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PC Minutes 10-18-05CHANHASSEN PLANNING COMMISSION REGULAR MEETING OCTOBER 18, 2005 Chairman Sacchet called the meeting to order at 7:00 p.m. MEMBERS PRESENT: Uli Sacchet, Debbie Larson, Mark Undestad, Kurt Papke, and Jerry McDonald MEMBERS ABSENT: Dan Keefe and Deborah Zorn STAFF PRESENT: Sharmeen Al-Jaff, Senior Planner; Josh Metzer, Planner I; and Alyson Morris, Assistant City Engineer PUBLIC HEARING: REQUEST FOR AFTER THE FACT HARD SURFACE COVERAGE AND SIDE YARD SETBACK VARIANCES FOR A SPORT COURT ON PROPERTY LOCATED AT 8491 MISSION HILLS CIRCLE. APPLICANT, CLINT & JENNIFER HURT, PLANNING CASE NO. 05-32. Public Present: Name Address Vern Lindemann 552 Mission Hills Drive Clint & Jennifer Hurt 8491 Mission Hills Circle Jane Zureich 8490 Mission Hills Circle Josh Metzer presented the staff report on this item. Sacchet: Thanks. Questions from staff. Any questions? Not at this time? Alright, do we have an applicant here? If you want to come forward. State your name and address for the record and why don’t you tell us a little bit of what’s going on here from your point of view. And you may want to take that microphone in front of you. Jennifer Hurt: I’ll take it all the way down here. I’m used to that. Well first of all we want to thank you for listening to our request. We want you to know that obviously we’re in a little bit of a bind. Sacchet: So you are Clint and Jennifer Hurt. Jennifer Hurt: Yes, I’m Jennifer Hurt. This is Clint Hurt. Sacchet: Just to be clear, thank you. Jennifer Hurt: Yes, sorry forgot. Anyhow we now know that our Sport Court, which was built in May of 2005 is not in compliance with city code. When we hired our contractor back in May Planning Commission Meeting – October 18, 2005 of 2005 he assured us that he would be taking care of everything for us, including checking in with you to make sure that we were in compliance with the city. We felt confident that the work would be done in accordance with the city but we were let down. We want you to know that we would have never built the Sport Court had we known this would be in violation of city code, but now we have to deal with the fact that we have a court that is way too big and that’s why we’re applying for this variance. So what we’re requesting is a 4.4% hard surface coverage variance and also a 5 foot side yard setback variance. We plan to remove 8 feet off of the south side of the Sport Court, which is 320 square feet total. We will also remove a concrete slab that we had planned on putting a shed, which is 120 square feet and we will also be removing 128 ½ total square feet of retaining wall. So we have 16 letters from neighbors who support us and have benefited from our Sport Court as part of our neighborhood. Several children in our neighborhood have also used the Sport Court. We take comfort in knowing that our children are in our back yard rather than a mile away or still playing in a park. While the parks are fun to visit, the closest park to us is Rice Marsh Lake, which is accessible via walking trail but it’s approximately a mile away. And we also have Lake Susan Park which is the park we visit frequently but we have to cross over Highway 101 and in the very near future here we know that Highway 101 is not going to be a safe thing to cross. So, let’s see our intent of installing the Sport Court was not to increase the value of our home but rather provide a safe place for children to play close to our house. Clint Hurt: My wife being short I’ve got to always lift things up. We’ve also, my name is Clint Hurt. We also went over to the town houses and actually I talked with several of the people right in the existing that actually overlook our Sport Court, and by going with them you know we also, we’re showing a willingness to take care of that, the setback, or the 8 foot. Cutting off the 8 off the back would actually you know take the town houses and put everything on that back side. In doing, talking so I did talk with two of the board members. I also talked with several of the occupants there that a lot of them were just saying why can’t you just leave it all in you know, it’s for the kids. There’s nothing better than to hear children laughing. It’s also nice to see the kids playing somewhere not in the streets, and being a nurse I take care of kids you know and it’s stuff that we don’t like to see happen when kids get hit by cars. This is exactly how we feel. We absolutely love our Sport Court and we love seeing the kids play back there. It takes them off the streets and puts them in a safe area. By also taking off that 8 feet off the back, we’re actually making it so we aren’t able to play tennis anymore, which we already were able to do, so now what we actually can do is, we can actually play 3 on 3 basketball without crowding each other. We can Rollerblade on it with you know several kids on it. We can play volleyball. We can play badminton. We can ice skate on it with the kids in the wintertime too. Keeping kids off the streets is our main thing. We feel by cutting the Sport Court down to the allotted size that it says, we wouldn’t be able to have as much fun on it and also we wouldn’t be able to allow as many kids on the Sport Court at one time to keep that safe