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06-15-2021CHANHASSEN PLANNING COMMISSION REGULAR MEETING MINUTES JUNE 15, 2021 CALL TO ORDER: Vice Chairman von Oven called the meeting to order at 7:03 p.m. MEMBERS PRESENT: Laura Skistad, Eric Noyes, Mark von Oven, Erik Johnson, Doug Reeder, and Kelsey Alto MEMBERS ABSENT: Steve Weick STAFF PRESENT: Bob Generous, Senior Planner; and MacKenzie Young-Walters, Associate Planner PUBLIC HEARINGS: CONSIDER A REQUEST FOR A TWO-FOOT HEIGHT VARIANCE FOR AN ACCESSORY STRUCTURE ON PROPERTY LOCATED AT 6300 HUMMINGBIRD ROAD Senior Planner Generous presented the staff report on this item. He noted the applicant is Armenak Petrosian and said this is the public hearing and if the item is appealed or does not meet the 75% standard it goes forward to the City Council and is scheduled for June 28, 2021. The specific request is a 2-foot height variance for an accessory structure. City Code permits a 20- foot accessory structure height and this garage/accessory building is 24 feet with a 22-foot height based on City dynamics. 6300 Hummingbird Road is zoned single-family residential and is a .82-acre lot; setbacks are 30-foot front and rear with 10 feet on the side. In 2019 the applicant applied to build a 768-square foot one story (approximately 15-foot tall) accessory structure to replace an existing structure on site. After beginning construction, the applicant modified his plans to a two -story design and completed the building. When the City’s Building Official went out, they discovered that the building was too tall and the applicant was advised to come in and go through the variance process. The applicant would like to keep this building as it is constructed. Staff is recommending that the Planning Commission deny the variance request and require the applicant to revise the plan and reconstruct the structure to meet ordinance requirements. However, if the Planning Commission would like to grant the variance, an alternate motion is also provided. Commissioner Reeder asked if this garage was built as part of an existing house, would it be too tall? Planning Commission Minutes – June 15, 2021 2 Mr. Generous replied no, it would not. If it was part of the principal structure, then the height goes up to 35 feet. He noted he has had several phone calls regarding this item and were all in support of approving the variance request. Armenak Petrosian has lived in Chanhassen for 40 years and owns 6300 Hummingbird Road, which is where his in-laws live. He said it is just as Mr. Generous stated and he never imagined going over and beyond what is required within the City. He made a mistake and is here to answer any questions. Commissioner Noyes asked if Mr. Petrosian did the construction himself or had a contractor working with him. Mr. Petrosian replied he constructed the first floor himself; he poured the concrete himself, and the second floor he did not as he was sick and hired someone to do it for him. It is a typical 10- foot garage with an 8-foot floor and 5:12 pitch which corresponds to the roofline and they were trying to match and blend. Commissioner Noyes asked if Mr. Petrosian is allowed to keep the structure, can he explain future construction plans of tying it into the house. Mr. Petrosian replied the reason he changed the original plans is because he and his wife spoke and eventually, they may wa nt to construct a property there. Whatever they build now, whatever the original roofline was will not fit into the future property because there is not going to be a second floor. Commissioner Reeder asked the timeframe for building on the property. Mr. Petrosian does not know as his father-in-law is 88 years old and he wishes him a long life. Commissioner Reeder would be willing to allow the variance if the Applicant will actually do what he says he would do and perhaps even delay the requirement that he remove it by a couple of years to allow the time to do that and take out a building permit. However, if it is totally indefinite, then he has a problem. Mr. Petrosian said, unfortunately, it depends on when his in-laws both pass away. At that time, the front will be demolished and they will rebuild. Commissioner von Oven asked if the Planning Commission denied the variance, what of the available options has he explored and what will he do? Mr. Petrosian said he does not have many options. He tried to build something that will suit his family and there was no intent to harm anyone, the neighbors, or not comply with the City requirements. The alternative would be to demolish the house and he clarified the second floor in Planning Commission Minutes – June 15, 2021 3 order to comply with the requirements. In order to comply he would need to make the roof almost flat. Commissioner von Oven asked if Mr. Petrosian referred to the outbuilding as the house because his in-laws are living in the outbuilding? Mr. Petrosian replied no, his in-laws are living in the house. Commissioner Noyes asked if the original plan had 8-foot walls and the applicant changed them to 10-foot walls. Mr. Petrosian said no, they were 10 feet on the bottom. Commissioner