PC 2005 11 01
CHANHASSEN PLANNING COMMISSION
REGULAR MEETING
NOVEMBER 1, 2005
Chairman Sacchet called the meeting to order at 7:00 p.m.
MEMBERS PRESENT:
Uli Sacchet, Deborah Zorn, Jerry McDonald, Mark Undestad, Debbie
Larson, Dan Keefe and Kurt Papke
STAFF PRESENT:
Bob Generous, Senior Planner; and Josh Metzer, Planner I
PUBLIC PRESENT:
Janet Paulsen 7305 Laredo Drive
Debbie Lloyd 7302 Laredo Drive
Cindy Koenig 8005 Cheyenne Avenue
PUBLIC HEARING: REQUEST FOR HARD SURFACE COVERAGE VARIANCE ON
PROPERTY LOCATED AT 8005 CHEYENNE AVENUE, MIKE & CINDY KOENIG,
PLANNING CASE NO. 05-34.
Josh Metzer presented the staff report on this item.
Sacchet: Thanks Josh. Any questions from staff?
Larson: Yes.
Sacchet: Yes, go ahead Debbie.
Larson: How come this just got noticed now? Was there never a survey ever, ever done?
Metzer: Not that we received until the home was ready to be sold. And there was an inquiry as
to permits for an issue.
Undestad: Now that they purchased land on both sides, is the permit sign all squared away do
you know?
Generous: They still need the variance.
Metzer: For the hard surface. It was originally a hard cover and two side yard setback variances.
They’ve eliminated the side yard setback variances and it’s now just a hard cover variance.
Larson: Are they, mention to you how they could possibly get rid of the, is it 500 square feet?
Metzer: About 120. It would probably be removal of.
Planning Commission – November 1, 2005
Larson: Sidewalk?
Metzer: Little bit of patio and sidewalk.
Sacchet: So it could be done. Reasonably. With like putting pervious sidewalk instead of
concrete sidewalk around, something like that. Any other questions? Jerry.
McDonald: I have one question about the, do we have a recommended list of what you can
substitute for hard cover area that would be acceptable that they could put down?
Metzer: Yeah, there’s you know landscaping mulch or rock. As long as they have a fabric liner
that water can percolate through. Of course sod is ideal. But, paver. Pervious pavers are not
considered by our code to be pervious by any percentage due to the compacting of ground
underneath in order for the pavers to be placed.
McDonald: But all these are items that can be gotten from you as staff as to suggestions for.
Metzer: Right.
McDonald: And then you said one other thing that I didn’t remember reading about. You said
that this came about, it was triggered by a sale of the home?
Metzer: Right. Expectant buyers of this property came to the city and were interested in
knowing a little bit of the history, whether or not permits were pulled for everything.
McDonald: Oh okay. So the current owners are the ones that made the improvements without
the building permit?
Metzer: Correct.
McDonald: Okay. No more questions.
Sacchet: Kurt you have a question?
th
Papke: Yeah. Could you explain a little bit about the September 4 storm event and what
actually happened there and maybe a little bit of color as to how the hard surface coverage might
impinge on that.
Metzer: That was actually a recommendation of engineering. I know Cindy has a little bit of the
background on that. She discussed that with me. I am not aware of it and unfortunately no one
from engineering is here tonight.
Papke: Okay. So what’s in the report is what we know here tonight?
Metzer: Right, and maybe Cindy can add a little bit more. She’s been in the neighborhood for
quite a while.
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Planning Commission – November 1, 2005
Keefe: I’ve got one more question. Just to zero in on the numbers just a little bit. The amount
of square footage that it would take to get to 25% is what exactly?
Metzer: 520.25.
Keefe: 520.25 and then it looks like the patio, sidewalk and stoop per the calculations in the
report is total 674, is that still an accurate number?
Metzer: Pretty close. It’s somewhere in there.
Keefe: Okay so, in order to get to the 25 but we’re talking some combination of something out
of the driveway potentially and/or.