also. So please consider our request. Sacchet: Thank you. Do we have any questions for the applicants? Alright, yep go ahead Jerry. McDonald: I’ve got one. One of the things I read through here was, I guess you’re real reluctant to want to, either to take it out or cut it down but what harm would it do to cut down the size of it so it is in compliance. I mean you’ve got quite a bit area there and even if you were to cut down 2 Planning Commission Meeting – October 18, 2005 a little bit more, there’s still more than enough area to play basketball on and those types of things. Clint Hurt: If we cut it down to the size that it’s, what it is. Wouldn’t have a, wouldn’t be able to play volleyball. Wouldn’t be able to ice skate. Wouldn’t be able to Rollerblade. Keep the kids off the you know streets. Jennifer Hurt: I think in addition it’s, you know it’s somewhat of a financial burden for us. I mean we invested this money and put this into a Sport Court. Now we have to take it out. I mean I understand that there are certain rules and regulations and we did break those rules and again it’s not something that we intended to do. You know like I said if we had, going all back before this all started we would have never considered something like that but now we are stuck in the situation and it would be a bit of a financial burden. I mean it’s already cutting, we’re cutting off a decent chunk at the end of it so that we’re in compliance with the easement on the townhouse side. On the south side of our court. And if we are to cut as much as we are supposed to cut so that we can reach that 25% hard surface coverage, we’re cutting our court in a little bit less than half of what it is. McDonald: Okay, let me ask you a question about the contractor. When he put this together were there guarantees that he was going to take care of all the permits and had he dealt with the city before? Clint Hurt: …times to make sure that he was going to talk with the council or whoever it was here to check with any zoning or regulations or rules that we’d actually have to go through and he said that he’d take care of everything for us. McDonald: Okay, have you talked to him about any of the costs if you have to comply with the ordinance? Clint Hurt: We will have to do that yes. We have talked with him and he’s willing to work with us but it’s. Jennifer Hurt: It’s still going to be, we’ve invested the money and I don’t think we’re getting it back. Sacchet: So at least it won’t cost you more to change it. Jennifer Hurt: It won’t cost us more but it sure wouldn’t have cost us so much to begin with. Sacchet: It wouldn’t have cost you so much in the first place. Jennifer Hurt: Right, because we pay by square footage. Sacchet: Any other questions Jerry? McDonald: No. 3 Planning Commission Meeting – October 18, 2005 Sacchet: Actually I’d like to add on that a little bit. I mean are there any other possibilities to reduce this hard cover? Jennifer Hurt: Well I guess if there are suggestions from you we’d certainly would consider that and. Papke: Have you considered making a level grass area? Some people do play tennis on grass courts for instance which would be permeable. Jennifer Hurt: Okay, we haven’t thought of that. Metzer: There’s some patio area they could possibly…some sidewalk area up front. That’d be an option for me to, obviously some is still going to have to be removed from the Sport Court to comply but. Sacchet: It’s a pretty sizeable driveway. Almost 1,500 square feet and then there’s the walk through porch. Maybe some of that could be made impervious. Jennifer Hurt: Take off the driveway? Sacchet: Well you need a driveway. Jennifer Hurt: Well, not really. Clint Hurt: Just got to shorten it up. Larson: Or narrow it. Jennifer Hurt: Narrow it. Sacchet: And where do you need the side yard variance? Is that to the. Jennifer Hurt: It appears as though we have the. Metzer: That’d be the side. Jennifer Hurt: Right. Sacchet: So with what you take out to the, I guess that’s to the south. There you wouldn’t need it on the south side but you would need it on the west side. Jennifer Hurt: And on the south side we’re complying with the south side. It’s the west side that we are asking for a variance as well. Larson: Is that a 3 car garage you have? 4 Planning Commission Meeting – October 18, 2005 Jennifer Hurt: Yes. Larson: What if you were to make it closer to 2 car? Well, it kind of looks like it already is but, you could make it quite narrow and then just at the very end scoot it over so you can get, you know you could park in front of it if you needed to or whatever but. We’d like to work with you on this. Jennifer Hurt: Thank you. Appreciate that. Sacchet: It looks like you have huge support from all the neighbors. Jennifer Hurt: We do. Sacchet: Did any of the neighbors have any reservations? Jennifer Hurt: Reservations? No. Not that we’re aware of. Sacchet: It seems like everybody is just. Jennifer Hurt: Well we love it. I mean we. Clint Hurt: …the retaining wall and everybody loves the boulder wall on one side. Sacchet: Now you’re talking about taking out the retaining walls, most of them. What impacts will that have on your? Clint Hurt: On one side we actually have to come in with a grader. Hire a grading contractor and actually be sloped