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PC Staff Report 10-19-21Planning Commission Item October 19, 2021 Item Consider a Request for Setback Maximum Size Variances for a Water-Oriented Accessory Structure (WOAS) and a Height Variance to Allow a Six-Foot, Six- Inch High Opaque Fence with the Required Front Yard and Shoreland Setbacks on Property Located at 6609 Horseshoe Curve File No.Planning Case No. 2021-07B Item No: B.3 Agenda Section PUBLIC HEARINGS Prepared By MacKenzie Young-Walters, Associate Planner Applicant Elise Bruner & Brian Bruner 6609 Horseshoe Curve Chanhassen, MN 55317 Present Zoning Single Family Residential District (RSF) Land Use Residential Low Density Acerage .64 Density NA Applicable Regulations Chapter 1, Section 1-2, Rules of Construction and Definitions Chapter 20, Article II, Division 3. Variances Chapter 20, Article II, Division 4. Nonconforming Uses Chapter 20, Article VII. Shoreland Management District Chapter 20, Article XII, “RSF” Single-Family Residential District, Section 20- 615, Lot Requirements and Setbacks Chapter 20, Article XXIII, Division 5. Fences and Walls 60 PROPOSED MOTION The Chanhassen Board of Appeals and Adjustments denies the requested fence height variance and approves a 58-square foot WOAS size variance, a 5-foot side yard setback variance, and 2-foot shoreland setback variance for the construction of a WOAS, subject to the Conditions of Approval, and adopts the attached Findings of Facts and Decision. SUMMARY The applicant is requesting a variance to construct a 6.5-foot high opaque privacy fence within the required front yard and shoreland setbacks and variances from the WOAS maximum size limit, shoreland setback, and side yard setback to add a storage shed to the property’s existing WOAS. BACKGROUND General History In April of 1999, the City approved a two-lot subdivision with variances allowing for a 20% driveway grade and 81-foot shoreland setback.* *Note: At the time this subdivision was proposed, the ordinance required structures maintain the shoreland setbacks of the adjacent properties. This requirement was subsequently repealed and properties are subjected to the current 75-foot shoreland setback. In July of 1999, the City issued a building permit for the construction of a single-family home. In March of 2000, the City issued a building permit to add a deck. In November of 2018, the City issued a building permit for a significant remodel that included the demolition of the existing deck and patio. In June of 2020, the City issued a building permit to add a rooftop deck. In April of 2021, the applicant applied for a building permit in compliance with Variance 2021-07. Several permits for interior work and maintenance are also on file with the City. Variance 2021-07 History On May 21, 2020, the designer contacted staff with a proposal for the site that included a large concrete patio off the rear of the home, a concrete patio and large WOAS near the lake, and a front yard parking pad. On May 22, 2020, staff expressed concerns about the likely presence of a bluff on the property and provided the designer with the sections of the City Code that they believed would apply to the proposal. Staff indicated that the proposal would require multiple variances and that a survey would be required to determine the exact nature and extent of the variances. 61 On June 16, 2020, the designer sent a revised plan and requested a meeting with staff to discuss potential variances. On June 18, 2020, staff met with the applicant’s designer to discuss the proposed project. During the meeting, staff expressed concern regarding the proposed size and placement of the WOAS, proposed front yard parking pad, and presence of impervious surface within the bluff impact zone. On July 16, 2020, staff and the designer met to discuss the proposed project. During the meeting, staff expressed concern regarding the proposed size and placement of the WOAS, but was supportive of the plans to stabilize the bluff and proposed pervious patio above the bluff. On November 20, 2020, staff and the designer met to discuss the proposed project. The proposed WOAS had been scaled back to address staff’s concerns. On November 30, 2020, staff and the designer met to discuss the proposed project. No significant concerns were raised. On December 18, 2020, the applicant submitted the variance request. On January 19, 2021, the Planning Commission approved 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 retraining walls within the bluff, and a 25-foot bluff, 5-foot side yard, and 3-foot shoreland setback for a WOAS. On June 4, 2021, the applicant submitted a variance request to increase the width of the deck from 12 to 14 feet, replace the western concrete window well and retaining wall with a living wall system, and add a 9-foot by 9-foot equipment pad and associated retaining wall to the east of the house. On June 17, 2021, staff contacted the applicant expressing concern over the proposed equipment pad and associated retaining wall’s encroachment into the bluff, and requested that the applicant investigate the possibility of relocating or modifying the proposed equipment pad. On June 22, 2021, the applicant agreed to remove the 9-foot by 9-foot pad and associated retaining wall, revising the design to work within the existing boulder wall and AC pad’s encroachment into the bluff setback. On July 6, 2021, the Planning Commission approved a 20-foot bluff impact zone and 30-foot bluff setback variance for the construction of a deck and a bluff impact zone and bluff setback variance for the construction of retaining walls within the bluff. On August 20, 2021, staff received a complaint that work on the site was exceeding what was permitted by the variance. Staff conducted an inspection and found that no permit had been issued and that work was being conducted by the lakeshore. A stop work order was issued. Subsequently, the applicant’s contractor received a zoning permit for the deck and stairs and this portion of the stop work order was lifted. He was informed that a grading permit would be needed to resume work on the slope. From August 20, 2021 to September 16, 2021, staff and the applicant and their representatives had multiple discussions centering on the scope of work being conducted on the property, what had been approved as part of the variance, what ordinances and restrictions applied, and what permits were needed. 62 On September 17, 2021, the applicant submitted a variance request asking the City to either revise their determination that a bluff was present on the property or grant a series of variances from the provisions of the bluff ordinance. The applicant also requested variances to add a shed to their existing WOAS and install a 6.5-foot opaque privacy fence within the front yard setback. On September 21, 2021, staff, after consulting with the City attorney, acknowledged that the property was not subject to the bluff ordinance and provided the applicant with a list of the permits that would be required for their proposed project. In this response, staff identified the proposed WOAS and front yard privacy fence as items which would still require variances. On September 27, 2021, the applicant updated their variance request to reflect the response they received from staff on September 21, 2021. DISCUSSION The applicant is requesting that the City grant them a variance to install a 6.5-foot high opaque privacy fence and security gate. The fence would run across the front of the property and extend down the side lot lines to the lake. Since the City Code limits the height of opaque fences in the front yard to 3 feet and the height of all fences within the 75-foot shoreland setback to 3.5 feet, a variance is required to permit the proposed fence height and configuration within these setbacks. The applicant is also requesting variances to allow them to add a 132-square foot shed to the property’s existing 225.5-square foot WOAS, a deck less than 30 inches in height. The resulting structure would be 357.5 square feet in size with an 8-foot shoreland setback and a 1-foot side yard setback. Since WOASs are limited to a maximum of 250 square feet and subject to 10-foot side and shoreland setbacks, variances from these standards would be required to accommodate the proposed structure’s size and placement. The applicant has noted that they have had issues with passersby stopping to look at their home and even entering their driveway to get a view of the house. They have stated that due to the downward slope on their property the 3-foot opaque fence permitted by the City Code would not provide adequate privacy. They also observe that they have a rooftop patio which necessitates additional privacy from the street. Finally, they note concerns that the neighbors will likely build a home near the 10-foot side yard setback, which could further impact their family’s privacy. Regarding the proposed