Metzer: The driveway’s pretty much been reduced I would say to the max that we would expect
them to remove. …and sidewalk are probably the best options.
Keefe: Okay. And from your perspective in looking at it, do you think it’s achievable?
Metzer: Yeah, it could be done.
Keefe: And the stoop portion is just what? Where it comes out of the house or.
Metzer: Right, it’s like a step.
Keefe: And that portion is pretty small I presume.
Metzer: Right you know and I would think removal of the sidewalk wrapping around the garage
would probably be the number one alternative. I’m not exactly sure of the exact amount of
square feet that would be but probably a little bit additional removal from the patio in the back.
There are some pavers in the front off the front of the house there also.
Sacchet: So really for them to be fully compliant they would have to get rid of pretty much all
their.
Metzer: Patio and sidewalks.
Sacchet: Patio. That means the whole hard cover surface there in that little courtyard type of
shape.
Metzer: Majority of it.
Sacchet: Majority of that.
Zorn: Josh, can I ask you a question? Has that been recommended to the property owners as of
yet?
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Planning Commission – November 1, 2005
Metzer: Yes, but they’ve, they have removed quite a bit to this point. They’re just not quite
there yet.
Sacchet: Any other questions? One more question. In the letter from the applicant, you make a
point that in fall of 2002, which is not that long ago, they did the addition of the garage and they
referred to a young man with blond hair that, according to the letter more than once, more than
one occasion stated the setback was 5 feet. Now we’re not to try to point finger at anybody. Do
we have any idea who the young man with the blond hair is?
Metzer: I wouldn’t. I wasn’t here in 2002. I don’t know if Bob would have any idea.
Sacchet: But I have a hard time understanding how somebody at City Hall would not be clear
about side yard setbacks. That’s basically what I’m getting at.
Metzer: And we don’t know who it would have been.
Sacchet: Yeah.
McDonald: Can I ask a follow up to that? In the older neighborhoods in Chanhassen at one
time, have the setbacks always been what it currently is or was it at one time.
Metzer: Well the home was built in 1969. I believe the first, real enforced zoning ordinance was
72.
Sacchet: It was kind of a PUD at the time or it didn’t even exist then?
Generous: It was under village zoning.
Sacchet: Under village zoning, okay.
McDonald: Could it have been 5 feet at that time?
Generous: I haven’t found anything. The only ordinance that I know that has that is up in
Lundgren development in Near Mountain where they alternated it on some houses.
Sacchet: Yeah, but he was a young man with blond hair.
McDonald: It wasn’t me.
Sacchet: It’s not necessarily that he would be familiar with those historic type of setbacks even
if they were at one point and he was a young man.
Metzer: And the point is, any new addition because it’s now zoned RSF.
Sacchet: Right, would be by the current zoning.
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Planning Commission – November 1, 2005
Metzer: Needs to meet current zoning standards.
Sacchet: Alright, well we leave that a mystery then. Any other questions from staff? If not I’d
like to ask, do we have an applicant? If you want to come forward and you may want to add to
what staff presented. Yes, if you want to come to the podium and get this microphone pointing
towards you. State your name and address for the record please and do you have anything to add
or tell us about, please do.
Cindy Koenig: Okay, Cindy Koenig, 8005 Cheyenne Avenue. No, the letter pretty much says
what happened. My husband at one point, the people who laid the block were going to get one
of the permits. They didn’t do it. He was in a hurry. He just didn’t do it so now we’re trying to
make amends for it.
Sacchet: Yeah, and you solved that problem with acquiring a little bit of land on both sides, so
that’s not really an issue anymore at this point. The only issue we have is the hard cover.
Cindy Koenig: Yes.
Sacchet: Okay. Do you have questions of the applicant? I wondered I mean how do you feel
about this? I mean in order to be compliant you would have to get rid, pretty much of the
walkway around your garage and most of the patio in the back. I mean you don’t have anything
to say about that?