off. Sacchet: So you have to slope it a little bit, yeah. Jennifer Hurt: But we met with Dan Remer, the city engineer when we met with Josh and we talked about that and… Sacchet: It can be sloped and… Jennifer Hurt: …when it was originally and he said that would be fine. We didn’t finish it. When we moved into this house 2 years ago it was obviously already built. There was a previous owner there and she never finished off that back part so that was ideal to us because we had plans of either putting a pool or a Sport Court back there so we thought well great, we don’t have to rip up a bunch of sod and you know whatever else would have been back there. Landscaping. Clint Hurt: And I mean there was a lot of, I mean weeds and stuff like that so it’s taking control over really our back yard. 5 Planning Commission Meeting – October 18, 2005 Jennifer Hurt: Our neighbors are thrilled to see that it’s better than weeds that’s back there. Larson: It’s beautiful. I mean there’s no doubt that it’s really. Undestad: Is there, Josh is there, you back up to some townhomes and I noticed one of the letters in here was from the neighboring association or something. Is there other, I mean is there common areas out there in the townhomes or in that neighborhood that could be offset or mitigated somehow with hard surface? Metzer: We, you know we can’t do a hard surface easement. I don’t think we do that. I guess it would have to come down to a sale of property to pick up land with the homeowners association. Al-Jaff: Mission Hills has a totlot. That’s part of the homeowners association for Mission Hills. Not part of. Undestad: So there isn’t really any outlots or anything that they’d have an opportunity to buy a piece of. Al-Jaff: I can’t think of any. Jennifer Hurt: To make up for extra land so it comes down our hard surface coverage. Sacchet: And you said the contractor is not really willing to give anything back. Jennifer Hurt: The contractor is willing to. Sacchet: But he’s willing to help you at least not incur more costs. Jennifer Hurt: Well he’ll take it out for us, you know. Clint Hurt: He won’t be refunding anything. Jennifer Hurt: He’s not going to be refunding any money to us and we’ve paid 90% of it. Sacchet: I mean he did assure you that he would check and he’s. Jennifer Hurt: Yes, and he’s well aware of the fact that he did assure us of that. Sacchet: You’d have to have some leverage there. Jennifer Hurt: We do. Sacchet: Any other questions? No? Alright. Jennifer Hurt: Thank you. 6 Planning Commission Meeting – October 18, 2005 Sacchet: This is a public hearing. I’d like to open that. If anybody wants to comment, please come forward. State your name and address for the record and let us know what you have to say. Vern Lindemann: Good evening. I’m Vern Lindemann. I’m the President of Mission Hills Garden Homes Association. The commons property that abuts the property in question here, and let me give you a little background here. I don’t know who’s planning was involved in this Sport Court or whatever the situation was but there wasn’t a lot of thought given to the neighborhood impact when that was put in. No one talked to any of us ahead of time as to what we would think about it. The Sport Court is very, very close to two bedroom windows of two of our townhomes. As a matter of fact one of the residents has since sold because she could not put up with the noise of the banging, of tennis balls of the Sport Court. He echo’s up the hill. It is very noisy. I live and I realize this isn’t a noise issue but it is an issue of planning. When they put in that court, they were running cement trucks on our private streets. We are a townhome association. We own all the streets. We own all the utilities in our association. Cement trucks were running down our streets. I had to actually kick them out and tell them they had to use the city streets because of the weight restriction on our streets. No one asked us about that. And we’re kind of thinking this is one of those situations where some people think it’s better to ask for forgiveness than permission. And I heard the folks before me say that all the neighbors are in favor of it. That is absolutely not true. The two townhome owners that are closest to the court are definitely not in favor of it. They talked to board members, myself included. We refused to sign the petition. I brought it to the townhome board and I’d like to have you, I’d like to read a letter from the townhome board to the city. I believe you have a copy of that. It has come to the attention of the Mission Hills Garden Homes Board of Directors that the property owners recreational improvement at 8491 Mission Hills Circle, Chanhassen, Minnesota is in violation of city codes. The Board is also aware that the owner of that property has been canvassing the residents of Mission Hills Garden Homes for petition signatures to gain support for allowing a variance to the city code. The Mission Hills Garden Homes Board of Directors wish to make it a matter of record with the City of Chanhassen planning department that the property bordering on the improvements at 8491 Mission Hills Circle borders on the property owned by Mission Hills Garden Homes Association. While the border in question is closest to 520 and 528 Mission Hills