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
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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.
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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?
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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.
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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.
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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
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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
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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
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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.
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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.
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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.
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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
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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?
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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.
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