CC Staff Report 9-12-05
:;l
-
MEMORANDUM
CITY OF
CHANHASSEN
TO:
Todd Gerhardt, City Manager
7700 Market Boulevard
PO Box 147
Chanhassen, MN 55317
FROM:
Josh Metzer, Planner I
DATE:
September 12, 2005
o~.
Administration
Phone 952.2271100
Fax 952.2271110
SUBJ:
Troy & Virginia Kakacek - Planning Case #05-18
Building Inspections
Phone 952.227.1180
Fax: 952.2271190
EXECUTIVE SUMMARY
Finance
Phone: 952.227.1140
Fax 952.227.1110
This item was appealed to City Council by the applicant. This is a request for a
4.23% hard surface coverage variance from the maximum 25% hard surface
coverage restriction for the addition of a patio and retaining wall on property
located in the Single Family Residential District at 380 West 86th Street. These
improvements have already been built.
Engineering
Phone 952.227.1160
Fax 952.2271170
ACTION REQUIRED
Park & Recreation
Phone 952.227.1120
Fax 952.227.1110
City Council approval requires a majority of City Council present.
Recreation Center
2310 Coulter Boulevard
Phone: 952.227.1400
Fax: 952.227.1404
PLANNING COMMISSION SUMMARY
Planning &
Natural Resources
Phone 952.227.1130
Fax 952.2271110
The Planning Commission held a public hearing on July 19,2005, to review the
proposed development. The Planning Commission voted 6 to 0 to deny the
proposed project. That decision was appealed by the applicant, and thus, has come
before the City Council.
RECOMMENDATION
Public Works
1591 Park Road
Phone: 952.2271300
Fax 952.2271310
Staff recommends adoption of the motion as specified on page 7 of the staff
report dated September 12, 2005.
Senior Center
Phone 952.2271125
Fax 952.2271110
ATTACHMENTS
Web Site
www.ci.chanhassen.mn.us
Planning Commission Staff Report Dated July 19,2005.
g:\plan\2005 planning cases\05-18 kakacek variance\executive summary.doc
The City 01 Chanhassen . A growing community with clean lakes, quality schools, a charming downtown, thriving businesses, winding trails, and beautiful parks. A great place to live, work, and play.
PC DATE:
July 19, 2005
CC DATE:September 122005
,
CITY OF CHANHASSEN
REVIEW DEADLINE:
September 13, 2005
CASE #:
05-18
BY:
JM, JS, DR
STAFF REPORT
PROPOSAL:
Request for 4.23% hard surface coverage variance from the maximum 25% hard surface
coverage restriction for the addition of a patio and retaining wall on property located in the
th
Single Family Residential District at 380 West 86 Street. These improvements have
already been built.
nd
LOCATION:
Lot 4, Block 1, Rice Lake Manor 2 Addition
th
380 West 86 Street
Chanhassen, MN 55317
APPLICANT:
Troy & Virginia Kakacek
th
380 West 86 Street
Chanhassen, MN 55317
PRESENT ZONING:
Single Family Residential (RSF)
2020 LAND USE PLAN:
Residential – Low Density (Net Density Range 1.2 – 4u/Acre)
ACREAGE:
0.35 acre
DENSITY:
N/A
SITE DATA
SUMMARY OF REQUEST:
The applicant is requesting a 4.23% hard surface coverage variance from
the maximum 25% hard surface coverage restriction for the addition of a patio and retaining wall. These
improvements have already been built.Staff is recommending denial of this request.
Notice of this public hearing has been mailed to all property owners within 500 feet.
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.
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Planning Case #05-18
Kakacek Variance
September 12
July 19, 2005
Page 2
PLANNING COMMISSION UPDATE
The Chanhassen Planning Commission held a public hearing on July 19, 2005, to review the
proposed variance. The Planning Commission voted 6 to 0 for denial. That decision was appealed
by the applicant, and thus, has come before the City Council.The summary and verbatim minutes
are Attachment 8 of this packet.
SUMMARY OF PROPOSAL
th
The subject property is located southeast of Great Plains Boulevard on West 86 Street and is zoned
Single Family Residential (RSF). The applicant is requesting a 4.23% (which represents 642.24 square
feet of site coverage) hard surface coverage variance from the maximum 25% hard surface coverage
restriction for the addition of a patio and retaining wall. These structures have already been built bringing
the existing hard surface coverage to 29.23%.
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APPLICABLE REGUATIONS
Sec. 20-91. Zoning compliance review.
(a) Zoning compliance review shall be required for the construction of structures which do not require
building permits to determine compliance with zoning requirements such as setback, site coverage,
structure height, etc.
Planning Case #05-18
Kakacek Variance
September 12
July 19, 2005
Page 3
(b) Any zoning compliance review application that fails to meet zoning ordinance requirements shall
be denied by the community development director.
Sec. 20-615. Lot requirements and setbacks.
25 percent
(5) The maximum lot coverage for all structures and paved surfaces is .
Impervious surface
means any material that substantially reduces or prevents the infiltration of storm
gravel
water. It shall include, but not be limited to, driveways, parking area, buildings and structures.
(20)
BACKGROUND
nd
The subject property was platted as part of Rice Lake Manor 2 Addition which was recorded on October
22, 2003. The house was built in 2004. The patio, retaining wall and sidewalks were not shown on the
plans for the building permit application. The subject property is located in the Single Family Residential
(RSF) district and has an area of 15,180 square feet. In the RSF district 25% is the maximum permitted
impervious surface coverage for a lot. The applicant currently has a hard cover of 29.23%.
The hard cover issue came to the attention of the City in mid-November when the as-built survey from
Otto Associates was submitted. It appeared the lot could be over on the maximum hard cover
percentage. The City requested that hard cover calculation details be shown on the as-built survey. The
City received the revised survey on December 2, 2004 showing the existing hard cover was 31.8%.
Shortly after, staff informed the applicant they must bring the lot into compliance with hard cover
restrictions or apply for a variance.
This application was originally scheduled to appear before the Planning Commission on June 7, 2005.
The original proposal included the concrete and gravel sidewalks as part of the variance request. This
put the hard cover request at 30.86%. The applicant requested the application be tabled in order to
revise the variance proposal. The Kakacek’s have since removed the concrete and gravel sidewalks and
have replaced them with landscaping rock and mulch. In doing so the applicant has reduced the existing
hardcover by 248 square feet, or 1.63%. Therefore, a correction to the survey hard cover calculations
needs to be made. The as-built survey includes the sidewalks as part of the hard cover calculation. The
City does not consider landscape rock and mulch, with a fabric liner, to be impervious surface.
Therefore, the sidewalk portion of the hard cover calculations shall be ignored for the purposes of this
variance request.
Planning Case #05-18
Kakacek Variance
September 12
July 19, 2005
Page 4
Before - Gravel Walkway After – Mulch Walkway
Before - Concrete Sidewalk After – Rock Walkway
Revised as-built survey calculation:
House = 2,537.24 sq. ft.
Patio = 519.00 sq. ft.
Driveway = 1,369.00 sq. ft.
Retaining Wall= 12.00 sq. ft.