WOAS, the applicant has stated that the shed is necessary due to the fact that they do not have an area in which to store valuable equipment (patio furniture, boats, etc.) down by the lake and that they have had previous issues with theft due to the inability to secure their property. They observe that the site’s topography creates a difficulty in continuing hauling items from the home to the lake and that a secure storage area is needed to remedy this. Finally, they note that the proposed shed would not exceed the property’s lot cover limit and would be of a moveable design so as to not impede access to the City’s sanitary sewer line. In evaluating the requested fence height variances, staff cannot find that the applicant meets the conditions required for granting the requested variance. The applicant’s security concern could be addressed through the installation of a 6.5-foot ornamental fence and security gate within the front yard setback, which is permitted by the City Code, and their privacy concerns can be addressed through the use of vegetative screening, as permitted by the City Code. The privacy concerns cited in relation to their neighbor’s home are shared by many properties in the city where structures are built to the allowed 10-foot setback, and an opaque privacy fence would be permitted by City Code along the side yard between the two structures. The concerns expressed about the need for privacy due to the rooftop patio 63 is the result of the property owner’s decision to construct an unscreened rooftop patio and not circumstances unique to the property. Finally, the requested fence height variance for an opaque privacy fence within the 75-foot shoreland setback is not justified by any unique feature of the applicant’s property and is not consistent with the City’s goal of maintaining a visually open and unobstructed shoreline. Were this variance to be granted, every other riparian property in the city would be able to request and be granted the variance due to a desire for increased privacy. For these reasons, staff is recommending the Planning Commission deny the requested fence height variances. Regarding the proposed WOAS, every riparian property in the city is subject to the same WOAS restrictions and property owners often must choose between lakeshore storage and recreational amenities. Staff believes that the WOAS regulations play an important role in limiting the amount of lot cover, both pervious and impervious, installed along the lake and in preserving the shoreline’s aesthetics. For these reasons, staff cannot support the variance as requested; however, the property did have a nonconforming 308-square foot WOAS that was located seven feet from the ordinary high water level (OHWL) and five feet from the side yard setback. Under Variance 2021-07, the new deck was required to maintain those setbacks. While replacing the pre-existing patio and deck with a shed would be considered an expansion of the nonconformity, staff supports granting a variance to allow the applicant a 308-square foot WOAS with an 8-foot shoreland setback and 5-foot side yard setback, consistent with the footprint of the pre-existing WOAS. A full discussion can be found in the attached staff report. RECOMMENDATION Staff recommends the Planning Commission, acting as the Board of Appeals and Adjustments, deny the requested fence height variance and approve a 58-square foot water oriented accessory structure (WOAS) size variance, a 5-foot side yard setback variance, and 2-foot shoreland setback variance for the construction of a WOAS, subject to the Conditions of Approval, and adopt the attached Findings of Facts and Decision. 1. The applicant shall consult with City staff and apply for required permits, either building or zoning, for all proposed structures (i.e. shed and deck). 2. No construction can occur until the required permits identified in Condition 1 are issued. 3. The applicant shall file for an Encroachment Agreement with the City for any encroachments within public drainage and utility easements. 4. The shed and its appurtenances shall be constructed so that it is removable from the public utility easement, for review and approval by the City prior to issuance of the required permit. ATTACHMENTS Staff Report Findings of Fact and Decision (Partial Approval) Variance Document (Partial Approval) Written Justification Written Justification - Updated 9-27-21 Plan Set Photos and Surveys Water Resources Review Engineering Review 64 Affidavit of Mailing Letter from Steve and Jeannie Wanek 10-15-2021 65 CITY OF CHANHASSEN PC DATE: October 19, 2021 CC DATE: November 8, 2021 REVIEW DEADLINE: November 16, 2021 CASE #: PC 2021-07B BY: MYW SUMMARY OF REQUEST: The applicant is requesting a variance to construct a 6.5-foot high opaque privacy fence within the required front yard and shoreland setbacks and variances from the water oriented accessory structure (WOAS) maximum size limit, shoreland setback, and side yard setback to add a storage shed to the property’s existing WOAS . LOCATION:6609 Horseshoe Curve OWNER:Elise and Brian Bruner 6609 Horseshoe Curve Chanhassen, MN 55317 PRESENT ZONING: “RSF” –Single-Family Residential District 2040 LAND USE PLAN: Residential Low Density ACREAGE:.64 acres DENSITY: NA LEVEL OF CITY DISCRETION IN DECISION-MAKING: The City’s discretion in approving or denying a variance is limited to whether or not the proposed project meets the standards in the Zoning Ordinance for a variance. The City has a relatively high level of discretion with a variance because the applicant is seeking a deviation from established standards. This is a quasi-judicial decision. Notice of this public hearing has been mailed to all property owners within 500 feet. PROPOSAL/SUMMARY: The applicant is requesting that the City grant them a variance to install a 6.5-foot high opaque privacy fence and security gate. The fence would run across the front of the property and extend down the side lot lines to the lake. Since the City Code limits the height of opaque fences in the front yard to three feet and the height of all fences within the 75-foot shoreland setback to 3.5 PROPOSED MOTION: “The Chanhassen Board of Appeals and Adjustments denies the requested fence height variance and approves a 58-square foot water oriented accessory structure size variance, a 5-foot side yard setback variance, and 2-foot shoreland setback variance for the construction of a water oriented accessory structure, subject to the Conditions of Approval, and adopts the attached Findings of Facts and Decision.” 66 6609 Horseshoe Curve Request for Variance October 19, 2021 Page 2 feet, a variance is required to permit the proposed fence height and configuration within these setbacks. The applicant is also requesting variances to allow them to add a 132-square foot shed to the property’s existing 225.5-square foot WOAS, a deck less than 30 inches in height. The resulting structure would be 357.5 square feet in size with an 8-foot shoreland setback and a 1- foot side yard setback. Since WOASs are limited to a maximum of 250 square feet and subject to 10-foot side and shoreland setbacks, variances from these standards would be required to accommodate the proposed structure’s size and placement. The applicant has noted that they have had issues with passersby stopping to look at their home and even entering their driveway to get a view of the house. They have stated that due to the downward slope on their property, the 3-foot opaque fence permitted by the City Code would not provide adequate privacy. They also observe that they have a rooftop patio which necessitates additional privacy from the street. Finally, they note concerns that the neighbors will likely build a home near the 10-foot side yard setback, which could further impact their family’s privacy. Regarding the proposed WOAS, the applicant has stated that the shed is necessary due to the fact that they do not have an area in which to store valuable equipment (patio furniture, boats, etc.) down by the lake and that they have had previous issues with theft due to the inability to secure their property. They observe that the site’s topography creates a difficulty in continuing hauling items from the home to the lake and that a secure storage area is needed to remedy this. Finally, they note that the proposed shed would not exceed the property’s lot cover limit and would be of a moveable design so as to not impede access to the City’s sanitary sewer line. In evaluating the requested fence height variances, staff cannot find that the applicant meets the conditions required for granting the requested variance. The applicant’s security concern could be addressed through the installation of 6.5-foot ornamental fence and security gate within the front yard setback, which is permitted by the City Code, and their privacy concerns can be addressed through the use of vegetative screening, as permitted by the City