Drive, it is the Board’s position that any request for variance should be addressed to the Mission Hills Garden Homes Association and not to individual residents. It is also the position of the Mission Hills Garden Homes Board of Directors that the City of Chanhassen not allow the property owner at 8491 Mission Hills Circle a variance to city code due to the overall impact on property at Mission Hills Garden Homes. I think the City, my personal view is, I think the City of Chanhassen has done a phenomenal job in the planning and building of the community. I think it would be a mistake to give a variance to deviations from code after the fact rather than having somebody apply before they put it in. Now I don’t know who’s fault it was, the contractor’s or the homeowners, okay. I as a homeowner know that if I put something in, if I’m going to do some improvement to my property, common sense tells me that I check with the city and make sure that the contractor, because I as a homeowner I believe have the ultimate responsibility for adhering to codes. The contractor does not, okay. And so I just think it’s, we run into this. Mission Hills Garden Homes, we’re a microcosm of the City of Chanhassen. Our Board of Directors is like City Council and the whole thing. We run into this all the time. Where somebody does something and then wants a variance or permission and we have found 7 Planning Commission Meeting – October 18, 2005 that every time we do that we get bit in the back end down the line by somebody who’s, we have a person right now that’s saying, if you don’t let me do what everybody else has done, I’m going to sue you for discrimination. Okay. So when you back off from good codes and you allow variances because of poor planning in advance, I think it is a mistake and I think the variance should be denied. Sacchet: I’ve got a question. The townhomes you’re talking about are directly adjacent to the south? Vern Lindemann: I’m sorry. Sacchet: The townhomes you’re representing are directly to the south. Vern Lindemann: Yes. Sacchet: Okay. Just want to be clear. Vern Lindemann: And our commons property abuts that property. Sacchet: Okay. Okay. Vern Lindemann: And the individual homeowners in Mission Hills Garden Homes do not have, the individual homeowners do not have control of their property. As commons property and any individual homeowner other than noise and nuisance or any other, really does not have unless they come to our board and present their case. I don’t believe they have standing in suggesting a variance on our property line. Sacchet: Alright. I think you made yourself pretty understood. Thank you very much. Anybody else wants to address this item? Please come forward. State your name and address for the record. Let us know what you have to say. Jane Zureich: Hi. My name is Jane Zureich and I live at 8490 Mission Hills Circle so I am Jen and Clint’s next door neighbor and I am the property that will be directly affected by this variance. Sacchet: So you’re to the west? Jane Zureich: I’m directly to the west. It’s a shared property line that the variance would be the requested on. Once they fix the easement issue takes that back 8 feet off and are in compliance with the 8 feet on the south side, it is the east side of their property line only that would be requesting the variance. That is my property line. When we first moved into that property in 2002, as Jen and Clint mentioned, it was not, they had done nothing to the property. They had brought the sod up not even to where their Sport Court starts now and it, when Clint says it was weeds, in the summer it was waist high weeds. I could lose my 3 year old in the waist high weeds. Jen and Clint immediately upon moving in, Clint mowed the lawn. I would say, I don’t know, 100-200 mice came out of that property. So the fact that they have done this to this is an 8 Planning Commission Meeting – October 18, 2005 immense improvement on that property from where it was before. You can’t even compare it to where it was before. They could have I guess chosen to sod the land, but it’s an unusual property in that it’s very deep. Both of our yards are very deep. Their’s is even deeper than our’s are, so to have it sodded, yes that was probably an option but it’s a unique piece of property that really lends itself very well to this Sport Court. I mean it really lends itself well to having something there for you to use. So I’m kind of in, we absolutely, we’ve taken full advantage. They are very, very open and welcoming with using the Sport Court. I mean we’ve used it quite a bit this summer, along with a lot of our other neighbors. We have a 3 year old and a 5 year old and I’d much rather see my 3 year old and 5 year old out in the back playing basketball, trying to play basketball, than out in the street and things like that. I mean we do live in a cul-de-sac but we have no sidewalks in the cul-de-sac. You know it’s gotten to the point where I send my kids, because we don’t have sidewalks and I’m like, go play in the street and then I’m, what am I saying? Telling the kids to go play in the street. Go play in their yard. Much better. So you know to say, and the issue about asking about them to reduce it in size, I do think taking the back 8 feet off is going to