Cindy Koenig: Well, we have already gotten rid of a side driveway.
Sacchet: Right, we got the pictures of that.
Cindy Koenig: Yeah. The patio has been there since 19 I think 84 or something like that. I
don’t know what to say. I understand the compliance issue. I understand all of that, but.
Sacchet: It’s been there a long time. I understand.
McDonald: Excuse me, is the patio a slab or is it?
Cindy Koenig: Yeah.
McDonald: Okay, it is a slab.
Cindy Koenig: Yeah.
McDonald: Do you know about how thick it is?
Cindy Koenig: I don’t. We didn’t lay it. Somebody else did.
McDonald: How about the sidewalk? Is it, was it all laid at the same time then?
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Planning Commission – November 1, 2005
Cindy Koenig: The sidewalk was laid after the garage was built. And I’m not sure how thick
that is either.
McDonald: Okay, that’s all the questions I have.
Sacchet: Thank you very much.
Cindy Koenig: Okay, thank you.
Sacchet: Now this is a public hearing so I’d like to invite anybody else who wants to comment
about this from our audience to come forward. If you have something to add, please do so. State
your name and address for the record please.
Debbie Lloyd: Debbie Lloyd, 7302 Laredo Drive. Just reading through this today I have a
question about the administrative movement of the other lots. Will the lot 2 really be able to
come down by 8% so their hard surface coverage is 25% and administratively does that make
them a non-conforming lot by giving up square footage?
Sacchet: Can you address that Josh?
Metzer: The driveway was beginning to be removed about 2 weeks before the administrative
subdivision was even received by the city, which has been sent to the city today. To the Carver
County I should say, the administrative subdivision so that, the removal of that driveway on Lot
2 I believe it was, brings them down to 23. some odd percent.
Sacchet: So they’re alright basically.
Metzer: Yes.
Debbie Lloyd: So what kind of surface will they replace their driveway with?
Metzer: They’re sodding it.
Debbie Lloyd: They’re sodding a driveway?
Sacchet: Not the whole thing.
Metzer: It’s the side that pulls around to the side of the garage.
Debbie Lloyd: Oh, and that was 8%?
Metzer: .8%.
Debbie Lloyd: .8%.
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Planning Commission – November 1, 2005
Metzer: It’s more than .8%.
Debbie Lloyd: Okay, and then there’s one other lot that isn’t mentioned at all in the report that
also conveyed land and is that in compliance with code?
Metzer: Which one?
Sacchet: You’re talking about Lot 4, the one on the other side?
Debbie Lloyd: Yeah, the one on the other side. There’s no mention of it in the report as far as
compliance.
Sacchet: The building is smaller and the lot is good size, yeah.
Metzer: We’ve got the number here, just bear with me.
Debbie Lloyd: It’s a hard one. Those were my questions, but it seems that there is a way to
bring it in compliance and as hard as it can be.
Metzer: The lot to the east is 20.1%. So it’d be selling the land.
Sacchet: After giving up that sliver of land, okay. So we’re fine with those. Thanks for
checking.
Debbie Lloyd: Thank you.
Sacchet: Anybody else wants to address this item? Seeing nobody getting up, I close the public
hearing and bring it back to the commission for comments, discussion. Whenever you’re ready.
Keefe: I have a question.
Sacchet: Go ahead.
Keefe: And really to my fellow commissioners. You know this was a non-conforming lot and
so it’s underneath the 15,000 square foot requirement in the RSF district, right. So I don’t know
how many are out there that are like this, and maybe they are out there and I know we kind of
deal with them as they come in and we run across them, but what, what impact do we have in
terms of, or what responsibility do we have to correct a situation which is non-conforming sort of
to begin with and now the lot size has been put in at 15,000 square feet or we’re saying now has
got to be this amount of square footage for hard surface coverage when prior to the 15,000
square foot, which I presume this was built ahead of that, maybe that requirement wasn’t there.