Code. The privacy concerns cited in relation to their neighbor’s home are shared by many properties in the city where structures are built to the allowed 10-foot setback, and an opaque privacy fence would be permitted by City Code along the side yard between the two structures. The concerns expressed about the need for privacy due to the rooftop patio is the result of the property owner’s decision to construct an unscreened rooftop patio and not circumstances unique to the property. Finally, the requested fence height variance for an opaque privacy fence within the 75-foot shoreland setback is not justified by any unique feature of the applicant’s property and is not consistent with the City’s goal of maintaining a visually open and unobstructed shoreline. Were this variance to be granted, every other riparian property in the city would be able to request and be granted the variance due to a desire for increased privacy. For these reasons, staff is recommending the Planning Commission deny the requested fence height variances. Regarding the proposed WOAS, every riparian property in the city is subject to the same WOAS restrictions and property owners often must choose between lakeshore storage and recreational amenities. Staff believes that the WOAS regulations play an important role in limiting the amount of lot cover, both pervious and impervious, installed along the lake and in preserving the 67 6609 Horseshoe Curve Request for Variance October 19, 2021 Page 3 shoreline’s aesthetics. For these reasons, staff cannot support the variance as requested; however, the property did have a nonconforming 308-square foot WOAS that was located seven feet from the ordinary high water level (OHWL) and five feet from the side yard setback. Under variance 2021-07, the new deck was required to maintain those setbacks. While replacing the pre-existing patio and deck with a shed would be considered an expansion of the nonconformity, staff supports granting a variance to allow the applicant a 308-square foot WOAS with an 8-foot shoreland setback and 5-foot side yard setback, consistent with the footprint of the pre-existing WOAS. APPLICABLE REGULATIONS Chapter 1, Section 1-2, Rules of Construction and Definitions Chapter 20, Article II, Division 3. Variances Chapter 20, Article II, Division 4. Nonconforming Uses Chapter 20, Article VII. Shoreland Management District Chapter 20, Article XII, “RSF” Single-Family Residential District Section 20-615, Lot Requirements and Setbacks Chapter 20, Article XXIII, Division 5. Fences and Walls BACKGROUND General History In April of 1999, the City approved a two-lot subdivision with variances allowing for a 20% driveway grade and 81-foot shoreland setback.* *Note: At the time this subdivision was proposed, the ordinance required structures maintain the shoreland setbacks of the adjacent properties. This requirement was subsequently repealed and properties are subjected to the current 75-foot shoreland setback. In July of 1999, the City issued a building permit for the construction of a single-family home. In March of 2000, the City issued a building permit to add a deck. In November of 2018, the City issued a building permit for a significant remodel that include the demolition of the existing deck and patio. In June of 2020, the City issued a building permit to add a rooftop deck. In April of 2021, the applicant applied for a building permit in compliance with Variance 2021-07. Several permits for interior work and maintenance are also on file with the City. Variance 2021-07 History 68 6609 Horseshoe Curve Request for Variance October 19, 2021 Page 4 On May21, 2020, the designer contacted staff with a proposal for the site that included a large concrete patio off the rear of the home, a concrete patio and large WOAS near the lake, and front yard parking pad. On May 22, 2020, staff expressed concerns about the likely presence of a bluff on the property and provided the designer with the sections of the City Code that they believed would apply to the proposal. Staff indicated that the proposal would require multiple variances and that a survey would be required to determine the exact nature and extent of the variances. On June 16, 2020, the designer sent a revised plan and requested a meeting with staff to discuss potential variances. On June 18, 2020, staff met with the applicant’s designer to discuss the proposed project. During the meeting, staff expressed concern regarding the proposed size and placement of the WOAS, proposed front yard parking, and presence of impervious surface within the bluff impact zone. On July 16, 2020, staff and the designer met to discuss the proposed project. During the meeting, staff expressed concern regarding the proposed size and placement of the WOAS but was supportive of the plans to stabilize the bluff and proposed pervious patio above the bluff. On November 20, 2020, staff and the designer met to discuss the proposed project. The proposed WOAS had been scaled back to address staff’s concerns. On November 30, 2020, staff and the designer met to discuss the proposed project. No significant concerns were raised. On December 18, 2020, the applicant submitted the variance request. On January 19, 2021, the Planning Commission approved 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 retraining walls within the bluff, and a 25-foot bluff, 5-foot side yard, and 3- foot shoreland setback for a WOAS. On June 4, 2021, the applicant submitted a variance request to increase the width of the deck from 12 to 14 feet, replace the western concrete window well and retaining wall with a living wall system, and add a 9-foot by 9-foot equipment pad and associated retaining wall to the east of the house. On June 17, 2021, staff contacted the applicant expressing concern over the proposed equipment pad and associated retaining wall’s encroachment into the bluff, and requested that the applicant investigate the possibility of relocating or modifying the proposed equipment pad. 69 6609 Horseshoe Curve Request for Variance October 19, 2021 Page 5 On June 22, 2021, the applicant agreed to remove the 9-foot by 9-foot pad and associated retaining wall, revising the design to work within the existing boulder wall and AC pad’s encroachment into the bluff setback. On July 6, 2021, the Planning Commission approved a 20-foot bluff impact zone and 30-foot bluff setback variance for the construction of a deck and a bluff impact zone and bluff setback variance for the construction of retaining walls within the bluff. On August 20, 2021, staff received a complaint that work on the site was exceeding what was permitted by the variance. Staff conducted an inspection and found that no permit had been issued and that work was being conducted by the lakeshore. A stop work order was issued. Subsequently, the applicant’s contractor received a zoning permit for the deck and stairs and this portion of the stop work order was lifted. He was informed that a grading permit would be needed to resume work on the slope. From August 20, 2021 to September 16, 2021, staff and the applicant and their representatives had multiple discussions centering on the scope of work being conducted on the property, what had been approved as part of the variance, what ordinances and restrictions applied, and what permits were needed. On September 17, 2021, the applicant submitted a variance request asking the City to either revise their determination that a bluff was present on the property or grant a series of variances from the provisions of the bluff ordinance. The applicant also requested variances to add a shed to their existing WOAS and install a 6.5-foot opaque privacy fence within the front yard setback. On September 21, 2021, staff, after consulting with the City attorney, acknowledged that the property was not subject to the bluff ordinance and provided the applicant with a list of the permits that would be required for their proposed project. In this response, staff identified the proposed WOAS and front yard privacy fence as items which would still require variances. On September 27, 2021, the applicant updated their variance request to reflect the response they received form staff on September 21, 2021. SITE CONSTRAINTS Zoning Overview The property is zoned Single-Family Residential District and is located within the Shoreland Management District. This zoning classification requires riparian lots to be a minimum of 20,000 square feet, have front and rear yard setbacks of 30 feet, side yard setbacks of 10 feet, a shoreland setback of 75 feet, and limits parcels to a maximum of 25 percent lot cover. Residential structures are limited to 35 feet in height, and properties are allowed one WOAS up to 250 square feet in size within the 75-foot shoreland setback. The shoreland ordinance allows 70 6609 Horseshoe Curve Request for Variance October 19, 2021 Page 6 the construction of stairways, lifts, and landings, subject