CC Staff Report 11-14-05MEMORANDUM
TO
: Todd Gerhardt, City Manager
FROM
: Josh Metzer, Planner I
DATE November 14
: September 26, 2005
SUBJ
: Troy & Virginia Kakacek – Planning Case #05-18
EXECUTIVE SUMMARY
This item was appealed to City Council by the applicant. This is a request for a
1.77
4.23% hard surface coverage variance from the maximum 25% hard surface
coverage restriction for the addition of a patio and retaining wall on property
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located in the Single-Family Residential District at 380 West 86 Street. These
Since this request was first presented to
improvements have already been built.
the Planning Commission and City Council, staff noticed some inaccurate data
on the as-built survey. The portion of the driveway that lies within the public
right-of-way was included in the hard cover calculations of the applicants’
property. Furthermore, the applicant has removed an additional 90 square feet
from the patio in the rear yard. This report has been revised to reflect accurate
calculations.
ACTION REQUIRED
City Council approval requires a majority of City Council present.
PLANNING COMMISSION/CITY COUNCIL SUMMARY
The Planning Commission held a public hearing on July 19, 2005, to review the
proposed development. The Planning Commission voted 6 to 0 to deny the request.
That decision was appealed by the applicant.
The City Council held a public hearing on September 12, 2005, to review the
request.Council tabled the application in order to give staff and the applicant
time to explore alternative solutions to resolving the hard cover issue.
RECOMMENDATION
Staff recommends adoption of the motion as specified on page 7 of the staff report
dated November 14, 2005.
ATTACHMENTS
1.Planning Commission Staff Report dated July 19, 2005.
2.Planning Commission Minutes dated July 19, 2005.
3.City Council Minutes dated September 12, 2005.
g:\plan\2005 planning cases\05-18 kakacek variance\executive summary 10-10-05 cc.doc
PC DATE:
July 19, 2005
CC DATE:November 142005
October 24 ,
CITY OF CHANHASSEN
REVIEW DEADLINE:
November 21, 2005
CASE #:
05-18
BY:
JM, JS, DR
STAFF REPORT
PROPOSAL:1.18
Request for 4.23 % hard surface coverage variance from the maximum 25% hard
surface coverage restriction for the addition of a patio and retaining wall on property
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located in the Single Family Residential District at 380 West 86 Street. These
improvements have already been built.
nd
LOCATION:
Lot 4, Block 1, Rice Lake Manor 2 Addition
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380 West 86 Street
Chanhassen, MN 55317
APPLICANT:
Troy & Virginia Kakacek
th
380 West 86 Street
Chanhassen, MN 55317
PRESENT ZONING:
Single Family Residential (RSF)
2020 LAND USE PLAN:
Residential – Low Density (Net Density Range 1.2 – 4u/Acre)
ACREAGE:
0.35 acre
DENSITY:
N/A
SITE DATA
SUMMARY OF REQUEST:1.18
The applicant is requesting a 4.23 % hard surface coverage variance
from the maximum 25% hard surface coverage restriction for the addition of a patio and retaining wall.
approval
These improvements have already been built.Staff is recommending denial of this request.
Notice of this public hearing has been mailed to all property owners within 500 feet.
LEVEL OF CITY DISCRETION IN DECISION-MAKING:
The City’s discretion in approving or denying a variance is limited to whether or not the proposed
project meets the standards in the Zoning Ordinance for a variance. The City has a relatively high
level of discretion with a variance because the applicant is seeking a deviation from established
standards. This is a quasi-judicial decision.
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Planning Case #05-18
Kakacek Variance
November 14
July 19September 12 , 2005
Page 2
PLANNING COMMISSION UPDATE
The Chanhassen Planning Commission held a public hearing on July 19, 2005, to review the
proposed variance. The Planning Commission voted 6 to 0 to deny the request. That decision was
appealed by the applicant, and thus, has come before the City Council.The summary and verbatim
minutes are Attachment 8 of this packet. Since this request was first presented to the Planning
Commission and City Council staff noticed some inaccurate data on the as-built survey. This report
has been revised to reflect accurate calculations.
SUMMARY OF PROPOSAL
th
The subject property is located southeast of Great Plains Boulevard on West 86 Street and is zoned
1.18
Single Family Residential (RSF). The applicant is requesting a 4.23 % (which represents 642.24
178.63
square feet of site coverage) hard surface coverage variance from the maximum 25% hard surface
coverage restriction for the addition of a patio and retaining wall. These structures have already been built
26.18
bringing the existing hard surface coverage to 29.23 %.