Metzer: Right, yeah. This was before.
Keefe: So we’ve got a change in the requirements…
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Planning Commission – November 1, 2005
Sacchet: What you’re asking is how can you apply rules that don’t apply?
Keefe: Well yeah.
Sacchet: What you’re asking is how can you apply rules that don’t apply?
Keefe: Yeah well you probably, the rule has been put in place after the property was built and
now we’re asking.
Papke: But those rules were in force at the time the two additions were added.
Sacchet: Right.
Papke: And if a permit had been pulled for the two additions, the drawing would have shown the
non-conformance at that point. So I agree that if there was a grandfathering issue, that would
have been exposed at the time the permits would have been pulled.
Keefe: So to kind of be, kind of follow through to sort of enforce this then, what we would say
is that had they pulled the permits it would have.
Papke: They would have been fine.
Keefe: Right, they would have been fine in this because they would, well they would have had
to correct it at that point…
Papke: …right, right. But there wouldn’t have been an unknown non-conformance.
Keefe: Right.
Sacchet: Deborah, did you want to add something?
Zorn: I was just going to add to that, the patio was constructed in ’84. The four season in ’97.
The garage in ’02 along with the additional sidewalk. It seems as though that garage permit
would have prevented additional coverage and would have caught that variance at that time.
Keefe: And potentially that garage would not have been built.
Zorn: And/or the sidewalks, or there would have been choices, decisions at that time.
McDonald: I guess the only comment I’ve got, you know we’ve been through a lot of these and
the problem before has always been brought before us was that there was a contractor involved
who was supposed to pull the permits. Never pulled the permits and it wasn’t until later on that
we find out that we’ve got a non-compliance. In this particular case permits should have been
pulled. If you do any kind of addition onto a house, that’s a permit. Pure and simple, so I look at
this as kind of a self-imposed problem. And based upon that, even if it’s a non-conforming lot at
that point the 25% would have come into play. You could have asked for a variance at that
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Planning Commission – November 1, 2005
point, if we wanted to do something with the lot but now, I’m flat out just don’t have a lot of
sympathy. I don’t see where a grandfather issue exists. You know we’ve ruled fairly
consistently on these with everyone else that’s come in. This fits into the same category with the
extra caveat that again a building permit should have been pulled by the owner who did all the
work, so it doesn’t even rise to the level to me of what the other non-conforming’s have been.
Sacchet: Any more comments on this end? Not really. I’m struggling personally a little bit with
this one. I mean on one hand, according to the letter from the applicant they did to some extent
work with city hall. It says when they added the garage they took the plans to city hall, planning
and engineering department, and it was okayed by a young, by this famous young man with
blond hair.
Papke: Of course that’s their recollection of the situation.
Sacchet: Right.
McDonald: And that only deals with the 5 foot setback. That doesn’t deal with.
Sacchet: Impervious.
McDonald: That’s right, and the 5 foot isn’t even an issue here because that’s been taken care
of. Now it’s the 25% and yes, even if you went to the city Planning Commission and you talked
about you know, we don’t know the context of well if I put it here, you know what’s the setback
off my property line. You know and it may have answered the question so.
Keefe: Just one other question. I mean this is sort of selective enforcement of a rule. You know
I mean are we comfortable that within that area where there are a lot of non-conforming lots that
everybody is in compliance or are we just selectively enforcing this, they sort of ad hoc come in?
Or are we concerned about that? Maybe we’re not concerned about that.
McDonald: Well we haven’t been, as they come before us, we’ve been pretty consistent on what
we’ve done. We’ve asked staff in the last meeting to do something about these non-compliance
issues that suddenly pop up. That there’s got to be something else in the process besides just
depending upon permits or something. You know a contractor pulling a permit and then they
don’t. So that we can head off some of these injuries to property owners that are caused by
contractors who don’t follow the rules, so we’ve requested that. We are trying to deal with this,
and I know City Council is also, how you deal with an issue such as this to try to head it off
before you’re now going in and asking a homeowner to bear the cost of tearing something out.