TOTAL4,437.24 sq. ft. 29.23%
=
In discussing the matter, the applicant informed staff that miscommunication had contributed to the
violation of impervious surface restrictions. According to the applicant, the plans which the City
approved were different from those the homeowner had in their possession. The applicant did meet with
staff, prior to construction of the home, to discuss landscaping options for the property. Staff informed
the applicant that any part of the property could be landscaped except in easements. In a meeting
between staff and the applicant, which took place after the issue of impervious surface came to the
attention of the City, it was revealed that the applicants’ interpretation of landscaping included patio
areas. Had staff been aware of this interpretation, the applicant would have been informed that hard
cover restrictions include concrete and paver patios.
Kakacek Variance
Planning Case #05-18
July 19, 2005
Page 5
Adding to the discrepancies between the proposed building survey and the as-built survey are the
dimensions of the driveway. The driveway was built larger and with a different shape than that which
was proposed. The as-built survey shows that the home and driveway alone are at 25.8% (111.24 square
feet over the maximum permitted hard cover).
ANALYSIS
The site is zoned Residential Single Family (RSF). The applicant has completed construction of the
sidewalks and patio in question. Chanhassen City Code does not require building permits for sidewalks
and patios. However, such structures do require a zoning compliance review. The City uses zoning
compliance reviews to ensure that structures, which do not require a building permit, still comply with
zoning ordinances. Criteria of a zoning compliance review include setbacks, hard surface coverage and
structure height.
Patio Retaining Wall/Rock Sidewalk
There are alternatives the applicant could pursue to bring the property into compliance with City Code.
Regarding the patio, the applicant could remove the patio pavers and replace them with wooden decking
with a pervious surface below. This would allow the applicant to continue to enjoy their backyard while
complying with ordinance requirements. In addition, in order to reach 25%, the size of the driveway
would have to be reduced by at least 111.24 square feet.
While the applicant has expended money for the improvements, such expenditure does not justify the
granting of a variance. Approval of a variance is contingent upon proof that the literal enforcement of
the Chanhassen City Code would cause an undue hardship. Not having a reasonable use of the property
would constitute an undue hardship. Reasonable use is defined as the use made by a majority of
comparable property within 500 feet. Reasonable use of this property, a single-family home with a two-
car garage, already exists. Any use of the property beyond that discussed above is strictly ancillary to
the principal use. There are alternatives the property owner could pursue to receive the same utility, i.e.,
use of deck instead of patio. Based on these facts, staff must recommend denial of this request.
Kakacek Variance
Planning Case #05-18
July 19, 2005
Page 6
LANDSCAPING
nd
The landscaping requirements for Rice Lake Manor 2 Addition included a total of 12 trees to be
planted as part of subdivision approval. Each lot was required to have two trees of the aforementioned
th
trees planted in the front yard. Lot 4, Block 1, 380 West 86 Street is required to have a total of four
trees planted as part of the subdivision conditions of approval. A recent inspection of the property found
only one tree, a crabapple, planted in the front yard. Two existing trees remain in the rear yard. This lot
requires three more trees to be planted in order to meet subdivision requirements.
FINDINGS
The Board of Adjustments and Appeals shall not recommend and the City Council shall not grant a
variance unless they find the following facts:
a. That the literal enforcement of this chapter would cause an undue hardship. Undue hardship means
that the property cannot be put to reasonable use because of its size, physical surroundings, shape or
topography. Reasonable use includes a use made by a majority of comparable property within 500
feet of it. The intent of this provision is not to allow a proliferation of variances, but to recognize
that there are pre-existing standards in this neighborhood. Variances that blend with these pre-
existing standards without departing downward from them meet these criteria.
Finding:
The literal enforcement of this chapter does not cause an undue hardship. By having a
single-family home and a two-car garage the property owner has reasonable use of the property.
There are also reasonable alternatives to the patio.
b. The conditions upon which a petition for a variance is based are not applicable, generally, to other
property within the same zoning classification.
Finding:
The conditions upon which this variance is based are applicable to all properties that lie
within the Single Family Residential District.
c. The purpose of the variation is not based upon a desire to increase the value or income potential of
the parcel of land.
Finding:
The improvements increase the value of the property.
d. The alleged difficulty or hardship is not a self-created hardship.
Finding:
Construction of the patio and retaining wall were completed before a zoning compliance
review was performed; therefore, this is a self-created hardship.
e. The granting of the variance will not be detrimental to the public welfare or injurious to other land
or improvements in the neighborhood in which the parcel is located.
Finding:
The granting of a variance may be detrimental to the public welfare or injurious to other
land or improvements in the neighborhood in which the parcel is located due to the increase in
runoff from this property.
Kakacek Variance
Planning Case #05-18
July 19, 2005
Page 7
f. The proposed variation will not impair an adequate supply of light and air to adjacent property or
substantially increase the congestion of the public streets or increase the danger of fire or endanger
the public safety or substantially diminish or impair property values within the neighborhood.
Finding:
The proposed variation will not impair an adequate supply of light and air to adjacent
property or substantially increase the congestion of the public streets.
RECOMMENDATION
Planning Commission City Council
Staffrecommends that the Planning Commissionadopt the
following motion:
City Council
“The Planning Commission denies Variance #05-18 for a 4.23% hard surface coverage
variance from the maximum 25% hard surface coverage restriction for the addition of a patio and retaining
wall on a lot zoned Single Family Residential (RSF) based upon the findings in the staff report and the
following:
1.The applicant has not demonstrated a hardship.
2.The property owner has reasonable use of the property.
City Council
The Planning Commission orders the property owner to:
1.Remove sufficient impervious surface to comply with ordinance requirements.
2.Plant three trees to meet subdivision requirements.”
City Council
Should the Planning Commission choose to approve the variance, staff recommends that
City Council
the Planning Commission adopt the following motion:
City Council
“The Planning Commission approves Variance #05-18 for a 4.23% hard surface coverage
variance from the maximum 25% hard surface coverage restriction for the addition of a patio and
retaining wall on a lot zoned Single Family Residential (RSF) with the following conditions:
1.The applicant must plant three trees to meet subdivision requirements.”
ATTACHMENTS
1.Findings of Fact.
2.Development Review Application.
3.Letter from Troy & Virginia Kakacek stamped “Received May 6, 2005”.
4.Letter from Kurt & Lynne Miller dated May 4, 2005.
5.Public Hearing Notice and Affidavit of Mailing List.
6.Building Permit Survey.
7.As-Built Survey.
8.July 19, 2005, Planning Commission Minutes.
g:\plan\2005 planning cases\05-18 kakacek variance\staff report.doc
CITY OF CHANHASSEN
CARVER AND HENNEPIN COUNTIES, MINNESOTA
FINDINGS OF FACT
AND ACTION
IN RE: Application of Troy & Virginia Kakacek for 4.23% hard surface coverage variance
from the maximum 25% hard surface coverage restriction for the addition of a patio and
retaining wa1l- Planning Case No. 05-18.
On July 19,2005, the Chanhassen Planning Commission met at its regularly scheduled
meeting to consider the Application of Troy & Virginia Kakacek for a 4.23% hard surface
coverage variance from the maximum 25% hard surface coverage restriction for the addition of a
patio and retainmg wa11 on property located in the Single Family Residentia1 District at 380 West
86th Street. The Planning Commission conducted a public hearing on the proposed variance that
was preceded by published and mailed notice. The Planning Commission heard testimony from
a11 interested persons wishing to speak and now makes the following:
FINDINGS OF FACT
1. The property is currently zoned Single Family Residentia1 (RSF).
2. The property is guided by the Land Use Plan for Residential - Low Density (Net
Density Range 1.2 - 4u1 Acre).