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APPLICABLE REGUATIONS
Sec. 20-91. Zoning compliance review.
(a) Zoning compliance review shall be required for the construction of structures which do not require
building permits to determine compliance with zoning requirements such as setback, site coverage,
structure height, etc.
Planning Case #05-18
Kakacek Variance
November 14
July 19September 12 , 2005
Page 3
(b) Any zoning compliance review application that fails to meet zoning ordinance requirements shall
be denied by the community development director.
Sec. 20-615. Lot requirements and setbacks.
25 percent
(5) The maximum lot coverage for all structures and paved surfaces is .
Impervious surface means any material that substantially reduces or prevents the infiltration of storm
water. It shall include, but not be limited to, gravel driveways, parking area, buildings and structures.
BACKGROUND
nd
The subject property was platted as part of Rice Lake Manor 2 Addition which was recorded on October
22, 2003. The house was built in 2004. The patio, retaining wall and sidewalks were not shown on the
plans for the building permit application. The subject property is located in the Single Family Residential
(RSF) district and has an area of 15,180 square feet. In the RSF district 25% is the maximum permitted
26.18
impervious surface coverage for a lot. The applicant currently has a hard cover of 29.23 %.
The hard cover issue came to the attention of the City in mid-November when the as-built survey from
Otto Associates was submitted. It appeared the lot could be over on the maximum hard cover
percentage. The City requested that hard cover calculation details be shown on the as-built survey. The
City received the revised survey on December 2, 2004 showing the existing hard cover was 31.8%.
Shortly after, staff informed the applicant they must bring the lot into compliance with hard cover
restrictions or apply for a variance.
This application was originally scheduled to appear before the Planning Commission on June 7, 2005.
The original proposal included the concrete and gravel sidewalks as part of the variance request. The
applicant requested the application be tabled in order to revise the variance proposal. The Kakacek’s
have since removed the concrete and gravel sidewalks and have replaced them with landscaping rock
and mulch. In doing so the applicant has reduced the existing hardcover by 248 square feet, or 1.63%.
This put the hard cover request at 30.86%. Therefore, a correction to the survey hard cover calculations
needs to be made. The as-built survey includes the sidewalks as part of the hard cover calculation. The
City does not consider landscape rock and mulch, with a fabric liner, to be impervious surface.
Therefore, the sidewalk portion of the hard cover calculations shall be ignored for the purposes of this
variance request.
Planning Case #05-18
Kakacek Variance
November 14
July 19September 12 , 2005
Page 4
Before – Gravel Walkway After – Mulch Walkway
Before – Concrete Sidewalk After – Rock Walkway
Revised as-built survey calculation:
House = 2,537.24 sq. ft.
Patio = 519.00 sq. ft.
Driveway = 1,369.00 sq. ft.
Retaining Wall= 12.00 sq. ft.
TOTAL4,437.24 sq. ft. 29.23%
=
In addition to the corrections discussed above, staff recently noticed that the surveyor had
incorrectly included that portion of the driveway which lies in the public right-of-way (not on the
applicants’ property) in the hard cover calculation. The area of driveway located on the
applicants’ property is actually 995.39 square feet rather than 1,369 square feet as noted on the as-
built survey. This erroneously contributed 373.61 square feet, or 2.46% to the hard cover
calculations. The applicant has also removed 90 square feet from the patio in the rear yard.
Planning Case #05-18
Kakacek Variance
November 14
July 19September 12 , 2005
Page 5
Revised as-built survey calculation #2:
House = 2,537.24 sq. ft.
Patio = 429.00 sq. ft.
Driveway = 995.39 sq. ft.
Retaining Wall= 12.00 sq. ft.
TOTAL3,973.63 sq. ft. 26.18%
=
Adding to the discrepancies between the proposed building survey and the as-built survey are the
dimensions of the driveway. The driveway was built larger and with a different shape than that which
was proposed. The as-built survey shows that the home and driveway alone are at 25.8% (111.24 square
The area of the driveway on the building permit
feet over the maximum permitted hard cover).
survey totals 896 square feet. The area of the driveway located within the applicants’ property
lines was actually built at 995.39 as shown on the as-built survey.
In discussing the matter, the applicant informed staff that miscommunication had contributed to the
violation of impervious surface restrictions. According to the applicant, the plans which the City
approved were different from those the homeowner had in their possession. The applicant did meet with
staff, prior to construction of the home, to discuss landscaping options for the property. Staff informed
the applicant that any part of the property could be landscaped except in easements. In a meeting
between staff and the applicant, which took place after the issue of impervious surface came to the
attention of the City, it was revealed that the applicants’ interpretation of landscaping included patio
areas. Had staff been aware of this interpretation, the applicant would have been informed that hard
cover restrictions include concrete and paver patios.
