Written JustificationSeptember 17,2021
CHANHASSEN PI-AJ,Ii/IIJG DEPI
RE: WRITTEN JUSTIFICATION FOR THIRD VARIANCE REQUEST FOR 6609 HORSESHOE
CURVE, CHANHASSEN, MN 55317 COMPLIES WTH THE FINDINGS FOR GRANTING A VARIANCE
PURSUANT TO SECTION 20-58
Dear Planning Division,
As required by the City of Chanhassen, and in follow up to our email communication sent to the Planning
Division on September 3, 2021 confirming our intention to file another variance application (in which all
relevant parties were placed on notice), we respectfully submit this written justification in support of our
variance request.
As we submit this third variance, we wish to highlight that pre-existing conditions of this property are unique
and directly create hardship and problematic characteristics in preparing for newly proposed landscape
design. We have remained communicative with the City of Chanhassen and applicable departments during
this entire process, including, but not limited to, the two previous variance submitlals which were ultimately
approved by the City of Chanhassen. Unfortunately, there is still confusion of allowable work on this
property. We request that this third application and all information herein be reviewed carefully and
collaboratively with appropriate parties and departments.
We submit this variance application to clarify that our property is not a bluff according to the plain language
of the Chanhassen Municipal Code. We seek to formally correct the record through this application since
we would otherwise not be required to submit a variance application for landscape work on the property
were the record to correctly reflect the fact that this property is not a bluff.
6609 HORSESHOE CURVE DOES NOT MEE T THE MUNICIPAL DEFINITION OF "BLUFF"
We request that the City of Chanhassen conclude that this property is not a bluff in an effort to clarify the
extents of what type of landscape design is actually required to apply for permitting or variance.
The topographic and architectural pre-existing conditions were not caused by our actions. Evidence
enclosed with this application confirms that the existing topography was IE! considered a bluff before the
home on this property. The manmade, lqt natural, bluff was created by building the pre-existing home and
retaining the topography with boulder retaining walls.
Permit us to review a nd consider the followinq aoDlicable leoal ouidance:
Chanhassen Municioal Code. According to the Chanhassen City Code, Chapter 1, Section 1-2., a
bluff means "a Ellglal topographic feature such as a hill, cliff or embankment having the following
characteristics.. . ' [a formula follows for grade and elevation characteristic requirements].
I
CITY OF CHAIIHASSEII
RECEIVED
sEP_l 7 2021
City of Chanhassen
Community Development Department
Planning Division
7700 Market Blvd
PO Box 147
Chanhassen, MN 55317
Minnesota Administrative Rules. Minnesota Rules 6106.0050, Subp 8, defines a Bluff to mean "a
@lg!3! topographic feature having..." [a formula follows for grade and elevation characteristic
requirementsl.
Natural tooooraphv defi nitions:
(1) Natural topography means the elevation of a parcel of land prior to any human modification
of the topography (Emphasis added).
(2) Natural topography or "existing topography" means the topography of the lot, parcel, or tract of
real property immediately prior to any site preparation or grading, including excavation or
filling [Emphasis addedl.
Commentarv. ln the Staff Report completed by the City of Chanhassen, dated January 19,2021 ,
the City acknowledged that "this is a unique situation in that a bluff was not present on the
property when the home was constructed. but was created when the retaining walls
constructed along with the home increased the slope's grade to an extent that triggered the
bluffordinance. This change in conditions rendered previously conforming features nonconforming
and necessitated the variance process." See attachment and highlighted text. The City confirmed
in its report that the property was not a naturally occurring bluff butjslellele_Eg.!:lECe-
due to hu man action lnitially, the City stated that our property "may" be on a bluff
(inconclusive). The basis ofthe City's determination that our property is now a bluff was based on
EFN's Boundary & Topographic Survey.
Please find enclosed the original survey of the property completed in 1999 prior to any work being done on
the property. lnthissurvev. no bluff is delineated. ln otherwords, the naturaltopography ofthe property
PRIOR to any work done confirms that this was Nq[ a bluff.
After our first variance submittal, the City of Chanhassen required that we obtain a new survey with the bluff
delineation. Per the email communication from the surveyor on September 9, 2021 , Egan, Field & Nowak,
lnc., at the time of the survey completed June 8, 2020, "we were unaware that the property was a
"manmade" bluff."