3. The lega1 description of the property is: Lot 4, Block 1, Rice Lake Manor 2nd
Addition
4. The Board of Adjustments and Appeals sha11 not recommend and the City Council sha11
not grant a variance unless they find the following facts:
a. Literal enforcement of this chapter would not cause undue hardship.
b. The conditions upon which this variance is based are applicable, genera1ly, to other
properties in the Single Family Residentia1 district.
c. The improvements increase the va1ue of the property.
d. The a1leged difficulty or hardship is a self-created hardship.
e. The granting of the variance may be detrimenta1 to the public welfare or injurious
to other land or improvements in the neighborhood in which the parcel of land is
located.
f. The proposed variation will not impair an adequate supply of light and air to
adjacent property or substantially increase the congestion of the public streets or
increase the danger of fire or endanger the public safety or substantially diminish or
impair property values within the neighborhood.
5. The planning report #05-18 Variance dated July 19, 2005, prepared by Josh Metzer, et
aI, is incorporated herein.
ACTION
The Chanhassen Planning Commission denies the variance from the impervious surface
restriction for the addition of a patio and retaining wall.
ADOPTED by the Chanhassen Planning Commission on this 19th day of July, 2005.
CHANHASSEN PLANNING COMMISSION
BY:
Planning Commission Chairperson
g:\pIan\2005 planning cases\05-18 kakacek variance\findings offaCldoc
Planning Case No.
os- f 8
CITY OF CHANHASSEN
7700 Market Boulevard - P.O. Box 147
Chanhassen, MN 55317 - (952) 227-1100
DEVELOPMENT REVIEW APPLICATION
REceIVED
MAY 06 2005
CITY OF CHANHASSEN
PLEASE PRINT.
Applicant NamE3and'Address: Owner Name and Address:
UOy Mvt>' Vi i!'iriNII~Kfli(IJ-L c~ 'S <l..rn ~. tt-s (A.f>~~
310 W. ~l/~S-I-.
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Contact: V IRe IN I A ,\ G-~NG'cR. I' Contact:
Phone:j52-q~6-20JS- Fax: QS2-QQ3-;;.Ll-=1S Phone: Fax:
Email: _lL.-o..lLCk-e v @ -{X^.r \c-n '\ to lIet. e..o h-, Email:
Comprehensive Plan Amendment
Temporary Sales Permit
Conditional Use Permit
Vacation of Right~of-Way/Easements
Interim Use Permit ,
. (;>( Variance
Non-conforming Use Permit
Wetland Alteration Permit
Planned Unit Development*
Zoning Appeal
Rezoning
Zoning Ordinance Amendment
. Sign Permits
Sign Plan Review
Notification Sign
Site Plan Review*
X. Escrow for Filing Fees/Attomey Cost**
- $50 CUP/SPRN ACNAR/W AP/Metes & Bounds
- $400 Minor SUB
TOTAL FEE$'p-'s'?J ~<30
Subdivision*
An additional fee of $3.00 per address within the public hearing notification area will be invoiced to the applicant prior to
the public hearing.
* Twenty-six (26) full-size folded cpples of the plans must be submitted, Including an 8W' X 11" reduced copy tor
each plan sheet along with a dlaftal CODY In nFF-Group 4 (*.tlf) format.
** Escrow will be required for other applications through the development contract.
Building material samples must be submitted with site plan reviews.
. NOTE: When multiple applications are processed, the appropriate fee shall be charged for each application.
SCANNED
PROJECT NAME:".:1=> A-T\'C) t\~~b \ ,I ()f\J
LOCATlON:::S?O - t.J.J. <i?~'l-"- S+.
LEGAL DESCRIPTION:
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TOTAL ACREAGE: I 3'-/ O-.tr t.5
WETLANDS PRESENT: YES rL. NO
PRESENT ZONING: -Res l1:>el0TI A l J - S t N G-t. F flt-YY\\ L If
REQUESTED ZONING: I ,
PRESENT LAND USE DESIGNATION: ~e,> It:>e'f'l-rUlL r S (l0&LG" FArY\{ L Y
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REQUESTED LAND USE DESIGNATION:
REASON FOR REQUEST: To r<.e G. \..U;:- SI A- V Ai'?-\""-l\J e t 'To f\-Cco lit)
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This application must be completed in full and be typewritten or clearly printed and must be accompanied by all information
and plans required by applicable City Ordinance provisions. Before filing this application, you should confer with the
Planning Department to determine the specific ordinance and prOcedural requirements applicable to your application.
A determination of completeness of the application shall be made within 15 business days of application submittal. A written
notice of application deficiencies shall be mailed to the applicant within 15 business days of application.
This is to certify that I am making application for the described action by the City and that I am responsible for complying with
all City requirements with regard to this request. This application should be processed in my name and I am the party whom
the City should contact regarding any matter pertaining to this application. I have attached a copy of proof of ownership
(either copy of Owner's Duplicate Certificate of Title, Abstract of TItle or purchase agreement), or I am the authorized person
to make this application and the fee owner has also signed this application.
I will keep myself informed of the deadlines for submission of material and the progress of this application. I further
understand that additional fees may be charged for consulting fees, feasibility studies, etc. with an estimate prior to any
authorization to proceed with the study. The documents and information I have submitted are true and correct to the best of
my knowledge;
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Signature 0 ee Owner
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,G:\pIan\forms\Development Review Application.DOC
Rev.310fi
To the City ofChanhassen- Planning Committee:
Troy and Virginia Kakacek variance request for 380 W. 86th 8t
Points on variance application:
7. Variance request - To allow existing patio to remain as an improvement to the
exterior of the home.
8. a. All homes in the immediate vicinity of our home have preexisting decks
- and patios. The back yard (patio area) would not be usable without
covering. The layout of the home requires some walkout consistent with
the homes around us.
b. The homes around us have had preexisting structures but were developed
on much larger lots.
c. The variation is for personal use and to make the area more presentable
and improved.
d. The development was as a result 9f several different miscommunications
despite multiple attempts to pre-empt any future problems prior to
placement. An original building plan was submitted with the patio on it
and tpe final building approval was changed without our knowledge.
After the house was built we waited to add this later for financial reasons
instead of doing it with the final home construction. We also sought the
advice of the city staff two times prior to starting any landscaping or
hardscaping projects. When we were notified of the problem after our
final survey we were shown what Chanhassen had officially approved and
realized it was different than the plans we had as our final building plan.
e. The variance will improve the neighborhOO<l, it is already in place, and
multiple neighbors have stopped and commented on how they think: the
things we have done greatly improved the property.
f. The improvements do not impose any danger, impair property value (an
increase was actually made), and will not infringe upon any neighbors
and! or ordinance. Our neighbors to: the north Kurt and Lynn Miller are
substantially below their hardscaping requirements and have included a
letter of support for our variance (see attached).
SCANNED
Kurt D. Miller
8590 Tigua Lane
Chanhassen" MN 55317
May 4, 2005
To: City ofChanhassen
From~ Kurt & Lynne Miller
8590 Tigua Lane
Chanhassen, MN
Subject: 380 West 86th Street
Chanhassen, MN.
Our backyard joins the backyard of Mr. & Mrs. Kakacek. The patio they
had installed last year compliments their backyard and adds to the
fimctionality of their home.