ANALYSIS
The site is zoned Residential Single Family (RSF). The applicant has completed construction of the
patio in question. Chanhassen City Code does not require building permits for patios. However, such
structures do require a zoning compliance review. The City uses zoning compliance reviews to ensure
that structures, which do not require a building permit, still comply with zoning ordinances. Criteria of a
zoning compliance review include setbacks, hard surface coverage and structure height.
Patio Retaining Wall/Rock Sidewalk
Planning Case #05-18
Kakacek Variance
November 14
July 19September 12 , 2005
Page 6
There are alternatives the applicant could pursue to bring the property into compliance with City Code.
The applicant would need to remove 178.63 square feet of hard cover in order to comply with City
ordinance. This could be achieved through removal of patio area, driveway area or a combination
of removal from both.
Regarding the patio, the applicant could remove the patio pavers and replace
them with wooden decking with a pervious surface below. This would allow the applicant to continue to
enjoy their backyard while complying with ordinance requirements. In addition, in order to reach 25%,
the size of the driveway would have to be reduced by at least 111.24 square feet.
At the City Council meeting on September 12, 2005, the City Council tabled this item to provide
time for the applicant to work with staff to find alternatives for the resolution of the impervious
surface issues. One of the alternatives mentioned was the construction of an infiltration basin on
the Kakacek property. An infiltration basin (rain garden) is not recommended in this instance.
Chanhassen's soils are typically quite clayey and do not permit large amounts of infiltration to
occur. In addition, small, privately owned infiltration basins are often designed and/or
constructed improperly. As a result, they often require more maintenance than anticipated and
do not perform as well as property owners expect. For these reasons, staff does not recommend
infiltration as a condition, should the City Council recommend approval of the hardcover
variance.
While the applicant has expended money for the improvements, such expenditure does not justify the
granting of a variance. Approval of a variance is contingent upon proof that the literal enforcement of
the Chanhassen City Code would cause an undue hardship. Not having a reasonable use of the property
would constitute an undue hardship. Reasonable use is defined as the use made by a majority of
comparable property within 500 feet. Reasonable use of this property, a single-family home with a two-
car garage, already exists. Any use of the property beyond that discussed above is strictly ancillary to
the principal use. There are alternatives the property owner could pursue to receive the same utility, i.e.,
use of deck instead of patio. Based on these facts, staff must recommend denial of this request.
LANDSCAPING
nd
The landscaping requirements for Rice Lake Manor 2 Addition included a total of 12 trees to be
planted as part of subdivision approval. Each lot was required to have two trees of the aforementioned
th
trees planted in the front yard. Lot 4, Block 1, 380 West 86 Street is required to have a total of four
trees planted as part of the subdivision conditions of approval. A recent inspection of the property found
only one tree, a crabapple, planted in the front yard. Two existing trees remain in the rear yard. This lot
requires three more trees to be planted in order to meet subdivision requirements.
FINDINGS
The Board of Adjustments and Appeals shall not recommend and the City Council shall not grant a
variance unless they find the following facts:
a. That the literal enforcement of this chapter would cause an undue hardship. Undue hardship means
that the property cannot be put to reasonable use because of its size, physical surroundings, shape or
topography. Reasonable use includes a use made by a majority of comparable property within 500
feet of it. The intent of this provision is not to allow a proliferation of variances, but to recognize
Planning Case #05-18
Kakacek Variance
November 14
July 19September 12 , 2005
Page 7
that there are pre-existing standards in this neighborhood. Variances that blend with these pre-
existing standards without departing downward from them meet these criteria.
Finding:
The literal enforcement of this chapter does not cause an undue hardship.
b. The conditions upon which a petition for a variance is based are not applicable, generally, to other
property within the same zoning classification.
Finding:
The conditions upon which this variance is based are applicable to all properties that lie
within the Single Family Residential District.
c. The purpose of the variation is not based upon a desire to increase the value or income potential of
the parcel of land.
Finding:
The improvements increase the value of the property.
d. The alleged difficulty or hardship is not a self-created hardship.
Finding:
Construction of the patio and retaining wall were completed before a zoning compliance
review was performed; therefore, this is a self-created hardship.
e. The granting of the variance will not be detrimental to the public welfare or injurious to other land
or improvements in the neighborhood in which the parcel is located.