Noyes said Mr. Petrosian changed the pitch of the roof. Mr. Petrosian noted he added the second floor and custom trusses but it was just a very high- pitched roof. Commissioner Noyes asked when he added the roof, he did not make the outside walls taller? Mr. Petrosian said no. Commissioner Noyes clarified Mr. Petrosian put in a different truss. Instead of having a triangle truss there is more of a 5-sided truss that allows a room above. Vice Chair von Oven opened the public hearing. Mark Sass, a former contractor, noted Mr. Petrosian is a great neighbor and built it right. All of the neighbors around, as far as he knows, have no complaint whatsoever and Mr. Petrosian did a lot of work with the neighbor to the north to grade and get things so that it feels good. His question is, what is the solution? Butcher the building – it is a really nice, solid structure – whether he built a new house in the back and all these future dreams, who knows where they are? He knows this is a precedent but noted they are all okay with it. If there is anything Mr. Sass can do, he is happy to help, he has worked with the City for 40 years and knows all the inspections, etc. Vice Chair von Oven closed the public hearing. Commissioner Reeder asked staff if they looked at what the options would be if the application is denied. Planning Commission Minutes – June 15, 2021 4 Mr. Generous replied as Mr. Petrosian pointed out, he could lower the roof or raise the grade around it so it is not as high. He noted mostly it is in the building construction and they would have t o change the height of the roof peak. Commissioner Reeder asked if the idea of making the ground level higher is feasible or not. Mr. Generous went out to the property and on the west side of the structure it is actually much higher. Mr. Petrosian could alter the grade and it would fit in with his future house plan if he were to do that. Commissioner Reeder asked Mr. Petrosian if he could do that. Mr. Petrosian replied he is not an engineer and cannot speak to the construction business. To his understanding, raising the ground around the garage is not really going to give him anything as then he has to raise the floor of the garage, as well. Otherwise, he will be unable to get into the garage. Associate Planner Young-Walters said technically the way the ordinance reads, grade is measured from highest adjoining grade to mid-point of the highest of the highest gable. Hypothetically that means if on several sides of the structure the grade was two feet higher than it was on, say, the front of the structure where the entrance was, they would measure from the highest grade not the lowest grade. The only exemption to that is if there is more than a 10-foot change in elevation in which case they use lowest grade plus ten. It is arguably using the letter of the Code to defeat the spirit, but in theory it would meet Code. Engineering would have to decide if the drainage would work. Commissioner Alto clarified that would not affect the aesthetics of the building at all so why would they make them add more dirt to one side. She would rather just approve the variance. Mr. Petrosian said actually he already has two feet on one side of the garage because his neighbor has always had a problem with drainage. Mr. Petrosian added two feet between them so the wat er comes to him and he has drainage all the way to the street. He can add more to it if that will satisfy the requirements. Mr. Young -Walters noted it is theoretically possible. Commissioner Noyes noted that precedence is the whole issue here, and Mr. Petrosian does not have good alternatives. In plenty of other municipalities it has migrated towards - rather than asking permission up front - people asking for forgiveness after the fact. He thinks they are trying to avoid that in Chanhassen. Now if someone reads the minutes or sees the video of this, they may think they know how to get around this for the next time and that person will say the City approved it before. Planning Commission Minutes – June 15, 2021 5 The Planning Commission discussed adjusting the grade of the property and the City Code. Mr. Generous clarified the Planning Commission could tell Mr. Petrosian to go back and make changes to the site to bring it into compliance then a variance is not necessary. That way it avoids all the issues of precedent because they are bringing it into compliance with ordinance. Vice Chair von Oven is a proponent of not setting these types of precedents. He noted the mistake was made during the pandemic, not one of the neighbors has complained given the chance – Mr. von Oven clarified if something else were to come before this Commission similar to this, all it would take for him is one neighbor to complain. He noted the combination of neighbors speaking on Mr. Petrosian’s behalf and seeing pictures, it is definitely not out of place, although it is out of place in the Code and staff did exactly the right thing recommending denial. He is trying to talk himself into the fact that this will not necessarily be a precedent and seeing if they can approve. Commissioner Skistad seconded Vice Chair von