We do not object to this patio in anyway and believe it is a nice addition to
their home and yard. Our lot is connected along their entire rear property
line is one acre in size and affords an abundance of green space. It would
seem sensible to allow the Kakacek's to retain their patio.
/ti<l!
'CANNeD
CITY OF CHANHASSEN
AFFIDAVIT OF MAILING NOTICE
STATE OF MINNESOTA)
) ss.
COUNTYOFCARVER )
I, Karen J. Engelhardt, being first duly sworn, on oath deposes that she is and was on
Thursday, July 7, 2005, the duly qualified and acting Deputy 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 for Kakacek Variance - Planning Case No. 05-18 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.
Subscribed and sworn to before me
thiS~daYOf:Ju.\~ ,2005.
~~ \'N~'-I.kA-^'-=-
I
KIM 1: MEUWlSSEN
Notary Public-Minnesota
My CommIseIon ExpIree Jan 31, 2010
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sclalmer
s map is neither a legally recorded map nor a survey and is not intended to be used as one.
s map is a COIlllilation of records, information and data located in various clty, county, state and
era! oIIices and other sources regarding the 8I8a shown, and is to be used for reference
poses only. The City does nof warrant that the Geograpljc Information System (GIS) Data used
>repare this map are error free, and the City does no! represent that the GIS Data can be used
navigational, tracking or any other purpose reqUiring exacting measurement of distance or
lCtIon or preclsion in the depiction 01 geographic features. n errors or discrepancles 818 found
ase contact 952-227-1107. The precedng clsclalrner is provided pursuant to Minnesota
,Mes 9466.03, Subd. 21 (2000), and the user 01 this map acknowledges that the City shall not
liable for any damages, and elCpf9SSly waives all claims, and agrees to delend, indermity, and
d harmless the City from any and all claims brought by User, its ~oyees or agents, or third
ties which arise out 01 the use(s access or use of data provided.
ccNAME1 >>
ccNAME2>>
ccADD1 >>
ccADD2>>
ccCITY>> ccSTATE>> (cZIP>>
L,._... C.R. 11
1$Clalmer
lis map is neither a legally recorded map nor a survey and is no! intended to be used as one.
lis map is a COfI1lllation 01 records, information and data Iocatad in various city, county, Slate and
deraI oIIices and other sources regarding the 8I8a shown, and is to be used lor reference
Irposes only. The City does not warrant thet the Geograpljc InIormation System (GIS) Data used
prep8I8 this map 818 error free, and the City does not represent that the GIS Data can be used
r navigational, tracking or any other purpose requiring exacting measurement ofllstance or
rection or precision in the depiction of geographic features. n errors or discrepancles are found
ease contact 952-227-1107. The preceding clsclairner is provided pursuant to Minnesota
:aMes 9466.03, SuIld. 21 (2000), and the user of this map acknowledges that the City shaD not
~ Hable lor any damages, and e>cpressIy waives all claims, and agrees to defend. indermiIy, and
lld harmless the City from any and aD claims brought by User, its eqJIoyees or agents. or third
u1ies which arise out of the uws access or use 01 data provided.
<<Next Record>> ccNAME1>>
(cNAME2>>
<<ADD1 >>
<<ADD2>)
<<CITY>> <<STATE>> <<ZIP>>
Public Hearing Notification Area Map (500 feet)
Kakacek Variance
Planning Case No. 05-18
380 West 86th Street
City of Chanhassen
Lake Susan
Lake Riley
?ATRICIA A ADAMS
~29 RICE CT
::;HANHASSEN MN 55317
GEORGE J CARLYLE &
JANELLE VEILLEUX CARLYLE
6560 MISSION HILLS LN
CHANHASSEN MN 55317
JOHN D & MARY JO EICHLER
TRUSTEE OF TRUST
25628 CORDOVA LN
RIO VERDE AZ 85263
DANIEL T & KELLY A FASCHING
8550 MISSION HILLS LN
CHANHASSEN MN 55317
SUNITA GANGOPADHYAY &
SHUBHAGATGANGOPADHYAY
8571 MISSION HILLS LN
CHANHASSEN MN 55317
JAY K HALVORSON &
ELEN M HALVORSON
422 RICE CT
CHANHASSEN MN 55317
SUSAN M HEINEMANN
421 RICE CT
CHANHASSEN MN 55317
KATHLEEN M JOHANNES
430 MISSION HILLS WAY E
CHANHASSEN MN .55317
SARA LUCY KALEY
482 MISSION HILLS WAY E
CHANHASSEN MN 55317
KLlNGELHUTZ DEVELOPMENT CO
350 HWY 212 E
PO BOX 89
CHASKA MN 55318
SARAH K BERG
424 MONK CT
CHANHASSEN MN 55317
JAMES A & MARILYN L CRAWFORD
8581 MISSION HILLS LN
. CHANHASSEN MN 55317
MICHELLE J ERICKSON-CODY
442 MISSION HILLS WAY E
CHANHASSEN MN 55317
BEVERLY A FIEDLER
8521 TIGUA LN
CHANHASSEN MN 55317
MICHAEL A GRAY &
SARAH A NICKOLA Y
8510 TIGUA LN
CHANHASSEN MN 55317
ROBERT J & ARLENE T HART
474 MISSION HILLS WAY E
CHANHASSEN MN 55317
RICHARD K & THERESA A HESS
8561 MISSION HILLS LN
CHANHASSEN MN 55317
PAUL D JUAIRE
462 MISSION HILLS WAY E
CHANHASSEN MN 55317
JEAN M KAMRATH
434 MISSION HILLS WAY E
CHANHASSEN MN 55317
KLlNGELHUTZ DEVELOPMENT CO
350 HWY 212 E
PO BOX 89
CHASKA MN 55318
KAREN L BLENKER
405 RICE CT
CHANHASSEN MN 55317
BEVERLEY K DAVIS
466 MISSION HILLS WAY E
CHANHASSEN MN 55317
RONALD S & BARBRA T EWING
8570 MISSION HILLS LN
CHANHASSEN MN 55317
SCOTT E & SHANNON L FIEDLER
8511 MISSION HILLS LN
CHANHASSEN MN 55317
ROCHELLE R GREAVES TRUST
570 78TH ST W #2001
CHANHASSEN MN 55317
JOSEPH & GAYLE HAUTMAN
TRUSTEES OF TRUSTS
8551 TIGUA LN
CHANHASSEN MN 55317
BONNIE M HOGHAUG
425 RICE CT
CHANHASSEN MN 55317
TROY A & VIRGINIA L KAKACEK
380 86TH ST W
CHANHASSEN MN 55317
THOMAS D KARELS
416 MONK CT
CHANHASSEN MN 55317
NIKOLA Y V KRASNOKUTSKIY &
LIllY A KRASNOKUTSKIY
8564 POWERS PL
CHANHASSEN MN 55317
VY ACHESLA V KRASNOKUTSKIY &
NATAL YA P KRASNOKUTSKIY
4419 CINNAMON RDG CIR
EAGAN MN 55122
PAUL C LYONS
8571 TIGUA LN
CHANHASSEN MN 55317
NANCY JEAN MESSNER
478 MISSION HILLS WAY E
CHANHASSEN MN 55317
DAVID T & CORRINE A NAGEL
8550 TIGUA LN
CHANHASSEN MN 55317
RAYMOND C ORTMAN JR
JULIANNE E ORTMAN
8525 MISSION HILLS LN
CHANHASSEN MN 55317
BRENT W POPPENHAGEN &
KARl J BERG
8501 TIGUA LN
CHANHASSEN MN 55317
TIMOTHY T & TRACY A SALWEI
454 MISSION HILLS WAY E
CHANHASSEN MN 55317
STEVEN M & TRACY A SCHEID
451 MISSION HILLS CT
CHANHASSEN MN 55317
TANDEM PROPERTIES
7808 CREEKRIDGE CIR
#1:310
MINNEAPOLIS MN 55439
ARTURO F URRUTIA
408 MONK CT
CHANHASSEN MN 55317
KEVIN KUNZE
417 RICE CT
CHANHASSEN MN 55317
JOYCE I MANCINO