to design criteria. A portion of the property is also encumbered by a sanitary sewer easement. The lot is 27,878 square feet with 6,377 square feet (23 percent) lot cover. The home had a preexisting WOAS which was a 308-square foot structure with a 5-foot side yard setback and 7- foot shoreland setback. This WOAS was located within the City’s sanitary sewer easement. The WOAS was replaced with a 225.5-square foot WOAS with a 5-foot side yard setback and 3-foot shoreland setback. The house and other features appear to meet all other requirements of the City Code. Bluff Creek Corridor The property is not encumbered by the Bluff Creek Overlay District. Bluff Protection There is not a bluff on the property. Note: Based on the initial survey provided, staff determined that a bluff was present on the property. The property owner subsequently demonstrated that the City’s definition of bluff would not apply to the property and staff has acknowledged that the original bluff determination was in error. Floodplain Overlay This property is not within a floodplain. Shoreland Management The property is located within a Shoreland Protection District. This District requires a 75-foot structure setback from the lake’s OHWL and limits the property to a maximum impervious surface coverage of 25 percent. The shoreland ordinance permits one WOAS to be located within the 75-foot shoreland setback, provided that it is at least 10 feet from the OHWL, no larger than 250 square feet, and has a maximum height of 10 feet. Stairways, lifts and landings providing access up and down bluffs and steep slopes to shore areas are also permitted so long as they do not exceed four feet in width, do not cause soil erosion, and meet other design criteria. Fences within the shoreland setback are limited to 3.5 feet in height. Wetland Protection There is not a wetland located in the development site. NEIGHBORHOOD 71 6609 Horseshoe Curve Request for Variance October 19, 2021 Page 7 Pleasant View/Alicia Heights The plat for Pleasant View was recorded in March of 1910 and Alicia Heights, a two-lot subdivision within Pleasant View, was recorded in June of 1999. Pleasant View is one of the oldest neighborhoods in the city and it predates the establishment of the City of Chanhassen and its ordinances. The neighborhood is located on a peninsula jutting into Lotus Lake and this combined with challenging topography meaning it has a large number of atypically shaped lots, many of which do not conform to current City standards. Some of the homes are original to the neighborhood, while others are new construction or have been extensively updated. Many properties have nonconforming elements or have received variances due to the age of the neighborhood and atypical configuration of the lots. Variances within 500 feet: 6605 Horseshoe Curve (PC 1991-09): 17’ shoreland setback (deck) – Approved 6609 Horseshoe Curve (PC 2021-07): 19’ bluff impact zone and 29’ bluff setback (deck), bluff impact zone and bluff setback (retaining wall), and 25’ bluff, 5’ side, and 3’ shoreland setback (WOAS) – Approved* (PC 2021-07A): 20’ bluff impact zone and 30’ bluff setback (deck) and bluff impact zone and bluff setback (retaining wall) – Approved* 6631 Horseshoe Curve (PC 1996-07): 15’ shoreland setback (addition and attached garage) – Approved 6677 Horseshoe Curve (PC 1982-03): 25’ front and 7’ side setback (detached garage) – Approved 6681 Horseshoe Curve (PC 1986-15): 6’ side setback (detached garage) – Withdrawn (PC 1987-03): 6’ side setback (detached garage) – Approved (PC 2002-10): 16’ front and 5’ side setback, 4% LC (detached garage and addition) – Approved 72 6609 Horseshoe Curve Request for Variance October 19, 2021 Page 8 6691 Horseshoe Curve (PC 1987-14): 19.6’ front setback (detached garage) – Approved 6697 Horseshoe Curve (PC 1985-02): 9.03’ side setback (addition, intensify nonconforming) – Approved *Bluff portions of the variance subsequently rendered moot by determination that no bluff is present on the parcel. ANALYSIS Fence Height The plans submitted by the applicant show a 6.5-foot opaque fence with a security gate extending across the front of the property, approximately 10 feet from the front lot line at its closest point, and then running down the side lot lines to the OHWL. The City Code limits opaque fences within the 30-foot front yard setback to a maximum height of three feet and all fences within the 75-foot shoreland setback to a maximum height of 3.5 feet. The applicant is requesting a variance from these restrictions due to concerns about cars entering their driveway and desire for increased privacy. Specifically, they have stated that the house’s location below the elevation of the road, presence of a rooftop patio, and anticipated construction of a neighboring home near the side lot line necessitate a deviation from the City’s fence standards. The stated security and safety concerns the applicant raises regarding cars entering the driveway can be addressed by the construction of a 6.5-foot open fence, i.e. a fence with no more than 20 percent opacity, and associated security gate. This type of fence is permitted in the front yard of properties by the City Code allowing the applicant to address the stated safety and security concerns without the need for a variance. While the open fence permitted by the City Code would not address the applicant’s stated concerns about the home’s visibility from the road, it must be noted that many houses within the city are readily visible from the public right of way and that many homes along Horseshoe Curve are located significantly below the elevation of the public right-of-way, as are homes in other areas of the city. The City prohibits the placement of high, opaque fences within the front yard setback in order to create an attractive and consistent neighborhood aesthetic and ensure the sight 73 6609 Horseshoe Curve Request for Variance October 19, 2021 Page 9 distance triangle, the area near intersection of roads and driveways where visual obstructions present a traffic safety risk, remains unobstructed. The general trend for cities to require open and unobstructed front yards is one of the reasons why many homes in the United States locate their family and recreational areas within the rear yard. The applicant’s home conforms to this trend with no front yard recreation amenities and the at-grade deck and other indicated family areas, except the rooftop deck, being screened from view from right-of-way by the building. Residents desiring a more private front yard have the option of utilizing vegetation, so long as it does not obstruct necessary sight lines. Prior to the applicant’s decision to realign their driveway as part of their recent and ongoing remodeling and landscaping project, it appears that the parcel was fairly well screened from public view by its landscaping. The increased visibility of the home is at least partially the result of the removal of this vegetation and a comparable level of screening could be provided though landscaping. The applicant’s concerns about the visibility of the rooftop deck from the street are the result of their decision to construct the rooftop deck in 2020 and realign the driveway which created a direct and unobstructed line of sight from the road to the deck. The applicant has the ability to extend a wall from the house across the north side of the roof top deck or construct another barrier along that side of the deck to screen occupants of the deck from public view in order to address their stated privacy concerns without a variance. Regarding the applicant’s expressed concern about the potential for the neighbor to construct a home as close as 10 feet to the side lot line, the presence of a home meeting the required setbacks would not justify the requested variance. Both the applicant’s property and their neighbors’ homes and structures are subject to the same yard setbacks as the majority of other riparian properties zoned RSF in the city. The neighbor’s home would need to be situated in the buildable area setback 30 feet from the front lot, 75 feet from the lake, and 10 feet from the side lot lines. 