Finding:
The granting of a variance may be detrimental to the public welfare or injurious to other
land or improvements in the neighborhood in which the parcel is located due to the increase in
runoff from this property.
f. The proposed variation will not impair an adequate supply of light and air to adjacent property or
substantially increase the congestion of the public streets or increase the danger of fire or endanger
the public safety or substantially diminish or impair property values within the neighborhood.
Finding:
The proposed variation will not impair an adequate supply of light and air to adjacent
property or substantially increase the congestion of the public streets.
RECOMMENDATION
Planning Commission City Council
Staffrecommends that the Planning Commissionadopt the
following motion:
City Council 1.18
“The Planning Commission denies Variance #05-18 for a 4.23% hard surface coverage
variance from the maximum 25% hard surface coverage restriction for the addition of a patio and retaining
wall on a lot zoned Single-Family Residential (RSF) based upon the findings in the staff report and the
following:
1. The applicant has not demonstrated a hardship.
Planning Case #05-18
Kakacek Variance
November 14
July 19September 12 , 2005
Page 8
2. The property owner has reasonable use of the property.
City Council
The Planning Commission orders the property owner to:
1. Remove sufficient impervious surface to comply with ordinance requirements.
2. Plant three trees to meet subdivision requirements.”
City Council
Should the Planning Commission choose to approve the variance, staff recommends that
City Council
the Planning Commission adopt the following motion:
Staff recommends City Council adopt the following motion:
City Council 1.18
“The Planning Commission approves Variance #05-18 for a 4.23% hard surface
coverage variance from the maximum 25% hard surface coverage restriction for the addition of a patio
and retaining wall on a lot zoned Single Family Residential (RSF) with the following conditions:
1. The applicant must plant three trees to meet subdivision requirements.”
ATTACHMENTS
1. Findings of Fact.
2. Development Review Application.
3. Letter from Troy & Virginia Kakacek stamped “Received May 6, 2005”.
4. Letter from Kurt & Lynne Miller dated May 4, 2005.
5. Public Hearing Notice and Affidavit of Mailing List.
6. Building Permit Survey.
7. As-Built Survey.
g:\plan\2005 planning cases\05-18 kakacek variance\staff report.doc
CITY OF CHANHASSEN
CARVER AND HENNEPIN COUNTIES, MINNESOTA
FINDINGS OF FACT
AND ACTION
IN RE: Application of Troy & Virginia Kakacek for 4.23% hard surface coverage variance
from the maximum 25% hard surface coverage restriction for the addition of a patio and
retaining wa1l- Planning Case No. 05-18.
On July 19,2005, the Chanhassen Planning Commission met at its regularly scheduled
meeting to consider the Application of Troy & Virginia Kakacek for a 4.23% hard surface
coverage variance from the maximum 25% hard surface coverage restriction for the addition of a
patio and retainmg wa11 on property located in the Single Family Residentia1 District at 380 West
86th Street. The Planning Commission conducted a public hearing on the proposed variance that
was preceded by published and mailed notice. The Planning Commission heard testimony from
a11 interested persons wishing to speak and now makes the following:
FINDINGS OF FACT
1. The property is currently zoned Single Family Residentia1 (RSF).
2. The property is guided by the Land Use Plan for Residential - Low Density (Net
Density Range 1.2 - 4u1 Acre).
3. The lega1 description of the property is: Lot 4, Block 1, Rice Lake Manor 2nd
Addition
4. The Board of Adjustments and Appeals sha11 not recommend and the City Council sha11
not grant a variance unless they find the following facts:
a. Literal enforcement of this chapter would not cause undue hardship.
b. The conditions upon which this variance is based are applicable, genera1ly, to other
properties in the Single Family Residentia1 district.
c. The improvements increase the va1ue of the property.
d. The a1leged difficulty or hardship is a self-created hardship.
e. The granting of the variance may be detrimenta1 to the public welfare or injurious
to other land or improvements in the neighborhood in which the parcel of land is
located.
f. The proposed variation will not impair an adequate supply of light and air to
adjacent property or substantially increase the congestion of the public streets or
increase the danger of fire or endanger the public safety or substantially diminish or
impair property values within the neighborhood.
5. The planning report #05-18 Variance dated July 19, 2005, prepared by Josh Metzer, et
aI, is incorporated herein.
ACTION
The Chanhassen Planning Commission denies the variance from the impervious surface
restriction for the addition of a patio and retaining wall.