So we’re trying not to do selective enforcement. We are trying to put something in place so that
everybody in the city is aware of these hard surface areas and what’s required there.
Keefe: And I think I understand the purpose, you know I mean in terms of the 25%. The
concern I have is in regards to let’s take an area like this is this neighborhood, where this home
resides and is there a way to kind of go on a neighborhood basis and say, alright we’re going to
do a survey of hard surface coverage in this area and we’re going to serve notice to the
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Planning Commission – November 1, 2005
neighborhood so that it…and I don’t know how that, if that’s possible to do or whether that’s the
right thing to do but just to be even handed from a sort of selective.
McDonald: We’re only talking about a percentage. I mean 25% of whatever you lot size is, I
mean that’s the coverage. If what you’re now talking about is 25%’s too little in one
neighborhood, then we need to look at readjusting that figure possibly.
Keefe: That’s not what I’m saying. What I’m saying is, within that neighborhood on a lot by lot
basis, which you know are they all in conformance or not. So in other words, this particular one
came before us.
Papke: I’m not sure, are you suggesting some kind of witch hunt to go out and look for non-
conforming lots? I mean I can’t imagine we would, you know the city would do something like
that. Every time one of these comes up we deal with them on an individual basis. And just
because there are non-conforming lots in the neighborhood doesn’t mean we should abandon
enforcement of all variances. I’m not following where you’re going with this at all.
Sacchet: He wonders whether we’re fair in the neighborhood.
Larson: What if we were to average everybody? Is that kind of what you’re grabbing at?
Keefe: No, I mean is everybody in that neighborhood that has a non-conforming lot, if they all
have non-conforming lots, are they all in conformance with the 25% hard coverage.
Sacchet: Yeah, and we don’t know. We don’t have a way to know.
Larson: What if somebody who built back then is above the 25% per se? Just throwing an
example out there.
Sacchet: Well, and that’s a little bit why I feel torn. I mean there’s actually also the mitigating
factor if you want to look at it as mitigating factor, I think the report somewhere says it’s, with
what they’ve removed they’re actually slightly below what they could have impervious if it was
a 15,000 foot lot, but ultimately I mean if you look at our standard rules that we have to look at,
and it’s important for you to understand, we have a set of 1, 2, 3, 4, 5, 5 or 6 items that as
Planning Commission we are, by ordinance, by our code we’re required to look at. In order to
make a recommendation, or possibly a decision. And the first one is it a hardship? And a
hardship is not a fluffy thing. It’s defined in the code. Hardship is if you cannot make a use
that’s on the property and they’re surrounding 500 feet, which in this case is to have a single
family house with a 2 car garage, which you do have. So by that definition you don’t pass that
one. You do not have a hardship by that definition. Second point, is it applicable to other
properties? Obviously it’s very applicable because that’s what we’ve just been struggling with.
That, whether it’s fair or it doesn’t apply, it definitely applies across the board. If we try by what
Dan was trying to do, and he bumped a little bit into a concrete wall with it, if we wanted try to
be fair within the context of the neighborhood, that really doesn’t quite fly either. Then we turn
into policing something that we don’t want to go police either. So it doesn’t fly, so they don’t
pass that hurdle. Does it increase the value? Well you didn’t do it for that purpose so that’s kind
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Planning Commission – November 1, 2005
of in the bubble. Is it self created hardship? Now we could argue over that because you tried to
be compliant and all that. Ultimately the fact that you didn’t really pull a formal permit we could
say it’s self created, if you want to be real objectively and that’s kind of harsh but the reality is
such, right? Then is it detrimental to the public welfare or injurious to other land? In generally
speaking with the impervious, if you’re above the impervious, we can, and that’s why we have
this impervious rule because if you have too much impervious you contribute to the runoff. You
contribute to what ultimately can be injurious to that environment. To other properties around so
there you don’t pass either. And the last point is, does it impair adequate supply of light and air?