74 6609 Horseshoe Curve Request for Variance October 19, 2021 Page 10 The house would also be subject to same 35-foot height limit as all other RSF properties. Every portion of the side yard located outside of those setbacks that could be shared with the neighbor’s home is entitled to construct a 6.5-foot opaque fence and a 6.5-foot high fence would not be able to block the view from the second story of a home in any event. It is not clear how allowing the applicant to extend their privacy fence into the front or shoreland setback would provide additional screening from the neighbor’s potential home. Again, if screening beyond it is allowed by the fence code is desired, it can be accomplished through the use of vegetation. The situation with regards to the applicant’s request to extend their privacy fence within the 75- foot shoreland setback is similar. Every riparian property in the city is limited to a maximum fence of height of 3.5 feet within their required shoreland setback. Many property owners may wish to shield the lakeside portion of their yard from view from their neighbors or recreational lake users; however, the City has determined that there is public interest in not allowing tall visually obtrusive fences to balkanize this area. There is no unique attribute to the lakeside portion of the applicant’s property that can be cited to support their requested deviation from the City Code. The applicant also has the ability to plant vegetation along their property’s side lot lines within this area to provide for additional privacy. While staff is sympathetic to the stated privacy and security concerns, they are not unique to the applicant’s property, many of them can be addressed within the bounds of the City Code, and several are the result of changes the applicant has made to the property. Were these requested variances to be granted, it would establish precedent that a desire for privacy is sufficient to justify placing 6.5-foot high opaque fences within the front yard and shoreland setback areas, contrary to the goal and intent of the City’s fence ordinances. For these reasons, staff recommends that requested fence variances be denied. Water-Oriented Accessory Structure (WOAS) The applicant is requested a 107.5-square foot variance to allow them to add a 132-square foot shed to the property’s existing 225.5-square foot WOAS. The proposed placement of the shed would put it within one foot of the side lot line and 8 feet from the OHWL. In the graphic (shown at right), the footprint of the pre- existing WOAS is shown in light purple, the proposed revised placement of the deck which was replaced is shown in black, and the proposed shed is shown in light blue. The applicant is requesting variances to permit the construction of the shed due to the challenges of transporting equipment down the steep slope from the home to the lake and the need to secure items that need to be stored by the lake. 75 6609 Horseshoe Curve Request for Variance October 19, 2021 Page 11 The City recognizes the need for lakeshore storage and recreational amenities, as well as the importance of minimize the number and size structures located along the shore. The City’s WOAS ordinance strikes a balance between these two needs by permitting one structure of up to 250 square feet located 10 feet from the side yard and 10 feet from the OHWL. For the purpose of applying the ordinance’s one structure provision, the City treats adjacent structures as a single structure. Every riparian parcel in the city is subject to these standards, unless they benefit from a legal nonconformity or variance, and though many owners would like additional storage space or multiple structures, City staff has always taken the position that property owners must prioritize how they configure their allowed WOAS. The Minnesota Department of Natural Resources responded to the City’s request for comment by noting that the applicant has not demonstrated why they cannot meet setback and size requirements for a WOAS and that a need for storage is not a justification for a variance. Historically, variances have only been supported by City staff when a pre-existing condition is present. In this case, the applicant’s property did have a preexisting WOAS that was 308 square feet in size, 5 feet from the side lot line, and 7 feet from the OHWL. The presence of this nonconforming structure was the rationale for staff formalizing the nonconforming setbacks as part of Variance 2021-07 and permitting the installation of a movable structure over the City’s sanitary sewer line, a situation that would not normally be permitted. While increasing the height of a nonconforming structure, such as by adding a shed on top of an existing patio or deck, would be an expansion of a nonconformity and require a variance, staff believes it would be consistent with past practice to support granting a variance allowing the applicant a 308-square foot structure setback 5 feet from the side lot line. The proposed increase from a 7-foot OHWL setback to an 8-foot OWHL setback would be a reduction to the previous nonconformity. The applicant could meet the 308-square foot requirement by either placing the proposed shed partially over the existing deck or removing 49.5 square feet of the existing decking. Alternatively, a smaller shed could be constructed. Any structure in the area would need to meet the Engineering Department’s requirements for encroachment in the sanitary sewer easement. The applicant has not demonstrated that there are any unique features to their lot which would justify allowing an expansion of their WOAS beyond the size of the pre-existing structure or which would require it to encroach closer than 5 feet to the side lot line. As the applicant has noted, they initially chose to construct the deck instead of a storage structure within the preexisting WOAS’s footprint and have now determined that a shed is necessary. The constraints created by the presence of the deck do not justify the requested variances. For these reasons, staff is recommending that only a variance commensurate with the pre-existing nonconforming structures size and encroachment be approved. Impact on Neighborhood 76 6609 Horseshoe Curve Request for Variance October 19, 2021 Page 12 Pleasant View is an older neighborhood with many atypically shaped lots, nonconformities, and variances; however, to staff’s knowledge no property in the neighborhood has 6.5-foot opaque fences within the front yard or fences over 3.5 feet in height within the 75-foot shoreland setback. Fences have a large visible impact, both for neighbors and individuals utilizing public rights-of-ways and waters. Granting the requested fence variances would negatively impact the neighborhood’s aesthetics, especially if other residents requested and were granted similar variances. Similarly, due to their shoreland location, WOASs are highly visible. Properties with larger or more numerous structure than others are noticed and cited by residents interested in increasing the size of or adding an additional WOAS to their own properties. The aesthetic and environmental benefits that come from limiting the size and number of WOASs can only be realized if the City universally applies these standards. RECOMMENDATION Staff recommends the Planning Commission, acting as the Board of Appeals and Adjustments, deny the requested fence height variance and approve a 58-square foot water-oriented accessory structure (WOAS) size variance, a 5-foot side yard setback variance, and 2-foot shoreland setback variance for the construction of a WOAS, subject to the Conditions of Approval, and adopt the attached Findings of Facts and Decision. 1. The applicant shall consult with City staff and apply for required permits, either building or zoning, for all proposed structures (i.e. shed and deck). 2. No construction can occur until the required permits identified in Condition 1 are issued. 3. The applicant shall file for an Encroachment Agreement with the City for any encroachments within public drainage and utility easements. 4. The shed and its appurtenances shall be constructed so that it is removable from the public utility easement, for review and approval by the City prior to issuance of the required permit. ATTACHMENTS 1. Findings of Fact and Decision (Partial Approval) 2. Variance Document (Partial Approval) 3. Development Review Application 4. Variance Request Justification 5. Staff Response to Variance Request 6. Updated Variance Request Justification 7. Plan Set 8. Variance Documents 9. Water Resources Coordinator Memo 10. Engineering Dept. Memo 11. Dept. of Natural Resources Email 12. Affidavit of Mailing g:\plan\2021 planning cases\21-07b 6609 horseshoe curve 10-19-21 variance request\staff report_6609 horseshoe curve_var_3_final.docx 77 1 CITY OF CHANHASSEN CARVER AND HENNEPIN COUNTIES, MINNESOTA FINDINGS OF FACT AND DECISION (PARTIAL APPROVAL) IN RE: Application of Elise Bruner on behalf of Brian Bruner for a fence height variance and water-oriented accessory structure (WOAS) size and setback variances on a property zoned Single-Family Residential District (RSF) - Planning Case 2021-07B. On October 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 variances 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:The intent of the City Code’s prohibition on front yard fences is to create an attractive and consistent neighborhood aesthetic. The City Code allows for the use of vegetation to provide additional front yard privacy. Similarly, the City Code has a prohibition on fences over 3.5 feet in height within the shoreland setback in order to ensure that the City’s shoreland maintains an open and unobstructed appearance. Granting the requested variances from the City’s fence height standards would not be consistent with the general purposes and intent of the City’s zoning code. It is the intent of the City Code to limit the size and location of structures within the required shoreland setback and to balance recognizing the rights of nonconforming structures to continue to exist with preventing their expansion. It would not be in line with the intent of the zoning code to permit the applicant to construct a WOAS larger than the nonconforming WOAS that was previously present on the site. It would be consistent with the intention of the nonconforming use ordinance to grant a variance allowing the applicant to replace a portion of the nonconforming WOAS with a shed, increasing the height of the nonconformity 78 2 in exchange for increasing the shoreland setback, so long as the size and side yard setback of the nonconforming WOAS are not increased. 