be, that’s a manageable reduction in size. I do think if they have to cut it in half, it’s really not going to be, they’re not going to be able to use it to the full effect. Or really to that great of an effect. We’re the ones where the retaining wall right now butts up to our property line. As soon as they remove that from there and then grade it so that it’s a slope, it’s not going to even be, it’s going to be at least 4 or 5 feet away from our property line, which we were even happy with the rock wall because as I said, anything was an improvement over what was there before. I don’t feel, I agree that everything in a perfect world and everything would have gone a, b, c, d and they would have had the variance beforehand and had all the permits that they were supposed to have, that would have been obviously the optimal solution. I don’t feel like you’re setting a precedence because as I mentioned, this is a unique piece of property. Who else has the amount of space that they have to even put something like this on their property? But even beyond that, even beyond because there are properties in Chan who do have that kind of space. It is a unique property that I don’t feel that people are out there going, clamoring for Sport Courts and this is going to set a unusual, awkward precedence. I think that if they have to take it out, it’s going to make it a very, almost funny looking piece of, I’d rather have a full Sport Court as my next door neighbor trying to sell my house, even to somebody who doesn’t have kids, then I would to have a funny cut up thing. Right now it’s a beautiful Sport Court. I mean as you see in the pictures, it’s beautiful. So it’s, do I think it’s going to affect my property value? Absolutely not. Never. I don’t think it’s going to have any negative impact on my property. Sacchet: Thank you. Jane Zureich: Sure. Sacchet: Anybody else wants to address this item? Seeing nobody getting up, I’m closing the public hearing. Bring it back to the commission for discussion or comments. Kurt, you ready? Papke: I’ll get the ball rolling. Couple points. First of all in terms of precedence setting. I st noticed that on our November 1 meeting we have two cases for hard surface coverage variances, one of which is after the fact, so to have those two follow immediately on the heels of this one I think is a tough spot. So I’m very sensitive to that precedent setting issue. I’m also concerned with the environmental sensitivity to the area. This is very close to Lake Susan. Very 9 Planning Commission Meeting – October 18, 2005 close to the creek and I think we have to be cautious of variance in environmentally sensitive areas. The, my real concern is I think the applicants have come into this with the best of intentions, and I’m starting to question whether our zoning compliance process that we put into place, what was it 2 years ago? When, Sharmeen do you know when we started doing this? Al-Jaff: It was about 2 years ago. Papke: I’m questioning whether it’s working because you know we’re starting to get some issues here that seem like people aren’t getting the message somehow properly. I don’t know if it’s confusing people. People come in and say well do I need a building permit? No, you don’t need a building permit so I think maybe they’re leaving saying well, I’m good to go. But there’s this zoning compliance thing that we’re not, it was intended to catch exactly these situations and it doesn’t so regardless of the outcome tonight, I think we need to take a serious look at that and see, what can we do because I think they have the best of intentions it sounds like. A good number of the neighbors are in support of this but because of all the issues, I’m not in favor of approving this. Sacchet: Thanks Kurt. Jerry, you want to jump in? McDonald: Yeah. First of all I did go out and I did check out the Sport Court and looked at it and I have to admit that you’ve done quite a bit with your back yard. Yeah, it probably is a fun place for kids to play and all of that. The problem we get into, you talk about precedence. If we do this, there is another case within your same neighborhood that we turned down oh about 4-5 weeks ago and it was, it wasn’t a Sport Court but it was patios. So this will set a precedence and it will set a precedence throughout the entire city. And before I came onto this I have to admit I would have probably been more in favor of this because I am a person that believes in, it’s your property. You should be able to do with it as you please. However what I have come to learn over the past 6 months, and I’ll deviate a little bit. I got involved in, out in Woodbury a week and a half ago. They had a serious flood out there and part of the problem was the City of Woodbury. There were 3 systems that failed. The particular client that I ended up talking to swamped out his basement all the way up to the top step. Total basement was wiped out. The reason why was because of a non-compliance with zoning laws. A drainage ditch had been covered up. Created a dam. Construction was going on. Debris flowed over into the main culvert and it just continued to cascade from there. The people of Woodbury were going after the City of Woodbury. They wanted a redress for all of this. They were blaming the city and