planning Commission conducted a public hearing on the proposed variance preceded by published and mailed notice. The Board of Appeals and Adjustments makes the following: FINDINGS OF FACT 1. The property is currently zoned Single-Family Residential District(RSF). 2. The property is guided in the Chanhassen Comprehensive Plan for Residential Low Density. 3. The legal description of the property is: Lots 1. Block 1. Alicia Heights 4. Variance Findings—Section 20-58 of the City Code provides the following criteria for the granting of a variance: a. Variances shall only be permitted when they are in harmony with the general purposes and intent of this Chapter and when the variances are consistent with the Comprehensive Plan. Finding: It is the intent of the city's Zoning Code to protect the city's environmental resources by preventing the construction of structures near the top, side, and toe of bluffs as well as limiting the size and nature of structures near lakes; however, property owners have the right to repair and replace nonconforming structures. It is also the intent of the nonconforming use ordinance to encourage property owners with nonconforming structures to reduce the extent of existing nonconformities and bring their properties closer to complying with City Code by allowing them to replace an existing nonconforming structure with a less intensive nonconformity. In this case, the applicant's proposal reduces the size and impact of a nonconforming. water- oriented accessory structure (WOAS), replaces a failing boulder retaining wall with a more environmentally sensitive living wall, and replaces another boulder retaining wall with a smaller concrete wall located further from the top of the bluff. While the footprints of the two walls in places exceed the footprints of the walls they are replacing.they are less impactful 1 than the walls that they are replacing and represent an environmentally responsible solution for a complicated parcel with numerous nonconformities. The proposed deck is replacing a deck, patio, and bump out that was removed from the bluff impact zone in 2018. While the nonconforming use ordinance does stipulate that nonconformities discontinued for more than a year cannot be replaced,the proposed deck has been designed to have minimal impact on the bluff and is much less impactful than what was previously present on the property. Given that it is the intent of the City Code to allow the owners of nonconforming properties opportunities to make reasonable improvements their property, granting a variance to permit thoughtfully designed and environmentally sensitive improvements that remove numerous nonconforming elements is in line with the intent of the City Code and consistent with the Comprehensive Plan. b. When there are practical difficulties in complying with the zoning ordinance. "Practical difficulties" as used in connection with the granting of a variance, means that the property owner proposes to use the property in a reasonable manner not permitted by this Chapter. Practical difficulties include, but are not limited to, inadequate access to direct sunlight for solar energy systems. Finding: The applicant's proposal to add a deck to the property is reasonable given the improvements(deck,patio, and bump out)that were previously present on the property and the presence of broadly similar rear-facing decks and patios present on neighboring properties. Additionally,the presence of steep slopes throughout the rear yard means there is not place where a rear-facing deck could be placed without receiving a variance from the city's bluff ordinance. c. That the purpose of the variation is not based upon economic considerations alone. Finding: The variance request is not solely based upon economic considerations. d. The plight of the landowner is due to circumstances unique to the property not created by the landowner. Finding: The plight of the landowner is due to pre-existing conditions on the property, including the nonconforming location of the house,retaining walls, and water-oriented structure. All of these conditions were present on the property,prior to the applicant purchasing the property and commencing their remodeling and landscaping projects. e. The variance, if granted,will not alter the essential character of the locality. Finding: Pleasant View/Alicia Heights is an older neighborhood with many atypically shaped lots, nonconformities, and variances. The applicant's proposal will result a smaller nonconforming WOAS, a stabilized slope, and the creation of an at-grade deck approximately 92 feet from the lake's Ordinary High Water Level (OHWL). The proposed deck will have less of a visual impact than the deck and patio that were present on the property before the 2018 remodel, and both the proposed retaining wall and WOAS are smaller and less visually obtrusive than what is currently present on the property. The applicant has also worked to create a proposal that is minimally impactful to the property's environmental features. The use of a living wall system instead of a traditional retaining wall will help stabilize the bluff and should prevent further erosion.None of the applicant's proposed improvements will negatively impact the neighboring properties or recreational users of Lotus Lake. f. Variances shall be granted for earth-sheltered construction as defined in Minnesota Statutes Section 216C.06, subdivision 14,when in harmony with this Chapter. Finding: This does not apply to this request. 5. The planning report#2021-07,dated January 19, 2021, prepared by MacKenzie Young-Walters, is incorporated herein. DECISION The Chanhassen Board of Appeals and Adjustments approves a 19-foot bluff impact zone and 29-foot bluff setback variance for the construction of a deck, a bluff impact zone and bluff setback variance for the construction of retaining walls within the bluff, and a 25-foot bluff, 5-foot side yard, and 3-foot shoreland setback variance for a water-oriented structure, subject to the following conditions of approval: 1. A building permit must be obtained before beginning any construction. 2. Building plans must provide sufficient information to verify that proposed building meets all requirements of the Minnesota State Building Code; additional comments or requirements may be required after plan review 3. Retaining walls more than four feet high must be designed by a professional engineer and a building permit must be obtained prior to construction. 4. The applicant shall install tree protection fencing at the furthest point from the trunk as possible around all trees within the grading limits. 5. The applicant shall file for an Encroachment Agreement with the city for any encroachments within public drainage and utility easements. 6. The water-oriented structure shall be constructed of modular, removable decking for review and approval by the city prior to issuance of a building permit. 7. The improvements must substantially conform to the plans dated December 18, 2020." ADOPTED by the Chanhassen Planning Commission this 19t day of January,2021. CITY OF CHANHASSEN BY: Steven Weick, Ch rman g\plan12021 planning cases\21-07 6609 horseshoe curve\findings of tact and decision 6609 horseshoe curve(approval)doc 3