The Staff Report from the City of Chanhassen also has already been on the record as to the uniqueness of
our property. As stated, ''A bluff was not present on the property when the home was constructed but
was created when the retaining walls constructed along with the home increased the slope's grade."
ln the most literal sense of the word, "man-made" is the definitional opposite of "natural." This is a clear and
easy-to-understand distinction between bluff and not a bluff for Code interpretation purposes. Had the City
of Chanhassen's municipal code drafters wished to omit the term natural, that would have been an option.
This language modifier of "natural" to the term topographic feature is paramount to this discussion. Either
there is a finding of fact that the City determines that a "natural topographic feature" is the same
as a manmade topographic feature, or the City follows the plain language of the code to conclude
that the property's topographic feature is man-made and therefore not a bluff.
The property's pre-existing manmade condition is further highlighted by the fact that the 'man-made" slope
was constructed with the benefit of the tools, materials, plantings, techniques, and combined experience
and expertise of professional tradespeople so that itwill effectively weather the elements and provide lasting
and effective soil support, drainage control, and erosion prevention for the yard and surrounding areas, and
does so without the need for regulatory intervention.
4.
DISCUSSION
Per the plain language oi the City of Chanhassen's Municipal Code, 6609 Horseshoe Curve does !9! meet
the definition of a "bluff' due to its characteristic of being manmade rather than natural.
VARIANCE REQUEST _ ITEMIZED
Notwithstanding our position that our property is not a bluff, we respectfully submit the following variance
application for specific items.
(1) SHED - LAKESIDE STORAGE. We wish to placea 11'x 12'storageshed atthe lakeside adjacent
to the new modular deck. This placement requires a variance from the lojoot side yard setback
and a variance from the one water-oriented accessory structure. The proposed construction would
not exceed hardcover requirements and would ensure that this shed is moveable and not
permanent as to allow the City of Chanhassen access to any necessary sanitation line. ln our
past conversations with the City Planning Department, the City initially stated it would support either
a deck OR shed, but not both. Practical difficulties contrnue to exist in not having a shed down by
the lake. Upon further reflection, we believe we still have a hardship issue since under the current
situation, we have no place to store any valuable boating or swim equipment, as well as expensive
furniture and tools that are used at the lakeside on a normal basis. We have previously had items
stolen from our boat and lakeshore since they were out in the open and not secured in a locked
shed. Vvhile we certainly appreciate that the City supported our placement of a modular, completely
removable deck that was grandfathered into the location of the old deck and paver patio, this is
only part of the equation. The normal and customary use of this area would logically require some
form of storage to truly enjoy the space and not create practical difficulties.
(2')OPAQUE PRIVACY FENCE AND SECURITY GATE AT FRONT YARD/STREET AND
SIDEYARD. We wish to install a six-foot, six-inch high opaque privacy fence and security gate in
our fiont yard near the street and to the east, place a side yard fence at the same height. The
exact location of the front yard fence and security gate depends in part on the removal of the old
driveway as well as consideration for mature trees. ln our email communications dated August 10,
2021 to MacKenzie Walters, owing to the unique conditions of our property, notably the downward
slope starting at the street and continuing toward our home, a compliant privacy gate and fence at
the driveway would be an important feature to include on our property. We currently have a high
volume of cars that stop at the top of our driveway and gawk, and in some instances accidentally
drive all the way down. Due to the city's deflnitions provided, the City of Chanhassen would only
permit a 3joot-high fence at the driveway side of our property. However, a 3-foot-high fence on a
downward slope will do nothing to provide us with the required privacy or security. As a result, we
are asking for a six-foot six-inch-high opaque fence and gate in the front yard to match the height
of the privacy fence height allowed for side yards. We further highlight the fact that it is reasonably
Sec. 20-58. General condition6 for Erantinq.
To review, a variance may be granted if all of the following criteria are met:
(1) Variances shall only be permitted when they are in harmony with the general purposes and intent
of this chapter and when the variances are consistent with the comprehensive plan.
(2) V\/tren 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.
(3) That the purpose of the variation is not based upon economic considerations alone.
(4) The plight of the landowner is due to circumstances unique to the property not created by the
landowner.
(5) The variance, if granted, will not alter the essential character of the locality.
(6) Variances shall be granted for earth-sheltered construction as defined in M.S. S 216C.06, subd.
'14, when in harmony with this chapter.
Permit us to review the items for the Citv's consideration:
anticipated that our neighbors to the east will be building a large home and near the 1oJoot side
yard setback, which warrants additional privacy considerations for our family.