Oven as those are fair points. After the year that everyone has gone through, making exceptions like this and then determining future cases is case-by-case and facts are different every time. Vice Chair von Oven added Mr. Petrosian’s first statement that in Chanhassen they have a shortage of senior living and this house is being occupied by seniors who have a fantastic place to live on behalf of their son-in-law and daughter. Although they cannot ride on that alone, the combination of all these factors gives him something to say to the next applicant who would truly come in and say they found a way around the system. Commissioner Reeder asked if they should table this and allow the applicant to look at the option of moving the dirt around to see if it is feasible rather than denying it. Commissioner Noyes thought about that same option and the other thing the Commission must keep in mind is that if they deny, Mr. Petrosian has the chance to go before the Council and make the same case and they may have a decision to grant the variance. The applicant is not dead in the water if they table it or vote to deny the variance as written. He still looks at moving dirt around as a band-aid. Commissioner Alto moved, Commissioner von Oven seconded, that the Chanhassen Board of Appeals and Adjustments approve the requested two-foot height variance for an accessory structure subject to the following conditions: 1. the Applicant shall provide revised plans that accurately reflect the constructed accessory structure and 2. the Applicant shall schedule and receive a final inspection. The motion carried with a vote of 4 to 2. Ayes 4, Nays 2 (Reeder, Noyes). Mr. Generous clarified the motion passes but the 75% rule does not, so this acts as a recommendation to City Council. On June 28, 2021 it will go before the City Council. Planning Commission Minutes – June 15, 2021 6 CONSIDER A REQUEST FOR A FENCE VARIANCE ON PROPERTY LOCATED AT 931 LAKE SUSAN HILLS DRIVE Senio r Planner Generous noted this property is a corner lot and the applicant , Alec McKinley, is requesting a variance to put up a privacy fence in what the City Code defines as his front yard. On corner lots the front yard is designated by where the garage is located for access purposes. The property is part of the Lake Susan Hills PUD and is a typical lot of .34 acres with 30-foot front and rear setbacks and 10-foot side setbacks. Staff suggested line of sight triangles so those on the sidewalk can be clearly seen. Staff is recommending approval of the variance request for the six-foot fence and what is designated as the front property subject to the conditions in the staff report which are the site triangles being preserved. Alec and Amy McKinley live at 931 Lake Susan Hills Drive, and said the privacy fence purpose is two-fold for security for their children and for privacy. He noted there is no intention of creating a security threat by rolling their cars out the driveway and injuring anyone, so they understand the site lines and adamantly support that. Commissioner Noyes asked the McKinley’s if the staff suggestions are acceptable to them. Mr. McKinley noted they did not have intention of running the fence right down the property line to the sidewalk but pushing it back a bit. He said 30 feet is pretty big for a site view next to his driveway and he understands that goes with City Code, but if that is what it will take for them to get their fence, they would go for it. Vice Chair von Oven opened the public hearing. Vice Chair von Oven closed the public hearing. Commissioner Skistad moved, Commissioner Noyes seconded, that the Chanhassen Board of Appeals and Adjustments approves a variance to construct a six-foot fence along West Lake Drive, subject to the conditions of approval, and adopts the attached findings of facts and decision. All voted in favor and the motion carried unanimously with a vote of 6 to 0. CONSIDER A REQUEST FOR AN AMENDMENT TO THE INTERIM USE PERMIT TO REMOVE THE CONDITION REQUIRING THE INSTALLATION OF DRIVING RANGE NETS Associate Planner Young-Walters stated this is a continuation of Planning Case 2021-02, the resumption of the golf zone use at 825 Flying Cloud Drive. The applicant s, Brian and Keri Colvin, are requesting that Condition 9 from the I nterim Use Permit (IUP) be removed, which is the condition requiring the installation of driving range nets, particularly the nets across the back of the golf zone driving range. Mr. Young-Walters refreshed the Commissioners on the location, noting it is zoned A2 – Agricultural Estate and is guided in the 2040 land use plan for office and Planning Commission Minutes – June 15, 2021 7 agricultural use. The site is just under 100 acres in size and is currently operating as a golf driving range under IUP 2021-02. Mr. Young-Walters gave a short background on the driving range including amendments, noting it closed down in 2018 and per City Code after 6 months of inactivity the original IUP permit expired. In January 2021, the City Council approved the resumption of use under a new IUP and had a condition that nets be installed by June 14, 2021. This is what the applicant