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PC Minutes 11-1-05 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 Debbie Lloyd Cindy Koenig 7305 Laredo Drive 7302 Laredo Drive 8005 Cheyenne Avenue PUBLIC HEARING: REQUEST FOR HARD SURFACE COVERAGE VARIANCE ON PROPERTY LOCATED AT 8005 CHEYENNE A VENUE. 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? Papke: Yeah. Could you explain a little bit about the September 4th 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. 2 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? 3 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. 4 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? 5 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%. 6 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 ofland, 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... 7 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 8 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! 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 9 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. Ifwhat 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. Ifwe 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 10 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 ofleeway, 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. 11 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. 12 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 13