413 RICE CT
CHANHASSEN MN 55317
KURT D & LYNNE MILLER
8590 TIGUA LN
CHANHASSEN MN 55317
LARRY M & MARLENE R NASH
409 RICE CT
CHANHASSEN MN 55317
ERIC L PETERSON
KATHERINE M WELCH
8561 TIGUA LN
CHANHASSEN MN 55317
JENNIFER RENKL Y
446 MISSION HILLS WAY E
CHANHASSEN MN 55317
GORDON A & BRENDA M
SCHAEFFER
8591 TIGUA LN
CHANHASSEN MN 55317
JAMES M SCOTT
PO BOX 544
CHANHASSEN MN 55317
RACHELLE L TIMLIN
404 MONK CT
CHANHASSEN MN 55317
AMANDA C WINBLAD-VONWALTER
438 MISSION HILLS WAY E
CHANHASSEN MN 55317
JUDITH A LEHMAN
412 MONK CT
CHANHASSEN MN 55317
LUANN M MARKGRAF
401 RICE CT
CHANHASSEN MN 55317
JULIE S MONROE
418 RICE CT
CHANHASSEN MN 55317
DAVID & SHARON NICKOLA Y
8500 TIGUA LN
CHANHASSEN MN 55317
MARK D PILATE
470 MISSION HILLS WAY E
#115
CHANHASSEN MN 55317
BRIAN M & DAWN M RODELL RILEY
8580 MISSION HILLS LN
CHANHASSEN MN 55317
CARMEN M SCHALLOW
428 MONK CT
CHANHASSEN MN 55317
LAWRENCE D & NANCY E STEIN
8541 MISSION HILLS LN
CHANHASSEN MN 55317
SHANNA M UNKE
420 MONK CT
CHANHASSEN MN 55317
BARBARA E WOLTER
400 MONK CT
CHANHASSEN MN 55317
OS-IS
CHANHASSEN PLANNING COMMISSION
REGULAR MEETING
JULY 19, 2005
Acting Chair McDonald called the meeting to order at 7:00 p.m.
MEMBERS PRESENT: Jerry McDonald, Kurt Papke, Deborah Zorn, Dan Keefe, Debbie
Larson, and Mark Vndestad
MEMBERS ABSENT: Vli Sacchet
STAFF PRESENT: Kate Aanenson, Community Development Director; Bob Generous, Senior
Planner; Josh Metzer, Planner I; and Alyson Morris, Assistant City Engineer
PUBLIC PRESENT FOR ALL ITEMS:
Matt Wessale
Dave Johnson
9350 Gary Avenue, Waconia
219 W. 82nd Street
PUBLIC HEARING:
HARD COVER VARIANCE REQUEST FOR A SINGLE F AMIL Y HOME LOCATED
AT 380 WEST 86TH STREET. TROY & VIRGINIA KAKACEK. PLANNING CASE NO.
05-18.
Public Present:
Name
Address
Larry Martin
Ginger & Troy Kakacek
2707 Spy Glass Drive
380 West 86th Street
Josh Metzer presented the staff report on this item.
McDonald: Does anyone on the commission have any questions at this time?
Larson: Yeah. I've looked at this... Is it on? Hello. When this came up before, you know I
understand that they didn't pull the permit to do the extra patio. Is it that large of an issue? I
mean we've gotten letters and things from some of the neighbors. They don't seem to be
opposed to it. What is the main problem with this because the way I see it, as it is, it looks like a
nice improvement. It's not a detrimental looking improvement to the home. So is the problem
because of the surface water?
Metzer: Right. This home's located in a single family residential district and they are limited to
25% hard cover for the whole property. If they're over that, they either have to bring it to
compliance or we end up here with the variance process. We as staff can't be subjective about it.
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Planning Commission Meeting - July 19,2005
Larson: Okay. So the main issue we're dealing with here is the fact that maybe their lot is
smaller than maybe others in the neighborhood.
Metzer: Right, but the fact remains that they have to comply with the 25%.
Larson: Okay, thank you. That's all I have.
McDonald: Anyone else have any questions?
Zorn: Josh I have a question.
Metzer: Yes.
Zorn: In order to come into compliance you need to, for hard cover surface, surface ratio needs
to be 25% or less.
Metzer: Right.
Zorn: And on page 4 of the report indicates that as the survey had shows that the home and
driveway alone are 25.8. Have you discussed with the homeowners ways to rectify that? Or
what an option would be...
Metzer: The only option would be to remove part of the driveway. Shave off some edge of the
driveway.
Zorn: Okay.
Metzer: It's not that significant. III square feet. If you took a strip along the edge of the
driveway you should be able to accomplish that.
Zorn: Okay.
Papke: What's the style of the house? Is it two story, rambler?
Metzer: It's a two story.
Papke: It's a two story. So it's almost a 2,600 square foot foundation, two story house. That's
pretty substantial.
Keefe: What is the, you said that the homeowner came in and asked for, you know consulting
with staff in regards to the landscaping. What do we typically communicate to homeowners in
regards to landscaping in terms of what they can do and what they can't do? Do we have sort of
strict?
Metzer: Well I believe the specific question at that time was, and this occurred long ago. The
specific question was how close can they come to property lines with landscaping and the answer
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Planning Commission Meeting - July 19,2005
was, you can landscape anywhere on your property but we encourage you not to, to stay out of
the easements in case we have to come in there and do work. The city would not be liable for
replacing any landscaping that was removed.
Keefe: Right. Do we typically you know recommend any sort of materials or recommend
anything in regards to how we landscape? And one of the things if somebody were to come in
and say well here's what we're thinking of doing, you know they might say we're thinking about
putting in some plantings and whatever and they might include a patio, but maybe they wouldn't,
but do we get into those types of.
Metzer: It's got to be very case specific I guess. You know it's hard to say. In general ifthere's
an idea that they're going to be placing patio or anything like that, the issue of hard cover would
be discussed. _
Keefe: Okay, so it really just never came up in regards to.
Metzer: Apparently not.
Keefe: Yeah, okay.
Metzer: I can't say first hand so.
Keefe: Right.
McDonald: Anyone else? I guess I've got a couple of questions for you. On the patio you had
talked in here about maybe alternatives. If they were to put a deck up, does that begin to
alleviate the problems and if so, are there special considerations there as far as the under
foundation of a deck or anything?
Metzer: As long as, we don't consider a deck to be hard covered ifthere's no hard cover
underneath. If it's soil or some sort of landscaping with a fabric layer, we don't consider that
hard cover.