is asking relief from and has stated they want to be allowed to operate the driving range without installing the rear nets as the wetlands are approximately 400 yards away and golfers cannot hit balls further than 300 yards. They also machine and hand-pick balls daily and the previous driving range had not utilized rear nets for 10 years of its operation, a 2020 site visit did not find stray balls, and the applicant has stated if they observe balls in the wetlands, they will voluntarily install the nets. He believes the applicant is still intending to have the side nets present. Staff’s position is that wetland boundaries are not always obvious. The most recent wetland delineation in 1998 expired (wetland delineations are good for three years), showed that the wetland boundary at the time was 275 yards rather than 400 yards from the concrete bunkers where the driving occurs. In the staff report, the Water Resources Coordinator noted that there is significant concern with equipment being operated regularly near and within the wetland and within the wetland buffer. One of the big reasons staff did not require the applicant to get a new delineation when this IUP came through to be resumed is because staff had been under the understanding that the nets would be installed at 230 yards which provides 45 yards of cushion between the last known edge of the wetland and where they would reasonably expect balls to travel. Without the nets, staff is very concerned about ball-picking equipment being used within wetland buffer areas and near the wetland. Staff is recommending denial and that the condition of nets being installed be retained. The applicant is a little confused. He understood that his nets were required to be put in the back; he did not realize that they were talking about side nets and all. From their hitting area, using multiple GPS units off of mats in the hitting stalls within the facility, it is 375 yards right to the edge of the weed line. The wetlands start roughly about 400 feet in. They have two ball picking machines that drive in the center of the driving range to pick the balls. On the outside where the poles would be at the 230-yard mark, they have 5-6 employees every day that do a clean pick by hand; every ball is picked off that property before they go home at night . Mr. Colvin clarified the machine is not driving anywhere near the wetlands. He did not know they were also talking about putting nets up on the sides and stated on the west side; he has not measured the wetlands as they never planned on putting nets on that side because the land goes so far over before hitting the woods – Tiger Woods could not even hit a ball into the wetlands over on that side. He showed an overhead map and explained the distances and wetlands. Commissioner Skistad asked where they hit the balls in looking at the map. Mr. Colvin replied they hit from the building and within the blue boundary marked on screen. Commissioner Alto asked if Mr. Colvin ever intended to put up any nets, whether on the back or the side. Planning Commission Minutes – June 15, 2021 8 Mr. Colvin said after owning, maintaining, and watching for 60 days, he realized that nobody can hit into these wetlands. The previous owner did not have nets, as they had deteriorated, for the last 10 years. Commissioner Alto said wouldn’t the nets also prevent wildlife and birds from crossing the path of the balls if the nets were there. Mr. Colvin replied yes. Commissioner Noyes stated they probably could have issues both ways that the nets would cause issues with the birds. Associate Planner Young-Walters clarified that Condition 9 requires that the nets be installed in compliance with DNR guidelines in 1998. The DNR specified a minimum of a 4.5-foot clearance for the nets as well as maximum heights so that they would not interfere with migrating birds or any animals passing through. Mr. Colvin said having the nets start 4.5-5 feet above the ground and go up actually defeats the whole purpose of having nets. Most balls, about 80-90% that are coming out at 230 yards are already dropping and rolling underneath that 4.5-foot net. Commissioner Reeder asked why Mr. Colvin does not want to put the net up. Mr. Colvin replied he does not feel there is any need for it as none of the balls are entering the wetlands from t he hitting area and it is an expense that as a new business owner he does not want to cover if there is no need for it. As far as everything else, he was given a maintenance list by the City and took care of that, they did the landscaping, put in a rain garden and he felt that was all necessary and was taken care of within 30 days. Mr. Colvin feels like the nets are unnecessary and very costly. Vice Chair von Oven asked how costly the nets are. Mr. Colvin was under the assumption they were putting the nets just in the back. He had one bid just for the back and that was $32,000. He had two other bids for the back and one came in at $28,000 and another at $30,000; out of curiosity he asked for a bid on what it would cost for the nets to go around the who le perimeter and one came in at $89,000 and the other came