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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