the city may or may not have some liability. That’s something that would be determined if we ended up going to court. But the point of what that begins to show me is that it’s very important, these zoning requirements are there for a reason. Especially whenever we talk about water, ponding, drainage ditches, they’re all there. Everything is designed for a reason. Your back yard is basically a bowl. If it were to flood, and I went out there and looked at it and tried to see where the drainage patterns go and…it’s going to go right into her back yard. That’s going to go right into her house. Jane Zureich: Actually it’s been better since the Sport Court went in. We’ve had less of a wet back yard since it went in than we did before. It changed, we actually have better drainage now. 10 Planning Commission Meeting – October 18, 2005 McDonald: Well that, I’ll agree with you to a point but the thing is, I’ve seen it happen and we just haven’t had the kind of flooding that could occur, and once that happens, the first place you’re going to come is you’re going to come after the City because why didn’t we enforce something. Or you’re going to go after your neighbors and you’re going to want to sue them for creating a problem. The point is, is that these are put there for a reason and it’s not so much to impede upon your use of your property. Your property is just one of many pieces that connect to form a subdivision or a group of homes where people live. What you do on your property can affect others, 2, 3, 4 houses away. Sometimes blocks away so there is a reason for this. I do share the concern that you’re the second one I’ve dealt with. Contractor said they were going to take care of everything and nothing was done. I’m a little concerned that our zoning compliance isn’t working. I share your concern there. Something should be done because to find these things after the fact, we are now going to impose a great burden upon the homeowner. Not only do you lose the benefit of what you thought you had, but you may incur additional costs in the process of complying with the zoning codes. Is that fair to you? No. I’ll be the first one to say it’s not. But unfortunately you are ultimately responsible for compliance with zoning codes. Anything with the contractor is a separate issue. It’s not the City’s job to go after these contractors. I mean based upon all of that and the fact that I feel very strongly about the issue of precedence and also about the issue of water flow and drainage and ponding and all of this, I cannot support this. What I would suggest is, and I know in the other case they have worked with staff to try to come up with solutions. There are a number of things that you can do. We’re not asking you to give up your driveway, but there are other things you can do to your driveway. You can make it a porous surface. There are other things to do. It comes down to how bad do you want the Sport Court and what are you willing to do to offset it. Any offset to keep the Sport Court, my suggestion would be your contractor should pay for it. But that’s between you and your contractor. I do believe that we have to enforce this hard coverage surface code and because of that I could not support it. Sacchet: Give it a shot? Undestad: Just have a question. Again I agree with everything you’re saying here. The zoning ordinances are put in place for this but just a question. What if 2 or 3 or 4 neighbors all wanted to get together and put in a Sport Court in one location? Al-Jaff: If they meet requirements. Undestad: So it would still come down to that lot that. Metzer: It has to be on one lot and has to meet side yard, rear yard setbacks. And they’d better pick a neighbor that has the least amount of hard cover to begin with. Undestad: That’s all I have. Al-Jaff: Typically we see these type of sites with planned unit developments or as a townhome or subdivision comes in. Ashling Meadows is a good example. They have a swimming pool. They have, I think there is a Sport Court out there, so the developer plans it in advance. 11 Planning Commission Meeting – October 18, 2005 Undestad: One more. The boulder wall over in the west property line, that’s affecting the drainage right now? That’s in that drainage easement? That’s why that boulder wall would have to come out, is that it? Metzer: This is the west property line here. Outlined in black. Larson: Is that considered an improvement? In rocks. Metzer: I’m not aware what the drainage was beforehand. Well I don’t know, apparently Dan was okay with the removal of that lawn and berming. Sacchet: I mean that does bring an interesting aspect. I mean the contractor having slipped with the hard coverage is one thing but putting a retaining wall on the property line, I mean he didn’t care a bit about any regulations. I mean everybody knows that we have setback requirements for something we build. I mean something is definitely way off. Do you have anything else to add? Larson: Yeah, I just, like I say it’s a lovely Sport Court but like Jerry had mentioned, these 20 year, or 100 year rain events that we’re getting, I’ve been in my home over 20 years. Never had flooding and all of a sudden this year we’re having flooding and so your homes, your neighborhood is quite a lot newer than where