in at $97,000. Vice Chair von Oven opened the public hearing. Vice Chair von Oven closed the public hearing. Planning Commission Minutes – June 15, 2021 9 Commissioner Skistad said 4.5 feet off the ground does not make sense to her either. It seems that the regulation does not make logical sense and perhaps they should review it. Commissio ner Johnson asked if the 4.5 feet is a regulation or if that is just how they install the nets. Commissioner Skistad noted it is the DNR because they want to let animals through. She said if they let animals through, they also let golf balls through. Mr. Young-Walters said from going through the meeting minutes in the 1990’s, the original net discussion was a balancing act. There was concern about balls traveling into the wetlands, and they have a wetland alteration permit because part of the driving range that is no longer in use went into the wetland at 255 yards. He noted a portion of about 18,000 square feet on screen that was filled in order to allow for the driving range. Staff had been very concerned about long shots going deep into that buffer area and into the wetlands and the compromise was with the nets there a person who hits a high and far ball would be caught by the nets. He noted some will roll further but the goal is to keep them from hitting the wetland. In regards to the location of the wetland, Mr. Young-Walters understands what the applicant is saying, however, one cannot identify a wetland just based on surface vegetatio n. A certified delineator must come out, take soil samples, look at type of soils, hydrology, etc., to know where that boundary is. The last delineation done at this site showed it at 275 feet out from the bunker. He noted wetlands move and without a new delineation there is no way to know if it has moved closer, further back, or zig -zagged around. Mr. Colvin commented regarding a high shot near the 255, to reach that would actually be a 255- yard carry. For those who do not golf, the average PGA Tour player has a 255–275-yard carry, which is impossible for anybody to come to his facility make that let alone total that out. He took all those facts from TrackMan Technology, a database that takes information in from every Tour player. Keri Colvin stated the last City inspection was in 2014 and the nets were not up then. The previous owner closed it in 2018 and Mr. Young-Walters did a complete walkthrough of the property prior to the IUP. Looking back at the previous City Council and Planning Commission minutes, they could not find a single golf ball out in the wetlands or in the woods. The facility had not had nets up for over 10 years at that point. Mr. Young -Walters clarified that inspection was done by himself, a Water Resource Coordinator, and the City Arborist. They did not do an intensive search, they walked out maybe 20-30 yards beyond the end of the poles which is the 230-yard point. In looking at the aerials in 2019, waters were up to the 230-yard pole so anything that would have been there from 2018, beyond that point would not have been there when they conducted that walk through. Planning Commission Minutes – June 15, 2021 10 Commissioner Reeder clarified this requirement for the fence was put in the last time they approved it. Mr. Young-Walters replied this was one of the conditions on the 1998 IUP and was one of the conditions they informed the applicant they would be keeping for the reissued permit and was upheld at City Council when they reissued the permit. Commissioner Reeder asked if the applicant knew that. Mr. Young -Walters said the applicant was given the initial IUP and was told they would be maintaining all conditions and was advised to familiarize himself with it. There was extensive discussion on this condition when he asked for an extension on implementing it before the City Council meeting where this was approved. Commissioner Reeder asked Mr. Colvin if he did not understand that he had to do this or if he did not cost it out. Mr. Colvin understood, he knew the list of things that he had to do. Ever ything else from the City that was requested he completely agrees with, however, once they had the facility open for 60 days, he realized that it just does not make sense to put these nets up because nobody can hit balls anywhere into these wetlands. As a new business owner this is a very costly addition and if it does not have to be put in, he simply does not want to. It is a lot of money to put these nets in to stop pretty much zero balls that would go into the wetlands. Also, to start them 4.5 feet seems like he is really wasting everyone’s time and money. Commissioner Reeder noted it was not in Mr. Colvin’s original business plan to put the nets up. Mr. Colvin replied when he purchased the facility, he never planned on putting nets up as there had not been nets up there in the last 10 years. Commissioner Reeder stated it said in the permit Mr. Colvin received that he had to. Mr. Colvin understands that part. After owning the facility for 60 days he decided to go back to the Planning Commission and City Council and ask them to amend the request of the netting because no one