ADOPTED by the Chanhassen Planning Commission on this 19th day of July, 2005.
CHANHASSEN PLANNING COMMISSION
BY:
Planning Commission Chairperson
g:\pIan\2005 planning cases\05-18 kakacek variance\findings offaCldoc
Planning Case No.
os- f 8
CITY OF CHANHASSEN
7700 Market Boulevard - P.O. Box 147
Chanhassen, MN 55317 - (952) 227-1100
DEVELOPMENT REVIEW APPLICATION
REceIVED
MAY 06 2005
CITY OF CHANHASSEN
PLEASE PRINT.
Applicant NamE3and'Address: Owner Name and Address:
UOy Mvt>' Vi i!'iriNII~Kfli(IJ-L c~ 'S <l..rn ~. tt-s (A.f>~~
310 W. ~l/~S-I-.
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Contact: V IRe IN I A ,\ G-~NG'cR. I' Contact:
Phone:j52-q~6-20JS- Fax: QS2-QQ3-;;.Ll-=1S Phone: Fax:
Email: _lL.-o..lLCk-e v @ -{X^.r \c-n '\ to lIet. e..o h-, Email:
Comprehensive Plan Amendment
Temporary Sales Permit
Conditional Use Permit
Vacation of Right~of-Way/Easements
Interim Use Permit ,
. (;>( Variance
Non-conforming Use Permit
Wetland Alteration Permit
Planned Unit Development*
Zoning Appeal
Rezoning
Zoning Ordinance Amendment
. Sign Permits
Sign Plan Review
Notification Sign
Site Plan Review*
X. Escrow for Filing Fees/Attomey Cost**
- $50 CUP/SPRN ACNAR/W AP/Metes & Bounds
- $400 Minor SUB
TOTAL FEE$'p-'s'?J ~<30
Subdivision*
An additional fee of $3.00 per address within the public hearing notification area will be invoiced to the applicant prior to
the public hearing.
* Twenty-six (26) full-size folded cpples of the plans must be submitted, Including an 8W' X 11" reduced copy tor
each plan sheet along with a dlaftal CODY In nFF-Group 4 (*.tlf) format.
** Escrow will be required for other applications through the development contract.
Building material samples must be submitted with site plan reviews.
. NOTE: When multiple applications are processed, the appropriate fee shall be charged for each application.
SCANNED
PROJECT NAME:".:1=> A-T\'C) t\~~b \ ,I ()f\J
LOCATlON:::S?O - t.J.J. <i?~'l-"- S+.
LEGAL DESCRIPTION:
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TOTAL ACREAGE: I 3'-/ O-.tr t.5
WETLANDS PRESENT: YES rL. NO
PRESENT ZONING: -Res l1:>el0TI A l J - S t N G-t. F flt-YY\\ L If
REQUESTED ZONING: I ,
PRESENT LAND USE DESIGNATION: ~e,> It:>e'f'l-rUlL r S (l0&LG" FArY\{ L Y
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REQUESTED LAND USE DESIGNATION:
REASON FOR REQUEST: To r<.e G. \..U;:- SI A- V Ai'?-\""-l\J e t 'To f\-Cco lit)
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This application must be completed in full and be typewritten or clearly printed and must be accompanied by all information
and plans required by applicable City Ordinance provisions. Before filing this application, you should confer with the
Planning Department to determine the specific ordinance and prOcedural requirements applicable to your application.
A determination of completeness of the application shall be made within 15 business days of application submittal. A written
notice of application deficiencies shall be mailed to the applicant within 15 business days of application.
This is to certify that I am making application for the described action by the City and that I am responsible for complying with
all City requirements with regard to this request. This application should be processed in my name and I am the party whom
the City should contact regarding any matter pertaining to this application. I have attached a copy of proof of ownership
(either copy of Owner's Duplicate Certificate of Title, Abstract of TItle or purchase agreement), or I am the authorized person
to make this application and the fee owner has also signed this application.
I will keep myself informed of the deadlines for submission of material and the progress of this application. I further
understand that additional fees may be charged for consulting fees, feasibility studies, etc. with an estimate prior to any
authorization to proceed with the study. The documents and information I have submitted are true and correct to the best of
my knowledge;
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,G:\pIan\forms\Development Review Application.DOC
Rev.310fi
To the City ofChanhassen- Planning Committee:
Troy and Virginia Kakacek variance request for 380 W. 86th 8t
Points on variance application:
7. Variance request - To allow existing patio to remain as an improvement to the
exterior of the home.