Obviously it doesn’t so there you come out well. But if we pile this all on a balance, I mean if
we just follow the steps that are given to us as a commission, as our task, and that’s also where
staff was coming from saying, well looking at this from what our rules that are given to us, we, I
feel we are compelled to deny it. However, I do want to point out that if we end up denying it or
not, if we do end up denying it, that it can be brought in front of City Council and City Council
does have more leeway. It’s their role. They’re not bound as much as we are bound by those
criteria. It’s not that we are necessarily bound totally by it. We have a little bit of leeway, but
this goes a little, in my opinion beyond what a little leeway would be. I mean we’re trying to be
sensitive and we understand your predicament here certainly. We’d like to help you with it.
However with the framework of the code of the city I think that we would have to send you to
City Council to take that step, okay. That’s my comment.
Undestad: Can I add one thing?
Sacchet: Please.
Undestad: You know seeing what’s been done on here, I just have to say that you know the
variances and some of the self inflicted hardships we’ve seen, you guys have done a great job
going out and buying more land on each side you know and trying to get everything back down
to where everything’s within but you’re just right over our heads here I guess.
Sacchet: Taking off that piece of driveway, I mean you’ve shown tremendous effort and
willingness to correct it and from that angle I wish we could be more amenable to your request.
That’s partially what I said when I feel like I’m a little torn about this certainly. Any other
comments? If not, yes Debbie.
Larson: Well Josh had said that on the one side, just going into the lots that they purchased land
from, they’re under quite a bit on one side for sure. I mean is there any way that I know that it’s
lot by lot but averaging those 3?
Metzer: No, we can’t do that.
Larson: Or the neighborhood you know like we were saying. What if you were to look at the
entire area? How many are over? How many are under?
Sacchet: No, that’d be unmanageable Debbie. That’d be a nightmare.
Larson: Not that you would mange it but to, just to you know.
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Planning Commission – November 1, 2005
Sacchet: Right, right. It’s a good idea but very difficult to apply.
Papke: That’s come up on some of these previous cases where there were some larger lots next
door. Then you also run the risk if somebody subdivides that large lot, now you’ve got issues.
Or the neighbor next door adds some more hard coverage. There’s nothing to prevent them at
that point from going over the edge.
Sacchet: Alright, any other comments? If not I’d like a motion.
Zorn: I’d like to motion that the Planning Commission denies Variance 05-34 for 6.88% hard
coverage, hard surface coverage variance from the maximum 25% hard surface coverage
restriction for a garage addition and a four season porch on a lot zoned single family residential
based upon the findings in the staff report and the following 1 and 2. As well as the Planning
Commission orders the property owner to remove sufficient impervious surface to comply with
ordinance requirements.
Sacchet: Yes, the percentage right? The correct percentage is not 6.8. The new one is how
much?
Zorn: Oh I’m sorry. 4.06.
Sacchet: 4.06. Alright, we have a motion. Do we have a second?
McDonald: I’ll second.
Zorn moved, McDonald seconded that the Planning Commission denies Variance #05-34
for a 4.06% hard surface coverage variance from the maximum 25% hard surface
coverage restriction for a garage addition and a four season porch 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.
The Planning Commission orders the property owner to:
1. Remove sufficient impervious surface to comply with ordinance requirements.
All voted in favor, except Larson who opposed, and the motion carried with a vote of 6 to 1.
Sacchet: I’d encourage you to bring this to the attention of the City Council and see what they
can do for you. Good luck with it. So that brings us to the minutes.
APPROVAL OF MINUTES: Commissioner McDonald noted the verbatim and summary
minutes of the Planning Commission meeting dated October 18, 2005 as presented.
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Planning Commission – November 1, 2005
Chairman Sacchet adjourned the meeting at 7:30 p.m..
Submitted by Kate Aanenson
Community Development Director
Prepared by Nann Opheim
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