can reach the wetlands. Commissioner Noyes asked Mr. Young-Walters if the DNR is driving the requirement for the netting in t he original permit. If the DNR was sitting here right now, would they say they are not really concerned about this. Mr. Young -Walters replied unfortunately the DNR did not respond to either of the interjurisdictional requests which puts him in an awkward position in trying to speak for them. In reviewing the letter, the DNR sent to the City in 1998, his understanding is that the City was Planning Commission Minutes – June 15, 2021 11 primarily concerned about balls moving into the flood plain and wetland and the DNR was primarily concerned with the animal migrations and wildlife not being impacted. Commissioner Noyes would love to go back and say there have not been nets in the previous 10 years of operation but he does not think that holds a lot of water; just because they were non- compliant does not mean they can be non-compliant going forward. He thinks it is valuable to understand why they would be requesting the fencing, whether it is the City or the DNR. Commissioner Alto noted they also do not have proof that the 10 years without nets did not have an impact, there is just no physical evidence that they can see right now. She said 60 days of being open and not having an impact – the wetlands are not able to speak for themselves in this matter – and if the DNR and the City also thinks it is best, she has to side with them. Vice Chair von Oven asked from a historical perspective, what was the order? Did Mr. Colvin purchase the property and then come to the City for the IUP renewal? Or did he obtain the renewal and then make the decision to purchase the property? Mr. Colvin replied they purchased the property and then came for the renewal of the IUP. Mr. Young-Walters clarified he believes they met before Mr. Colvin finalized the purchase to go over the 1998 IUP and to discuss whether or not the City would be amenable to reissuing it. Vice Chair von Oven said Mr. Colvin had a good feeling that by purchasing the property that he would have a path through the City. Mr. Colvin replied yes. Commissioner Alto moved, Commissioner Reeder seconded, that the Chanhassen Planning Commission recommends that the City Council deny the Applicant’s request to remove Condition 9 from the IUP 2021-02. Commissioner Noyes has a hard time voting to deny because he does not know why it is required to have the nets, yet. He really wants to know if the DNR is the one pushing this because of the wetland issue. At this point in time, he would vote against the motion to deny and perhaps recommend they get more information related to the origin of the netting requirement. Vice Chair von Oven has gone back-and-forth on this one and he stated this is clearly not a surprise for the owners. He does not think one purchases a driving range anywhere around a City and think s that they may not have to get some nets. He also agrees and he is not sure these nets are serving the purpose that was intended. At the end of the day taking the facts and saying if the right thing to do is eliminate the need for these nets, it is not through a variance but is through amending the need for a net next to a wetland within 275 feet. Mr. von Oven said if it had been a surprise to the owners, he would try to find a way to ease that burden. However, if this was not in Planning Commission Minutes – June 15, 2021 12 the business plan, then it wasn’t a very good business plan, or it was a hopeful business plan that the previous owner did not have nets for 10 years so they could perhaps not have nets. He has to be on the side of denying the variance. Commissioner Alto said as they spoke earlier in terms of setting precedence, doesn’t it set the precedent that one can buy a business that is out of compliance and hope that the City will allow them to continue to be out of compliance. Commissioner Skistad is all for supporting and protecting wetlands but she does not feel that this does either. It would have been better if it was addressed before it got to this point, but perhaps one cannot know that until they have had the business and been hitting golf balls for 60 days. She will vote against this motion for those reasons. The motion carried with a vote of 4 to 2. Ayes 4, Nays 2 (Noyes, Skistad) Mr. Generous stated this is a recommendation from the Planning Commission to the City Council on July 12, 2021. Mr. Young-Walters noted staff will do their best to reach out to the DNR and try to clarify their feelings on this condition. He said Staff did reach out to the DNR when the discussion on delaying the condition came up and were not able to get a response, but he promises they will try. APPROVAL OF MINUTES: Approve Planning Commission Minutes dated June 1, 2021. Commissioner Johnson moved to approve the Planning Commission Minutes from June 1, 2021. ADJOURNMENT: Commissioner Skistad moved to adjourn the meeting. All voted in favor and the motion carried unanimously with a vote of 6 to 0. The Planning Commission meeting was adjourned at 8:29 p.m. Submitted by Kate Aanenson Community Development Director