McDonald: Okay. On the, there was another thing in here that I'm a little confused about and
that's the drawings that were submitted. And correct me if I'm wrong but as I read this it sounds
as though the owner had one set which may have had these layouts on it. You had another set
that did not have these on it and what we approved as far as I guess the final approval were the
drawings in your possession. What happened?
Metzer: The big issue with the difference in the drawings was the driveway. The shape and size
of the driveway. What the city received in the permit package was the first drawing that I put up
there. You can see the difference in the driveway there. This was submitted as a part of the
building permit process and this is what we received as an as-built survey, and the applicant
informed us that this was what they had in mind the whole time. So that's where the confusion
came across as far as we know.
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Planning Commission Meeting - July 19,2005
Undestad: The submitted one was the 25% hard cover, is that right? The permit?
Metzer: I believe it was the 24 point some odd percent.
McDonald: Any further questions?
Keefe: Just to be clear on this. The driveway on the right looks like it's more like a lane and a
half coming in from the curb. Then widens out to the two lanes, and is it a two stall or three
stall? Three right and then the one that you received or approved did not include the patio
coverage or the sidewalk coverage.
Metzer: Right. The survey on the left was, we require as-built surveys for after homes are built
so this was the survey on the left was an after the fact.
Keefe: And the one on the right doesn't have either sidewalk or patio and had the reduced
driveway.
Metzer: Right.
Keefe: And that meets, it just barely meets the cover at 24.8. Okay.
Metzer: Right.
McDonald: Any other questions?
Zorn: I do have one more. As a new home builder myself, during the process when we were
working with our lot and the way the house would sit, I don't recall our builder indicating at all a
concern about size and this hard coverage surface ratio. Is there, do you encourage builders to
talk with their clients as they move forward? Just thinking that that might have resolved a lot of
confusion. . .
Metzer: Well I know builders are made aware of the hard surface restrictions in their zone that
they're building in.
Zorn: Okay.
Generous: Well it's a requirement on the design now that they give us those calculations.
Zorn: And that will likely help a lot.
Generous: Yes.
Zorn: Okay, thanks.
McDonald: Okay. And with that are the homeowners here?
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Planning Commission Meeting - July 19,2005
Larry Martin: Good evening Chairman McDonald, commissioners. My name's Larry Martin.
I'm here on behalf of the homeowners this evening. My address is 2707 Spy Glass Drive and I'd
like to address this issue for the homeowners. The commission asked, you know what is the
procedural posture for this evening and the answer that was referenced is correct. It is in the
alternative that there's two possibilities at the end of this process, after you make a
recommendation to City Council. City Council can either grant the variance, based on your
recommendation or deny the variance and once the variance is denied, if the variance is denied,
then those hard surface improvements will have to be removed. If the variance is granted, those
improvements can remain and the variance runs with the property and so there will always be an
exception for that piece of property that they'll be allowed a 30% hard surface coverage, based
upon that variance. And that's the reason we're here tonight is to ask for that variance. The
back drop, the question you had of staff is very good review of kind of the key issues, but as you
focus on this variance request, really what you need to kind of key in on are the 6 elements that
staff has outlined for you in their staff report. I think you'll find that on page 6, it's listed as
items a through f, and Ithink when you page down and take a look at item f, well there's really
no dispute there. I think item f is the one that talks about light and view and that kind of thing,
and interfering with your neighbor's property. Well that's not a concern. There's no dispute
about that. However, there is a little bit of a disagreement on each and every one of the rest of
the elements and so what I'd like to do is take a little bit of time and talk to you about those and
explain to you why you can make findings that are reasonable and make a recommendation to
City Council that this variance would be okay. And what I'd like to do rather than starting with a
is kind of go down the line a little bit to item d, which is whether or not the hardship, the
purported hardship is one that's self created. That's kind of an important issue when it comes to
variances and Planning Commissions generally spend a lot of time on that. One, it's kind of like
well are they making their own problem. In this case staff is saying that yes, this was a self
created problem because the applicant should have made a request for a zoning compliance
review, and if they had done that then this problem wouldn't have occurred. And that's a fair
observation but the commissioners need a little bit more of a back drop to the history of this so
they can understand how things, how the miscommunication occurred. Now we're not here to
say the staff did anything wrong. We don't think we did anything wrong either, but we got
caught in a sideways position here and that's why we're seeking your help. Those surveys that
were presented to the building department and the planning department a while back and when
the application was first made do not show the patio but I think that the actual building plans
show a patio and actually the future expansion of a, I don't know if it's a porch or 3 season or
screened porch. Maybe if I could ask for your assistance so I do this right. What the file should
have, or we didn't compare this to the file. The file didn't have these plans along with future
patio, future patio, four season porch, hot tub... Well of course under the hard surface
requirement, none of that's going in. However, we did set out very early on disclosing that these
future plans were intended. My clients recollect it very well because there was an issue with the
proposed footings for the four season porch that had to be revised. I guess it was a $200 cost
revision for making that footing revision. However when they actually came in to build the
house it was decided they couldn't afford all that and so it was pulled back and they just decided
to build it without the four season porch and without the patios for now. After that, and I think it
was something like the end of 2004. End of 2003 when the house was being completed, when
well there was a 6 month time period when the landscaping had to be completed and at the end
of the 6 months they knew they had to have all the landscaping in. They decided well you know
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Planning Commission Meeting - July 19, 2005
what, maybe we should put in the patio now as long as we're putting in the landscaping. The
applicant came to the city and met with them two times in July to talk to them about the patio
and the landscaping and it was specifically a question of whether or not they needed any permits
for the patio. And of course the city code at that time, and I think it's still true today, you don't
need a permit for the patio. So there wasn't a triggering event for a review. And so that's really
where the miscommunication is and that's kind of what generates a problem. But anyway, not
only did they come in twice in July to ask about the permit process and whether or not one was
necessary or what they needed to do, including the patio, but their developer came in after. Not
developer but their builder also checked to see whether or not he needed a permit to put in the
patio. And of course the response was no. You don't need one in the city of Chanhassen to get a
patio built. What you do need is a planning review. Well, I don't know if you necessarily need
it because there's no permit that you have to take out for it. But arguably because of this result
you do need to come in and talk to staff about it and get permission. Otherwise you get in the
situation that we're in. However when you go to the counter and talk to people about it, they say
you don't need a permit. Well it sounds like staff's kind of worked that all out and you're
required to show calculations to prove your hard surface requirement is met or that you're not
exceeding it. But we were caught in that gray area where things weren't explained quite so well.
Now, that's all important back drop to this item d. The alleged hardship is not being self created.