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 requested location and configuration of the proposed fence is not typical for the city’s riparian residential properties, and are not necessary for the applicant to have reasonable use of the property. The applicant’s goals of increasing privacy and security can be accomplished within the bounds of the City’s Code of Ordinances without the need for a variance. The applicant’s desire for a WOAS to store equipment is permitted by the City’s Code of Ordinances; however, the requested size and position is not. The applicant has the ability to reconfigure the proposed WOAS to maintain the size and encroachments of the nonconforming WOAS that was previously present on the site. 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:Multiple properties within the city are located below the elevation of the adjacent right-of-way and the front yard of most properties in the city is readily visible from the road. The applicant’s front yard privacy concerns are the result of their decision to realign the driveway, remove vegetation, and construct a rooftop deck. The stated front yard privacy and security concerns can be addressed through mechanisms other than the proposed fence. Similarly, the stated concerns about the prospect of the neighbor building a large house near the required 10-foot setback could be applied to all RSF properties in the city. Finally, the area of the applicant’s property that is within the shoreland setback is fairly typical with no unique features that would justify a fence height variance. The applicant’s requested variances from the City’s WOAS standards are the result of their previous decision to replace the previous WOAS with an at-grade deck rather than a storage shed and their subsequent realization that storage space was necessary. No unique features are present that would prevent the applicant from constructing a WOAS that maintains the size and encroachments of the nonconforming WOAS that was previously present on the site. e. The variance, if granted, will not alter the essential character of the locality. Finding: Pleasant View is an older neighborhood with many atypically shaped lots, nonconformities, and variances; however, to staff’s knowledge no property in the neighborhood has 6.5-foot opaque fences within the front yard or fences over 3.5 feet in 79 3 height within the 75-foot shoreland setback. Fences have a large visible impact, both for neighbors and individuals utilizing public rights-of-way and waters. Granting the requested fence variances would negatively impact the neighborhood’s aesthetics, especially if other residents requested and were granted similar variances. Similarly, due to their shoreland location WOAS are highly visible. Property’s with larger or more numerous structures than others are noticed and cited by residents interested in increasing the size of or adding an additional WOAS to their own properties. The aesthetic and environmental benefits that come from limiting the size and number of WOAS can only be realized if the City universally applies these standards. 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 #2021-07B, dated October 19, 2021, prepared by MacKenzie Young- Walters, is incorporated herein. DECISION The Chanhassen Board of Appeals and Adjustments, denies the requested fence height variance and approves a 58-square foot water-oriented accessory structure size variance, a 5-foot side yard setback variance, and 2-foot shoreland setback variance for the construction of a water oriented accessory structure, subject to the Conditions of Approval, and adopts the attached Findings of Facts and Decision. 1. The applicant shall consult with City staff and apply for required permits, either building or zoning, for all proposed structures (i.e. shed and deck). 2. No construction can occur until the required permits identified in Condition 1 are issued. 3. The applicant shall file for an Encroachment Agreement with the City for any encroachments within public drainage and utility easements. 4.The shed and its appurtenances shall be constructed so that it is removable from the public utility easement, for review and approval by the City prior to issuance of the required permit. ADOPTED by the Chanhassen Planning Commission this 19th day of October, 2021. CITY OF CHANHASSEN BY: Steven Weick, Chairman g:\plan\2021 planning cases\21-07b 6609 horseshoe curve 10-19-21 variance request\findings of fact and decision 6609 horseshoe curve ( partial approval).docx 80 1 CITY OF CHANHASSEN CARVER COUNTY, MINNESOTA VARIANCE 2021-07B 1. Permit. Subject to the terms and conditions set forth herein, the City of Chanhassen hereby grants the following variance: The Chanhassen Board of Appeals and Adjustments denies the requested fence height variance and approves a 58-square foot water-oriented accessory structure size variance, a 5-foot side yard setback variance, and 2-foot shoreland setback variance for the construction of a water-oriented accessory structure. 2. Property. The variance is for a property situated in the City of Chanhassen, Carver County, Minnesota, and legally described as Lot 1, Block 1, Alicia Heights. 3. Conditions.The variance approval is subject to the following conditions: 1. The applicant shall consult with City staff and apply for required permits, either building or zoning, for all proposed structures (i.e. shed and deck). 2. No construction can occur until the required permits identified in Condition 1 are issued. 3. The applicant shall file for an Encroachment Agreement with the City for any encroachments within public drainage and utility easements. 4. The shed and its appurtenances shall be constructed so that it is removable from the public utility easement, for review and approval by the City prior to issuance of the required permit. 4. Lapse. If within one (1) year of the issuance of this variance the allowed construction has not been substantially completed, this variance shall lapse. 81 2 Dated: October 19, 2021 CITY OF CHANHASSEN BY: (SEAL)Elise Ryan, Mayor AND: Laurie Hokkanen, City Manager STATE OF MINNESOTA ) (ss. COUNTY OF CARVER ) The foregoing instrument was acknowledged before me this day of , 2021 by Elise Ryan, Mayor, and Laurie Hokkanen, City Manager, of the City of Chanhassen, a Minnesota municipal corporation, on behalf of the corporation and pursuant to authority granted by its City Council. NOTARY PUBLIC DRAFTED BY: City of Chanhassen 7700 Market Boulevard P.O. Box 147 Chanhassen, MN 55317 (952) 227-1100 g:\plan\2021 planning cases\21-07b 6609 horseshoe curve 10-19-21 variance request\variance document 21-07b.docx 82 September 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 83 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 84 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: 85 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. 86 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 87 September 27, 2021 City of Chanhassen Community Development Department Planning Division 7700 Market Blvd PO Box 147 Chanhassen, MN 55317 RE: '.UPDATED- WRITTEN JUSTIFICATION FOR THIRD VARIANCE REQUEST FOR 6609 HORSESHOE CURVE, CHANHASSEN, MN 55317 COIUPLIES WITH 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 the City's email communication sent to us on September 21, 2021, we are submitting the following updated written justification in support of ourvariance request. First, we confirm that the City Statr has formally acknowledged that its initial determination that a bluffwas present was an error and that the bluff ordinance does not apply to our property. This determination thereby renders our previous two variance applications unnecessary Second, in light of the fact that our property does not trigger the bluff ordinance, we wish to pare down the items that remaan within the scope of the Planning Oivision's review and consideration. VARIANCE REQUEST - UPDATED Sec. 20-58. General nditions for orantino. 