I live but who’s to say at some point this is going to happen. You know where it’s all going to, I don’t know if it’s the settling or if it’s things fill up or whatever but the environmental impact eventually may catch up to you. I personally would like to see maybe if you can work with the city and see if you really want to keep this, you know comply with what you said you would do on the Sport Court but then also see what else you can maybe thin down your driveway or something and get it into that 25%. There are options and maybe you can just look at some of those. Jennifer Hurt: Okay so you’re saying though that if we take off, if we don’t take off in the back but we take off in the front of it, that’s going to somehow affect the flooding issues? That doesn’t make sense to me. Larson: The whole purpose of having this coverage on your property is how much water will actually go into the ground versus running off and going elsewhere and that’s where the issue comes in and a lot of people don’t quite understand why that is but it really affects an entire neighborhood. It affects the lakes, the ponds and everything. And so that’s why that requirement is put in there because it’s really to protect you and to protect your neighbors. Vern Lindemann: Could I make a comment here? Sacchet: If it’s real brief because we’re really beyond comments here. Vern Lindemann: Oh okay then. That’s okay. I was going to…drainage in the last heavy rain we had, we had rivers running down into the drainage pond down there and a lot of the neighbors rocks formed up… Sacchet: Yeah, let’s keep the discussion up here at this point, if that’s alright. 12 Planning Commission Meeting – October 18, 2005 Larson: So that’s all I had. Sacchet: You know it’s an interesting situation. On one hand I’d like to be the good guy but that’s not our role here. As a Planning Commission, as I stated in my opening remarks, our task is to look at to what extent do the issues that are brought before the city comply with ordinance and regulations. And when it comes to variances, we have a very clear set of standards that we are to apply. The first one is does it cause a hardship? And that’s not a very fluffy type of definition of hardship. It’s very clearly defined in the city code that a hardship means if you cannot use the property in the way that property’s in the surrounding 500 or so feet are being used, which in this case is to have a single family residence with at least a 2 car garage and you have that. The addition of Sport Court is not a hardship. Then we have to look at, is it applicable to other properties? The precedence thing which we heard several commissioners already express concern, and it is a very big concern because we’ve come across this hard coverage situation on a regular basis. It comes up a couple times a year at least. And it’s hard when it’s after the fact. It does set a precedent and from our position at the commission, our aim has to be to treat everybody the same. If we give him one, then we have to give another two, and as Kurt you pointed out, we’re going to have similar cases come in front of us within a few weeks, so that has to have some weight. Does another aspect that we have to look at, does it increase the property value? Now obviously you didn’t do it for that purpose but the fact is it does increase it. It’s a nice amenity to have. And then a very important thing that we also have to look at is it self created. Is it self created? And that’s really a sticky thing because if we do something and we don’t know the consequences, does that mean it’s not self created? You know it’s a little bit like if we don’t know that the red light at the light on the street means we have to stop and we go across and we get hit, it doesn’t mean we didn’t self create it, and that’s tricky. I mean not knowing about something doesn’t take that out, that it’s self created. And then another aspect, is it detrimental to public welfare? And as the discussion as we just had about the impervious limitation is very directly linked with the public welfare, so if you look at these things, then the last point that we have to look out is does it impair adequate light and the adjacent properties, which it doesn’t. But if we look at this list of criteria that by ordinance we’re supposed to look at, you’re really only coming out alright on one of them, and all the others ones you come at best questionable. Or not good at all so if we go by the letter of the law, we really don’t have a choice. We have to deny this. However, I do want to point out that you can bring this in front of City Council and City Council does have the leeway to go beyond just the letter of the law. In this group here we have a little bit of leeway but not quite that much. So that is a little bit another aspect here to look at. Let me see whether I have something else there. I would be willing to support the side yard setback variance based on the immediately neighbor not having an issue with it, and that does not quite have the same weight. But with impervious, I really feel very clear that I cannot support that. However, you have options to work around that. You could reduce the impervious surface in your driveway. Maybe you could do something with your walkways or patio type