8. a. All homes in the immediate vicinity of our home have preexisting decks
- and patios. The back yard (patio area) would not be usable without
covering. The layout of the home requires some walkout consistent with
the homes around us.
b. The homes around us have had preexisting structures but were developed
on much larger lots.
c. The variation is for personal use and to make the area more presentable
and improved.
d. The development was as a result 9f several different miscommunications
despite multiple attempts to pre-empt any future problems prior to
placement. An original building plan was submitted with the patio on it
and tpe final building approval was changed without our knowledge.
After the house was built we waited to add this later for financial reasons
instead of doing it with the final home construction. We also sought the
advice of the city staff two times prior to starting any landscaping or
hardscaping projects. When we were notified of the problem after our
final survey we were shown what Chanhassen had officially approved and
realized it was different than the plans we had as our final building plan.
e. The variance will improve the neighborhOO<l, it is already in place, and
multiple neighbors have stopped and commented on how they think: the
things we have done greatly improved the property.
f. The improvements do not impose any danger, impair property value (an
increase was actually made), and will not infringe upon any neighbors
and! or ordinance. Our neighbors to: the north Kurt and Lynn Miller are
substantially below their hardscaping requirements and have included a
letter of support for our variance (see attached).
SCANNED
Kurt D. Miller
8590 Tigua Lane
Chanhassen" MN 55317
May 4, 2005
To: City ofChanhassen
From~ Kurt & Lynne Miller
8590 Tigua Lane
Chanhassen, MN
Subject: 380 West 86th Street
Chanhassen, MN.
Our backyard joins the backyard of Mr. & Mrs. Kakacek. The patio they
had installed last year compliments their backyard and adds to the
fimctionality of their home.
We do not object to this patio in anyway and believe it is a nice addition to
their home and yard. Our lot is connected along their entire rear property
line is one acre in size and affords an abundance of green space. It would
seem sensible to allow the Kakacek's to retain their patio.
/ti<l!
'CANNeD
CITY OF CHANHASSEN
AFFIDAVIT OF MAILING NOTICE
STATE OF MINNESOTA)
) ss.
COUNTYOFCARVER )
I, Karen J. Engelhardt, being first duly sworn, on oath deposes that she is and was on
Thursday, July 7, 2005, the duly qualified and acting Deputy Clerk of the City of Chanhassen,
Minnesota; that on said date she caused to be mailed a copy of the attached notice of Public
Hearing for Kakacek Variance - Planning Case No. 05-18 to the persons named on attached
Exhibit "A", by enclosing a copy of said notice in an envelope addressed to such owner, and
depositing the envelopes addressed to all such owners in the United States mail with postage
fully prepaid thereon; that the names and addresses of such owners were those appearing as such
by the records of the County Treasurer, Carver County, Minnesota, and by other appropriate
records.
Subscribed and sworn to before me
thiS~daYOf:Ju.\~ ,2005.
~~ \'N~'-I.kA-^'-=-
I
KIM 1: MEUWlSSEN
Notary Public-Minnesota
My CommIseIon ExpIree Jan 31, 2010
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sclalmer
s map is neither a legally recorded map nor a survey and is not intended to be used as one.
s map is a COIlllilation of records, information and data located in various clty, county, state and
era! oIIices and other sources regarding the 8I8a shown, and is to be used for reference
poses only. The City does nof warrant that the Geograpljc Information System (GIS) Data used
>repare this map are error free, and the City does no! represent that the GIS Data can be used
navigational, tracking or any other purpose reqUiring exacting measurement of distance or
lCtIon or preclsion in the depiction 01 geographic features. n errors or discrepancles 818 found
ase contact 952-227-1107. The precedng clsclalrner is provided pursuant to Minnesota
,Mes 9466.03, Subd. 21 (2000), and the user 01 this map acknowledges that the City shall not
liable for any damages, and elCpf9SSly waives all claims, and agrees to delend, indermity, and
d harmless the City from any and all claims brought by User, its ~oyees or agents, or third
ties which arise out 01 the use(s access or use of data provided.
ccNAME1 >>
ccNAME2>>
ccADD1 >>
ccADD2>>
ccCITY>> ccSTATE>> (cZIP>>
L,._... C.R. 11
1$Clalmer
lis map is neither a legally recorded map nor a survey and is no! intended to be used as one.