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 lhe variances are consistent with the comprehensive plan. (2)Vvhen there are practical difficulties in complying with the zoning ordinance. "Practical difficulties,'' as used in connection with the granting of a variance, means that lhe 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. That the purpose of the variation is not based upon economic considerations alone. The plight of the landowner is due to circumstances unique to the property not created by the landowner. The variance, if granted, will not alter the essential character of the locality. Variances shall be granted for earth-sheltered construction as defined in M.S. S 216C.06, subd. 14, when in harmony u/ith this chapter. (3) (4) (5) (6) 88 Permit us to review the items for the Citv's consideration: 1) SHED - LAKESIDE STORAGE We wish to place an eleven foot by twelve-foot (11' x 12') storage shed at the lakeside adjacent to the new modular deck. This placement requires a variance from the 1o-foot side yard setback and lojoot and shoreland ordinary high-water level (OHV\fL) setback. Per the City's rnitial email response dated September 2'1, 2021, when a shed and patio/deck are contiguous, they are treated as a single WAOS. ln this case, the City confirms that the combined area of lhe two would be approximately 308 sq. ft. Assuming the variance is granted, the City has indicated that a zoning permit would be needed to place a prebuilt shed on the property- The proposed shed placement would not exceed hardcover requirements and we would ensure that this shed is moveable and not a permanent structure, as to allow the City of Chanhassen access to any necessary sanitation line. As discussed, we still have a hardship issue since under the cunent 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. The normal and customary use of this area would togically require some form of slorage to truly enjoy the space and not create practical difficulties in lifting awk\ rard and heavy lake equiprnent up and down the property. ?\OPAQUE PRIVACY FENCE AND SEC ITY GATE AT FRONT YARD/S TREET. We wish to install a six-foot, six-inch (6' 6") high opaque privacy fence and security gate in our front yard within eight (8) feet of the street. We understiand this installation would require both a variance and conditional use permit for a fence taller than six feet, as well as potentially an encroachment agreement for the lence to be placed within the 'lojoot city easement. To reiterate information already contained in the original narrative, we currently have a hillh volume of cars that stop at the top of our driveway to view our unique architecturally designed home, and in some instances, cars accidentally drive down the drivewey. This is a security issue, especially in winter. since once a car goes down the driveway, it becomes a hazard where snow or ice is present. lndividuals not familiar with lhe driveway conditions would not realize that they cannot stop once the decision is made to come down and potentially be injured and or damage our home. VMthout a variance, the City of Chanhassen would only permit a 3-foot-high fence at the driveway side of our property. However, a 3Joot-high fence on a downward slope will do nothing to provide us with the required privacy. As a result, we are asking for a 6'6" opaque fence and gate in the front yard to match the heBht of the privacy fence height allowed for side yards. We further highlight the fact that it is reasonably anticipated thatour neighbors to the east will be building a large multi-bvet homeand near the 10- foot side yard setback, which warrants additional privacy considerations for our family. Lastly, we have a roofiop deck patio that warrants additional privacy from the street, for which a 3- foot-high fence would do nothing to provide any privacy. PRACTICAL DIFFICULTIES A D LIMITED USER ENJOYMENT We understand that varianc€s 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. 89 ln consideration of all equities and hardships in thas case, we believe that our application warrants favorable discretion, since everything we hope to do will improve the use of this property and reduce and prevent injury to people by avoiding the need to cany heavy lake equipment and other furniture up and down the property, provide privacy from the street for quiet enjoyment, and prevent injury or accidents to people or our home itself in the event they inadvertently drive down the driveway during cold weather months. CONCLUSION Our aim has remained to improve the natural enioyment 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,g,*{. fr^ Elise Bru and Brian Bruner 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 Memorandum To: MacKenzie Young-Walters, Associate Planner From: Matt Unmacht, Water Resources Coordinator CC: Charles Howley, Public Works Director/City Engineer Ryan Pinkalla, Water Resources Technician Erik Henricksen, Project Engineer Date: September 28, 2021 Re: 6609 Horseshoe Curve Variance - City Planning Case No. 2021-07B The Water Resources Department has reviewed the new variance request located at 6609 Horseshoe Curve. These comments are divided into two categories: general comments and recommendations. General comments are informational points to guide the applicant in the proper planning of any water resources issues or stormwater infrastructure fo r this project, to inform the applicant of possible extraordinary issues and/or to provide the basis for findings. Recommendations are the determination of the variance request by the Water Resources group based on the facts of the application. General Comments/Findings 1. The applicant is requesting two variances. One variance for the Water Oriented Accessory Structure (WOAS), which includes a side-yard setback variance, an Ordinary High Water-Level (OHWL) setback variance, and a WOAS size variance. The other variance is for a privacy fence. 2. The property is located on Lotus Lake. According to the Riley-Purgatory Bluff Creek Watershed District, water quality on Lotus Lake has improved in some parameters, such as water clarity and phosphorus, but degraded in others, such as chlorophyll-a, in recent years. The project is proposing construction very close to the lake. 3. In January 2021, a variance was approved to replace an existing, non-conforming WOAS on the property with a modular deck. This new structure was considered non- impervious surface whereas the existing, non-conforming WOAS was impervious surface. In addition, the applicant was reducing the overall size of the WOAS. Overall, 135 the applicant proposed to reduce the intensity of the existing non-conformity. As such, the Water Resources department recommended approval of the variance request for the non-conforming WOAS. It is the Water Resources Department’s understanding that construction on the modular deck has begun. 4. The applicant is requesting to construct an 11’ x 12’ storage shed at the lakeshore, adjacent to new modular deck. This shed is proposed to be contiguous with the deck, meaning that they are to be treated as one structure. The maximum allowable WOAS allowed by the City Code is 250 square feet. The new WOAS, plus the existing deck, would result in a WOAS of 357.5 square feet. 5. The applicant is requesting that the new WOAS extend beyond the 10-foot OHWL setback. This setback is designed to limit the amount of development or structures that are placed near a lakeshore. This protects the lake from sediment and erosion issues, while also protecting said structures from possible flooding issues. The applicant’s existing WOAS encroaches into this OHWL setback, however, a variance for this deck was approved as it actually decreased the encroachment into the setback from the previous WOAS (pre-2021). The applicant’s new request actually decreases the intensity of the encroachment into this setback from the previously approved variance by two feet. 6. As for other water resources issues: outside of Lotus Lake, there are no wetlands on this property. In addition, this project does not involves any City owned stormwater infrastructure. As such, there are no concerns or conditions to place on the project based on these factors. 7. The Department of Natural Resources was contacted as part of the standard agency coordination for this variance request. The DNR does not believe that storage is reason enough to grant this variance. 