(3) Per the
previously approved plan, restorative work was undertaken on the hill on west side of property, flat
area before the shoreline, and shoreline to remove noxious and invasive weeds including buckthorn
and its root system, thistle, hemlock, et cetera per the Minnesota Noxious Weed Law, which the
Minnesota Department of Agriculture (MDA) has an Eradication List and Control List. Sections
18.76 to 18.91 contain rules for controlling and eradicating noxious weeds on all lands within the
state. Our landscape contractor also removed rotting tree root systems on the shoreline from
dead trees as they created an unsafe condition for us and our guests as a person's leg(s) would
break though the decaying root system while walking along the shoreline or while walking from the
shoreline into the water and fall-through to the knee or mid-calf level). There are extensive notes
on the restorative work in the plan set (page L001) as contained in the previously approved variance
application. Our landscape architect is currently providing updated restoration noles. Please
Note: our property has had natural, no-mow fescue on our property up the shoreline, except where
the noxious and invasive weeds were growing. This is true for other properties on Lotus
Lake. Wth the most recent Stop Work Order (SWO) dated Septembe|l, 2021, we were told by
the Engineering Department that irrigation and sod are not permitted. These two components of
our plan remain integral to our enioyment and maintenance of the property over the long-term.
Furthermore, the irrigation and grasses were previously included in our past variance applications.
(5) AIR CONDITIONER STE . We seek to
replace a degraded boulder retaining wall on the east side of the property to obscure the air
conditioner for clear sight. Thas is not an extension of a wall, but instead flts within the preexisting
footprint currently provided by the boulders.
(6) GRADING OF EARTH ON LAKESIDE. We request the permission to grade the lakeside area for
enjoyment and recreation at the lakeside. As noted by the enclosed documentation, the physical
characteristics of our property present unique challenges due to the sloping topography and limited
accessible space for use. At the current time, we still do not have reasonable use of our lake
property. Wth a severely sloped property from the road to the house, and again from the front side
to lake, there are essentially two (2) limited flat areas on the lakeside for family recreation, including:
(1) lower patio area by the slider door that is accessible from our walk-out home, and (2) flat patio
area by shoreline. This is the purpose of our request for the flat area at the shoreline.
(7) RIPRAP ON SHORELINE. To prevent erosion and to stabilize shoreline, we would like to install
riprap on the shoreline.
(4) CONCRETE PAD'DECK EXTENSION IN FRONT OF SUNROOi' PLUS STEEL RETAINING
WALL FOR PLACEMENT OF HOT TUB AND PLUNGE POOL. We seek to install a concrete pad
that will serve as the structural support for the two non-permanent items, namely the hot tub and
plunge pool. The Statf Report for the City of Chanhassen contains an error in fact that we wish to
address in this application. The original concrete deck footings remain in the ground (beyond the
frost line) on the property in front ofthe sunroom and run even with the sunroom edge, which should
permit us to rebuild our deck up the original deck footings. The Staff Report states, "Since the
nonconforming deck, bump out, and patio were removed over a year ago, the applicant is not
entitled to replace them, nor can the proposed deck be approved without a variance as a
reduction to an existing nonconformity... " [Emphasis addedl. This is not true since original
footings are still in the ground. See Page 8 of the Staff Report and attached photograph. See
Section 20-72 of the Chanhassen Municipal Code. Lastly, in our previous discussions with the
City, City initially stated that a hot tub is a permanent structure. This is not the case. lf the hot tub
needs to be moved. we can move it.
PRACTICAL DIFFICULTIES AND LIMITED USER ENJOYMENT
We understand that variances are requested when the strict enforcement of the ordinance would cause a
"practical difficulty" because of circumstances unique to the property, such as when the property cannot be
put to reasonable use because of its size, physical surroundings, shape, or topography. ln consideration
ofall equities and hardships in this case, we believe that our application warrants favorable discretion, since
everything we hope to do will improve the use of this property and reduce furlher degradation of the
property. ln addition, we fundamentally believe that our property is not a bluff per the Chanhassen Municipal
Code and therefore we should be excluded from that definition for purposes ofwhat we are permitted to do
on our property.
CONCLUSION
ln the end, our aim is to try and improve the natural enjoyment of the property while balancing the interests
of the natural environment. We have selected products and made changes that we believe improve the
property and preserve the surroundings. Thank you in advance for your due consideration of our request.
Sincerely,
A
Elise Bruner and Brian Bruner