lis map is a COfI1lllation 01 records, information and data Iocatad in various city, county, Slate and
deraI oIIices and other sources regarding the 8I8a shown, and is to be used lor reference
Irposes only. The City does not warrant thet the Geograpljc InIormation System (GIS) Data used
prep8I8 this map 818 error free, and the City does not represent that the GIS Data can be used
r navigational, tracking or any other purpose requiring exacting measurement ofllstance or
rection or precision in the depiction of geographic features. n errors or discrepancles are found
ease contact 952-227-1107. The preceding clsclairner is provided pursuant to Minnesota
:aMes 9466.03, SuIld. 21 (2000), and the user of this map acknowledges that the City shaD not
~ Hable lor any damages, and e>cpressIy waives all claims, and agrees to defend. indermiIy, and
lld harmless the City from any and aD claims brought by User, its eqJIoyees or agents. or third
u1ies which arise out of the uws access or use 01 data provided.
<<Next Record>> ccNAME1>>
(cNAME2>>
<<ADD1 >>
<<ADD2>)
<<CITY>> <<STATE>> <<ZIP>>
Public Hearing Notification Area Map (500 feet)
Kakacek Variance
Planning Case No. 05-18
380 West 86th Street
City of Chanhassen
Lake Susan
Lake Riley
?ATRICIA A ADAMS
~29 RICE CT
::;HANHASSEN MN 55317
GEORGE J CARLYLE &
JANELLE VEILLEUX CARLYLE
6560 MISSION HILLS LN
CHANHASSEN MN 55317
JOHN D & MARY JO EICHLER
TRUSTEE OF TRUST
25628 CORDOVA LN
RIO VERDE AZ 85263
DANIEL T & KELLY A FASCHING
8550 MISSION HILLS LN
CHANHASSEN MN 55317
SUNITA GANGOPADHYAY &
SHUBHAGATGANGOPADHYAY
8571 MISSION HILLS LN
CHANHASSEN MN 55317
JAY K HALVORSON &
ELEN M HALVORSON
422 RICE CT
CHANHASSEN MN 55317
SUSAN M HEINEMANN
421 RICE CT
CHANHASSEN MN 55317
KATHLEEN M JOHANNES
430 MISSION HILLS WAY E
CHANHASSEN MN .55317
SARA LUCY KALEY
482 MISSION HILLS WAY E
CHANHASSEN MN 55317
KLlNGELHUTZ DEVELOPMENT CO
350 HWY 212 E
PO BOX 89
CHASKA MN 55318
SARAH K BERG
424 MONK CT
CHANHASSEN MN 55317
JAMES A & MARILYN L CRAWFORD
8581 MISSION HILLS LN
. CHANHASSEN MN 55317
MICHELLE J ERICKSON-CODY
442 MISSION HILLS WAY E
CHANHASSEN MN 55317
BEVERLY A FIEDLER
8521 TIGUA LN
CHANHASSEN MN 55317
MICHAEL A GRAY &
SARAH A NICKOLA Y
8510 TIGUA LN
CHANHASSEN MN 55317
ROBERT J & ARLENE T HART
474 MISSION HILLS WAY E
CHANHASSEN MN 55317
RICHARD K & THERESA A HESS
8561 MISSION HILLS LN
CHANHASSEN MN 55317
PAUL D JUAIRE
462 MISSION HILLS WAY E
CHANHASSEN MN 55317
JEAN M KAMRATH
434 MISSION HILLS WAY E
CHANHASSEN MN 55317
KLlNGELHUTZ DEVELOPMENT CO
350 HWY 212 E
PO BOX 89
CHASKA MN 55318
KAREN L BLENKER
405 RICE CT
CHANHASSEN MN 55317
BEVERLEY K DAVIS
466 MISSION HILLS WAY E
CHANHASSEN MN 55317
RONALD S & BARBRA T EWING
8570 MISSION HILLS LN
CHANHASSEN MN 55317
SCOTT E & SHANNON L FIEDLER
8511 MISSION HILLS LN
CHANHASSEN MN 55317
ROCHELLE R GREAVES TRUST
570 78TH ST W #2001
CHANHASSEN MN 55317
JOSEPH & GAYLE HAUTMAN
TRUSTEES OF TRUSTS
8551 TIGUA LN
CHANHASSEN MN 55317
BONNIE M HOGHAUG