8. It is the opinion of the Water Resources Department that this variance request should be denied. There appears to be sufficient options for the applicant to alter the plans that would not require a variance. For example, the applicant was previously limited laterally on where the WOAS can be placed because of a buffer setback. That buffer setback no longer applies and as such the WOAS can be moved into this area. This could potentially negate the need for both the side yard and OHWL encroachment. In addition, there doesn’t appear to be sufficient justification for the size of the shed beyond storage. The shed could be smaller in order to be under the maximum allowable size. Recommendations 1. The Water Resources Department recommends denial of the variance request to construct a WOAS that exceeds the maximum size allowable by City Code. City staff 136 recommends approving variance only to the extent of the previous non-conforming structure. For example, the previous WOAS was 308 square feet. City staff does not recommend going beyond this previous non-conforming WOAS size. It appears that there are sufficient solutions available to the applicant which would negate the need for a variance. In addition, the applicant has not provided enough justification for this variance beyond storage. 2. The Water Resources Department recommends approval of the OHWL setback. The applicant’s updated variance request decreases the intensity of the variance and thus approval is recommended. 3. The Water Resources Department has no comment on the variance request for a privacy fence. 137 Memorandum To: MacKenzie Young-Walters, Associate Planner From: Erik Henricksen, Project Engineer CC: Charles Howley, Public Works Director/City Engineer George Bender, Assistant City Engineer Brett Martinson, Water and Sewer Maintenance Foreman Matt Unmacht, Water Resources Coordinator Ryan Pinkalla, Water Resources Technician Steve Lenz, Engineering Technician Date: September 29, 2021 Re: Fence and Shed variance at 6609 Horseshoe Curve – Planning Case #2021-07B The Engineering Department has reviewed the Variance submittal for 6609 Horseshoe Curve. These comments are divided into two categories: general comments and proposed conditions. General comments are informational points to guide the applicant in the proper planning of public works infrastructure for this project, to inform the applicant of possible extraordinary issues and/or to provide the basis for findings. Proposed conditions are requirements that Engineering recommends be formally imposed on the developer in the final order. Note that references to the “City Standards” herein refer to the City of Chanhassen Standard Specifications and Detail Plates. General Comments/Findings 1. Any and all grading, utility and transportation plans submitted with this application have been reviewed only for the purpose of determining the feasibility of the plans and providing utility and transportation facilities for the project in accordance with City Standards. A recommendation of variance approval does not constitute final approval of details, including but not limited to alignments, materials and points of access, connection or discharge, that are depicted or suggested in the application. The 138 applicant is required to submit detailed construction drawings and/or plat drawings for the project, as applicable. The City of Chanhassen Engineering and Public Works Department will review plans, in detail, when they are submitted and approve, reject or require modifications to the plans or drawings based upon conformance with City Standards, the Chanhassen Code of Ordinances and the professional engineering judgment of the City Engineer. 2. It is the opinion of the Engineering Department that the proposed project can be developed in accordance with the requirements of the Chanhassen Code of Ordinances (as it pertains to Engineering and Public Works requirements) and City Standards, provided it fully addresses the comments and conditions contained herein, an d can be approved. 3. The applicant previously proposed the reconfiguration and realignment of an existing Water Oriented Structure (WOAS). The existing WOAS consisted of stone pavers and wood decking which was removed and replaced with a modular wood decking WOAS. The WOAS lied within a public drainage and utility easement (DUE) that was recorded with the Alicia Heights plat in 1999. Additionally, the city owns and maintains a public sanitary sewer main constructed in 1975 that is located within the DUE and located directly under the existing and proposed WOAS. As such, the applicant was required to enter into an encroachment agreement for the WOAS, and the WOAS was constructed so that it is removable to allow for access to and for the proper maintenance of the public sanitary sewer main. The applicant is now proposing the addition of a shed to be attached to the modular wood deck. The same conditions associated with the original WOAS are required of the shed, see proposed conditions 1 and 2. 4. As no plans were provided to the city for the proposed shed for review, the Engineering and Public Works department will review plans through the permitting process once received. Staff has concerns if helical pier footings are used for the construction of the shed due to the proximity of the public sanitary sewer main. Staff was notified that during the construction of the stairs down the hillside that the helical piers damaged the properties private lateral which required repairs. If piers are to be used, staff will require they remain 3 feet offset from the public sanitary sewer main and that the main be televised to ensure no damage during construction occurred. 5. The applicant is proposing a variance for the construction of a 6.5 foot high opaque privacy fence located in the front yard. If the variance is approved the applicant will be required to enter into an Encroachment Agreement if the fence is ere cted within a public drainage and utility easement. See proposed condition 1. Proposed Conditions 139 1. The applicant shall file for an encroachment agreement with the city for any encroachments within public drainage and utility easements. 2. The shed and it’s appurtenances shall be constructed so that it is removable from the public utility easement, for review and approval by the city prior to issuance of the required permit. 140 CITY OF CHANHASSEN AFFIDAVIT OF MAILING NOTICE STATE OF MINNESOTA) ss. COUNTY OF CARVER ) I, Kim T. Meuwissen, being first duly sworn, on oath deposes that she is and was on October 7,2021, the duly qualified and acting City Clerk of the City of Chanhassen, Minnesota; that on said date she caused to be mailed a copy of the attached notice of Public Hearing to consider a request for setback and maximum size variances for a water-oriented accessory structure (WOAS) and a height v ariance to allow a six-foot, six-inch high opaque fence within the required front y and setback. Zoned Single-Family Residential (RSF). Property Owner: Elise and Brian Bruner. Planning Case No. 2021-07B to the persons named on attached Exhibit"A", by enclosing a copy of said notice in an envelope addressed to such owner, and depositing the envelopes addressed to all such owners in the United States mail with postage fully prepaid thereon; that the names and addresses of such owners were those appearing as such by the records of the County Treasurer, Carver County, Minnesota, and by other appropriate records. I Kim . M 'ssen, City Clerk Subscribed and sworn to, be, f fo re me JEAN M STECKLING this day of T 021. Notary Pubiio-Mkxreaota My oaiwISMon r pYw Jen 31,2024 Thni Notary Publi 141 o TO 114. i 7 y 11111111,111111"Subject Parcel / Disclaimer This map is neither a legally recorded map nor a survey and is not intended to be used as one.This map is a compilation of records,information and data located in various city, county,state and federal offices and other sources regarding the area shown,and is to TAX NAME» be used for reference purposes only. The City does not warrant that the Geographic Information System(GIS)Data used to prepare this map are error free,and the City does TAX_ADD_L1» not represent that the GIS Data can be used for navigational, tracking or any other TAX ADD L2» purpose requiring exacting measurement of distance or direction or precision in the depiction of geographic features. The preceding disclaimer is provided pursuant to Minnesota Statutes§466.03,Subd. 21 (2000),and the user of this map acknowledges that the City shall not be liable for any damages,and expressly waives all claims,and agrees to defend,indemnify,and hold harmless the City from any and all claims brought by User,its employees or agents,or third parties which arise out of the user's access or use of data provided. GVN Subject i Parcel Disclaimer This map is neither a legally recorded map nor a survey and is not intended to be used as one.This map is a compilation of records,information and data located in various city, county,state and federal offices and other sources regarding the area shown,and is to be used for reference purposes only. The City does not warrant that the Geographic Information System(GIS)Data used to prepare this map are error free,and the City does not represent that the GIS Data can be used for navigational, tracking or any other purpose requiring exacting measurement of distance or direction or precision in the depiction of geographic features. 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