Well, you know who's fault is it? I don't think it's my clients fault, and I don't want to say it's
staff fault either, but there was a point in time when things where a little bit gray about what you
needed to do to put in a patio. You didn't need a permit. But a zoning compliance review would
have been really good if somebody had told us that we needed to do that. If they would have
told us, then they would have built a deck. Now we've got the patio and that's a problem, and
tearing it out now is a hardship after all this is said and done because there's a significant amount
of money that's invested in it. Okay, so that's kind of the critical juncture where things went
awry. Now is that a hardship created by them? I don't think so but you know that's a finding of
fact for you to make and make a recommendation to the City Council on. But then after you
decide that, if you decide that that's not self created, then the rest of the elements I think are a
little bit easier for you and so like for a, literal enforcement causes undue hardship. Well, if the
hardship is based upon a miscommunication with staff and it's really not the applicant's fault and
here they are in a situation where they spent a lot of money on an improvement and if you go the
wrong way on this and don't grant them the variance and they have to tear it out, they've lost a
lot of money and if you lose money, that's a hardship and if it's a lot of money, it's an undue
hardship. And in this case I think we're talking about an investment of about $6,000. That's
going to be painful if they have to do that. Item number b. Conditions are applicable to other
property generally in the zoning district. Well what staff is saying is true there. Certainly the
25% requirement is a requirement of each and every property within the zoning district that
they're in. However, the special condition that applies in this variance request is that it's the
miscommunication is the condition or the event that creates the hardship that creates the
problem. Is the miscommunication and the unfortunate circumstances that arise because of it the
same thing for each and every property and the jurisdiction? Or in that zoning district. The
answer is no. I mean this is going to be one, you know hopefully you won't see a whole lot more
of these pop up but when they do come up, it's a good thing to help your neighbor out on when
things have gone awry. It won't be an overriding problem with a bunch of property in the zoning
district. C. Is the purpose of the variance based upon a desire to increase value or income
potential for the property? Well certainly there's an investment in those improvements.
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Planning Commission Meeting - July 19,2005
However this is a motivational element. You know what's the purpose of the desire or the intent
of the applicant once they achieve it? Well it's not a money making thing that they're working
on. What they want to do is avoid losing money that arises back again from that
miscommunication. And so I think staff's proposed finding there is a little bit too strong, and it's
more to avoid loss than it is to seek gain. And that brings me back to that item d which is the not
self created issue that I started the discussion out with. Commissioners, the light and air problem
is not an argument, point of argument with staff. And I want to say again is that there was, I
think it's clear that there was a gray area in how they should have been treated a while ago.
That's something that happens frequently in cities and I don't think anyone's to blame but we
strongly request that you give the alternative. Staff's been kind enough to list an alternative
decision for you to recommend approval of the variance. We hope that you, to pick that out as
your choice this evening and adopt findings of fact consistent with our presentation. There is,
this isn't worth.roentioning because really, but Ijust put it on the record so you understand the
issue. There's a condition that's been added regarding trees. With respect to trees, I think there
is a subdivision condition that requires 2 trees in the front of every lot, and then there's a series
of trees that were to be planted in the back of these lots. In my mind there's a little bit of a
difference in interpretation on how that applies. But after I reviewed the condition it just says
you know comply with the subdivision condition and so if there's a disagreement on how that's
to be interpreted, we can work that out. Certainly it's reasonable to require us to comply with the
condition of that subdivision because it's already stated. How you interpret it's a different thing.
Unless Ginger and Troy have anything to add, we'll answer any questions that you have of us.
McDonald: Okay, I'll throw it open to question.
Undestad: I just have one question. When you did your initial building permit application, did
you talk about the 25% coverages and all that at that time or? So you really had no idea that any
of that was going on?
Larson: I've got one quick one too. We spoke earlier about possibility just cutting the driveway
out. Is that a consideration for your guys? A portion of the driveway which would put you in
compliance. Rather than taking out your patio. I understand not wanting to get rid of that but a
portion you know.
Undestad: I don't think that would work. A sliver would be if they didn't have any other hard
surface on there. Their initial plan that was shown on there, their house and driveway was,
actually that was over on the 25%.
Larson: I mean instead of.
McDonald: If they take all the hard surface out except the driveway, you're still over.
Papke: So let me ask the converse question. At the end of the day we have to either approve or
deny the variance. Would you be willing to accept a variance of .8% that would allow the
driveway to remain intact and simply remove the patio?
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Planning Commission Meeting - July 19,2005
Larry Martin: We definitely would like to have this heard by the City Council. Let me state it
this way. When we made the appointment for the initial meeting, there was also a request in the
application for a variance to include the sidewalk and the other hard surface areas, and we took a
look at that and we said well, you know what. The biggest issue that we have here is the patio.
That's where the biggest expenditure is. That's where we were. We got off the beaten path by
the miscommunication. We're trying to avoid that loss and so we really want to exhaust all of
our potential remedies. Now having said that, what we did try to do when we tabled it and came
here tonight is try to eliminate anything that you know is easier to say yes to, and so like if you
wanted to say you know, take the sidewalk off. Well we would say yes to that anyway. Or take
the gravel pathway out. Well they ask us that, we'll say yes to that. So you know let's just do
that before we go ask them for the big item. Because that's really what we want. If there were a
way to easily do it structurally to amend the construction of the driveway, it'd be easier to say
yes to that too bat the thing about that is, it is constructed in such a way that it's not a 2 car
garage, as it says in the staff report. It's a 3 car garage and if you don't you know have a
minimum amount of dry space to get to that third stall, you know even if you, even if you cut it
out, then you're driving over the grass and that gets compacted into a hard surface and becomes
an eyesore and we just want to maintain it for reasonable maneuverability.
Keefe: I've got one question. Can you go back to the permitting of the patio briefly and restate
kind of, I got lost a little bit in regards to what happened there because at least my thinking is
that most builders who come in and most patio builders are pretty familiar with coming in to
draw a permit for a patio within the city of Chanhassen.
Larry Martin: Well that's the confusing part is that Commissioner, Chairman McDonald,
Commissioner Keefe. The city doesn't require a permit for a patio and so when people come in
and say, do I need a permit for a patio. The city says no. They walk away and say well I can go
build my patio. What you need to say in addition to that is, however you might run into a
problem if you don't have the zoning compliance review, which technically is a permit but if
they don't hear that, they just walk away and figure that they can build it. Now staff has solve
that problem because you have to submit your impervious calculations before you draw a permit.
So that glitch in the system has been eliminated. But we're still stuck... was still confusing.
Papke: Several questions all related. Was the builder of the patio the same as the builder of the
home?
Larry Martin: I don't think so. No, it's a different builder.
Papke: And did you ask the builder of the patio whether or not he or she was aware of the hard
surface coverage?
Larry Martin: Actually the builder of the patio came in to ask also about permit requirements
and he was told that there weren't any permits needed.
Papke: But did you ask him if he was aware of the hard surface coverage limitation within the
city of Chanhassen?
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Planning Commission Meeting - July 19,2005
Larry Martin: We didn't understand the hard surface requirement until.
Papke: Have you asked him since then?
Larry Martin: No. I'm assuming not.
McDonald: Any other questions from anyone else?
Larry Martin: Thank you commissioners.
McDonald: Well I've got a question for you. Yeah, I'm still trying to figure out this permit
thing myself. As to when things happened. The original builder of the house I take it had
nothing to do with the patio. The patio was contracted after the house was built?
Larry Martin: That's correct Chair.
McDonald: Okay. And the builder who did that you're saying was unfamiliar with the zoning
compliance review or the fact that there may be other zoning issues that just because he doesn't
need a permit for a patio, he may end up needing a permit to be in compliance with our zoning
ordinances. He didn't understand all of that.
Larry Martin: Well there is no permit requirement.
McDonald: There would be no permit requirement but with the zoning compliance review you
would have found you didn't meet the 25%, so a builder should have known that while I don't
need a patio, I may need to look a little bit further and make sure that there's not something else
that's going to jump up and sabotage all of this.
Larry Martin: That's true commissioner. If it's reasonable to anticipate that a builder once told
that permits are required, should have a reason to believe that a zoning compliance review was
necessary. Which seems unlikely to me. That's a little backwards.
McDonald: Was this a builder who had done other projects within the city of Chanhassen?