of things. Not get rid of them but make them permeable. I mean there are ways to do it so I think there are alternatives that you could explore that you find a balance and also we do have to also acknowledge the neighborhood association making a pretty strong point that not everybody is in support of it. As a matter of fact there have been some people that have an issue with the noise level, which I can understand. I mean you have kids. You like to hear them out there having fun and there’s somebody in the condo next door that 13 Planning Commission Meeting – October 18, 2005 their kids are grown or never had kids or what and they want the quiet. So you know, it’s just life in the neighborhood. But I think I talked enough. If anybody wants to add anything further or we can make a motion. Papke: Mr. Chair, I make a motion that the Planning Commission denies Variance #05-32 for a 4.5% hard surface coverage variance from the maximum 25% hard surface coverage restriction and a 5 foot side yard setback variance for the addition of a sport court on a lot zoned Single Family Residential based upon the findings in the staff and the following. Number 1. The applicant has not demonstrated a hardship. Number 2. The property owner has reasonable use of the property. The Planning Commission orders the property owner to remove sufficient impervious surface to comply with ordinance requirements. McDonald: I second Mr. Chairman. Sacchet: We have a motion. We have a second. Papke moved, McDonald seconded that the Planning Commission denies Variance #05-32 for a 4.5% hard surface coverage variance from the maximum 25% hard surface coverage restriction and a 5 foot side yard setback variance for the addition of a sport court on a lot zoned Single Family Residential based upon the findings in the staff and the following: 1. The applicant has not demonstrated a hardship. 2. The property owner has reasonable use of the property. The Planning Commission orders the property owner to remove sufficient impervious surface to comply with ordinance requirements. All voted in favor and the motion carried unanimously with a vote of 5 to 0. Sacchet: And I do want to encourage you to bring this to City Council. In addition I would encourage you to before you go to City Council, explore what options do you have that you could mitigate the impervious surface, particularly further and then you’ll see where you get with that. Clint Hurt: I have a question. Sacchet: Yes. Clint Hurt: Taking care of that variance in the back, that 8 foot setback, does that take the townhouses really out of the process situation? Sacchet: No it doesn’t. I’m not really an expert to answer that but. Clint Hurt: I’m just asking the question because there is no, we’re not, it’s not about the noise ordinance. It’s not…the amount of people on the yard at a certain time so…complain about after that? 14 Planning Commission Meeting – October 18, 2005 Jennifer Hurt: Even if we cut the sport court in half it’s still going to be a sport court… Sacchet: Yeah, I would have to refer, I mean you’d have to take up discussion like that with staff. I mean we’re not in a position here to counsel you on that. It’s, I mean as you well know with complaining, everybody’s allowed to complain and that’s the purpose of the public hearing so that everybody can come and make their statement and we try to listen to everybody to the best of our abilities to try to make everybody happy. But that’s only possible to a certain extent, and I would encourage you to discuss this further with staff as to how can you reduce the infringement or maybe eliminate it ideally and if there’s some type of variance you need, you can appeal our decision to City Council. Or alternatively if the situation gets enough changed, you may want to start a new variance process, but that’s something you have to discuss with staff. I mean that’s where you have to go with that, okay? Wish you luck. PUBLIC HEARING: REQUEST FOR A SITE PLAN AMENDMENT FOR SPALON MONTAGE TO PLACE A WALL SIGN OUTSIDE OF THE APPROVED SIGN BAND AREA ON PROPERTY LOCATED AT 600 MARKET STREET, APPLICANT KRAUS-ANDERSON REALTY COMPANY, PLANNING CASE NO. 05-33. Public Present: Name Address Cindy McDonald Kraus-Anderson Realty Mitchell Wherley 600 Market Street Josh Metzer presented the staff report on this item. Sacchet: Jerry, go ahead. McDonald: I have some questions for you. Okay, currently Americana Bank has got a gable sign and I read in here that the developer did that in the beginning. That was part of the negotiations. As far as building the building. Is that correct? Metzer: That’s correct. If you were to zoom in right here. This is on page, well it’s one of the attachments to the report. McDonald: Well the question I’ve got then, why wouldn’t we allow signage in the gables? Was the plan from the beginning that there would be signage there and we gave in for some reason when the developer first came through? Metzer: Well I guess we consider this a change to what was approved. If you notice on the north elevation, actually you can see it on the west or the north elevation, there was no provision for a sign on the second level. Only on the south elevation with the bank. I guess it was felt to go outside of that would be over stepping our authority. 15