Larry Martin: I don't know the answer to that question.
Ginger Kakacek: Yeah he's been...
McDonald: And he's done projects in other municipalities I take it also?
Ginger Kakacek: Yes.
McDonald: Then why wouldn't he be aware of the fact that there was probably a zoning
compliance that he should have looked at? I could understand where the homeowners may be
confused in this. I'm having a problem understanding how a licensed builder would be
confused.
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Planning Commission Meeting - July 19,2005
Ginger Kakacek: ... where he should put the patio...
McDonald: He's still licensed. He is licensed, right?
Ginger Kakacek: Yes, he is licensed.
McDonald: If he's done, ifhe does commercial projects he should know.
Larry Martin: Quite frankly Chair I've been practicing land use law for 25 years at a broker,
appraiser. Worked for cities. Worked for counties. I understand the hard surface requirements.
It seems easy for me to see and understand how someone would be confused if they came in for
a permit and if the issue about zoning compliance wasn't raised at the time of permit application.
That they would think that nothing else would be necessary.
McDonald: Okay. That's all the questions I have. Does anyone else wish to speak on this
matter? Okay, seeing no one else I will bring it back up to the council for discussion. Who
wants to start at which end?
Papke: Okay, I'll start. I'm opposed to granting this variance for two main reasons. First of all
it was partially justified by the applicant that the neighbors don't come close to exceeding the
hard surface coverage, but the city code clearly spells out that we manage hard surface coverage
on a lot by lot basis. To try to manage this across a whole neighborhood would get us into a tar
pit of discussions as to how do you allocate the over's and under's and all that kind of good stuff.
So clearly from my perspective the fact that the neighbors don't come close to exceeding the
coverage is no, is not a valid argument. The other one is the argument as to the hardship nature
of the request, and this is similar to some of the other ones that we've discussed in the past, that
as as-built situation, just because someone has built the structure or put in the patio, that does
not, and having no knowledge of the city code restrictions, does not constitute a hardship in
retrospect. So I do not see any cause for hardship here. The third argument, or issue is, well I'll
leave it at that. That's probably enough said, thanks.
McDonald: Debbie.
Zorn: I also would not recommend this variance for the same reasons as Kurt. I've been through
that process of the home building recently and I know it's a difficult situation and I feel for this
homeowner but I think it would be very hard for us to continue to be confronted with variances
throughout the city. And I am very pleased that there are some alternatives that the city is
recommending and if considering a.8 variance might, probably wouldn't be something we
would recommend. Possibly so, but I guess that's something for a discussion for another time.
Papke: I've got one additional comment. Yeah, the third issue reoccurred to me. The other
issue surrounds the zoning compliance process and the applicant stated that this is new and so
they weren't aware of it at the time but one has to recall why this was originally implemented
and I haven't been around that long but I've been around long enough to been a part of the
initiation of that process and the zoning compliance process is there specifically to help avoid
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Planning Commission Meeting - July 19,2005
these kinds of situations as a communications tool. It's not a requirement that we put on people
to add extra work or there's no extra rules there. It's just specifically to help avoid these kinds of
situations and help eliminate communication miscues and so the fact that this occurred during the
time period within which that was being implemented, okay so we're improving the process but
that doesn't necessarily excuse the lack of knowledge of the city code.
McDonald: Okay. Dan.
Keefe: I'm trying to find a hardship here and I think despite what the applicant came up and said
in regards to letter d, I'm just not quite there in regards to buying into that. Our job is really to
you know enforce the code and we can potentially grant a variance here if we find a hardship but
I'm just having a hard time getting over that threshold and I feel for the applicant but I think our
job is really to,~ou know we're here to interpret and I think you've got to take it to the next step
so I would deny this.
McDonald: Okay. Debbie.
Larson: My main issue with this is the whole reason these rules are put in place is because of
the, to keep Chanhassen and to keep the water and all that in compliance or just to make sure that
the land doesn't get messed up in case we have a big water event or whatever. And yes it's a
hardship but it's also that if you have to tear this out, all the money that was wasted going into
this. However, like everybody else has said, lack of knowledge is not necessarily an excuse. I
feel bad that it wasn't spelled out to you as clearly as it possibly should have, but again I think
too your builder, your original architect, everybody that was submitting plans and they.. .had
known. The fact that it was put in there as a potential on your original plan isn't saying that it's
actually going to be done because that would be an issue that would be brought up later. So
unfortunately I would have to suggest denial on this as well.
McDonald: Mark.
Undestad: No comments.
McDonald: I guess the only comments that I will make, I don't want to repeat what everybody
has said but you're asking for a big variance. 4.8%. While that may not seem like a big
variance, we've had people in here before that have asked for less than that and we've sent them
back to the drawing board. These rules are in there for a reason. Again what I go back to is that
you had a licensed contractor do this. It is their responsibility to make sure that they are code
compliant. They have a liability to do that as a duty to you so I just, I have a problem granting
the variance. I would probably be more likely to grant the variance on the driveway because you
do make some good points there, but as far as the patio, it's not as though we're going to be
taking away your back yard. It's not as though we're going to be taking away your patio. You
can put a deck out there and it's the same thing. You will still be able to use your back yard. So
based upon that, I guess I would throw it open for a recommendation.
Papke: Before we make a motion do we want, based upon what the applicant has heard, do we
want to give them one last opportunity to amend their application?
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Planning Commission Meeting - July 19,2005
McDonald: I will advance that courtesy to them, if they wish to amend their application.
Larry Martin: No.
Papke: Okay.
McDonald: Then I will throw it open for a motion.
Papke: Mr. Chair, I make a motion that we deny Variance #05-18 for a 4.23% hard surface
coverage variance from the maximum 25% hard surface coverage restriction for the addition of a
patio and retaining wall on the lot zoned single family residential, RSF based upon the findings
in the staff repoo and the following. Number 1. The applicant has not demonstrated hardship.
Number 2. The property owner has reasonable use of the property. Therefore the Planning
Commission orders the property owner to remove sufficient impervious surface to comply with
ordinance requirements and to plant 3 trees to meet subdivision requirements.
McDonald: I have a motion. Do I have a second?
Larson: Second.
McDonald: I have a second.
Papke moved, Larson seconded that the Planning Commission deny Variance #05-18 for a
4.23% hard surface coverage variance from the maximum 25% hard surface coverage
restriction for the addition of a patio and retaining wall on the lot zoned single family
residential, RSF based upon the findings in the staff report and the following.
1. The applicant has not demonstrated hardship.
2. The property owner has reasonable use of the property.
Therefore the Planning Commission orders the property owner to:
1. Remove sufficient impervious surface to comply with ordinance requirements.
2. Plant 3 trees to meet subdivision requirements.
All voted in favor and the motion carried unanimously with a vote of 6 to O.
PUBLIC HEARING:
REQUEST FOR REZONING OF PROPERTY FROM A2 TO PUD-R; SUBDIVISION
WITH VARIANCES OF APPROXIMATELY 91 ACRES INTO 84 LOTS. 3 OUTLOTS
AND PUBLIC RIGHT-OF- WAY; SITE PLAN APPROVAL FOR 459 TOWNHOUSE
UNITS; WETLAND ALTERATION PERMIT; CONDITIONAL USE PERMIT FOR
ALTERATION OF THE FLOOD PLAIN; AND CONDITIONAL USE PERMIT FOR
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