425 RICE CT
CHANHASSEN MN 55317
TROY A & VIRGINIA L KAKACEK
380 86TH ST W
CHANHASSEN MN 55317
THOMAS D KARELS
416 MONK CT
CHANHASSEN MN 55317
NIKOLA Y V KRASNOKUTSKIY &
LIllY A KRASNOKUTSKIY
8564 POWERS PL
CHANHASSEN MN 55317
VY ACHESLA V KRASNOKUTSKIY &
NATAL YA P KRASNOKUTSKIY
4419 CINNAMON RDG CIR
EAGAN MN 55122
PAUL C LYONS
8571 TIGUA LN
CHANHASSEN MN 55317
NANCY JEAN MESSNER
478 MISSION HILLS WAY E
CHANHASSEN MN 55317
DAVID T & CORRINE A NAGEL
8550 TIGUA LN
CHANHASSEN MN 55317
RAYMOND C ORTMAN JR
JULIANNE E ORTMAN
8525 MISSION HILLS LN
CHANHASSEN MN 55317
BRENT W POPPENHAGEN &
KARl J BERG
8501 TIGUA LN
CHANHASSEN MN 55317
TIMOTHY T & TRACY A SALWEI
454 MISSION HILLS WAY E
CHANHASSEN MN 55317
STEVEN M & TRACY A SCHEID
451 MISSION HILLS CT
CHANHASSEN MN 55317
TANDEM PROPERTIES
7808 CREEKRIDGE CIR
#1:310
MINNEAPOLIS MN 55439
ARTURO F URRUTIA
408 MONK CT
CHANHASSEN MN 55317
KEVIN KUNZE
417 RICE CT
CHANHASSEN MN 55317
JOYCE I MANCINO
413 RICE CT
CHANHASSEN MN 55317
KURT D & LYNNE MILLER
8590 TIGUA LN
CHANHASSEN MN 55317
LARRY M & MARLENE R NASH
409 RICE CT
CHANHASSEN MN 55317
ERIC L PETERSON
KATHERINE M WELCH
8561 TIGUA LN
CHANHASSEN MN 55317
JENNIFER RENKL Y
446 MISSION HILLS WAY E
CHANHASSEN MN 55317
GORDON A & BRENDA M
SCHAEFFER
8591 TIGUA LN
CHANHASSEN MN 55317
JAMES M SCOTT
PO BOX 544
CHANHASSEN MN 55317
RACHELLE L TIMLIN
404 MONK CT
CHANHASSEN MN 55317
AMANDA C WINBLAD-VONWALTER
438 MISSION HILLS WAY E
CHANHASSEN MN 55317
JUDITH A LEHMAN
412 MONK CT
CHANHASSEN MN 55317
LUANN M MARKGRAF
401 RICE CT
CHANHASSEN MN 55317
JULIE S MONROE
418 RICE CT
CHANHASSEN MN 55317
DAVID & SHARON NICKOLA Y
8500 TIGUA LN
CHANHASSEN MN 55317
MARK D PILATE
470 MISSION HILLS WAY E
#115
CHANHASSEN MN 55317
BRIAN M & DAWN M RODELL RILEY
8580 MISSION HILLS LN
CHANHASSEN MN 55317
CARMEN M SCHALLOW
428 MONK CT
CHANHASSEN MN 55317
LAWRENCE D & NANCY E STEIN
8541 MISSION HILLS LN
CHANHASSEN MN 55317
SHANNA M UNKE
420 MONK CT
CHANHASSEN MN 55317
BARBARA E WOLTER
400 MONK CT
CHANHASSEN MN 55317
OS-IS
CHANHASSEN PLANNING COMMISSION
REGULAR MEETING
JULY 19, 2005
Acting Chair McDonald called the meeting to order at 7:00 p.m.
MEMBERS PRESENT: Jerry McDonald, Kurt Papke, Deborah Zorn, Dan Keefe, Debbie
Larson, and Mark Vndestad
MEMBERS ABSENT: Vli Sacchet
STAFF PRESENT: Kate Aanenson, Community Development Director; Bob Generous, Senior
Planner; Josh Metzer, Planner I; and Alyson Morris, Assistant City Engineer
PUBLIC PRESENT FOR ALL ITEMS:
Matt Wessale
Dave Johnson
9350 Gary Avenue, Waconia
219 W. 82nd Street
PUBLIC HEARING:
HARD COVER VARIANCE REQUEST FOR A SINGLE F AMIL Y HOME LOCATED
AT 380 WEST 86TH STREET. TROY & VIRGINIA KAKACEK. PLANNING CASE NO.
05-18.
Public Present:
Name
Address
Larry Martin
Ginger & Troy Kakacek
2707 Spy Glass Drive
380 West 86th Street
Josh Metzer presented the staff report on this item.
McDonald: Does anyone on the commission have any questions at this time?
Larson: Yeah. I've looked at this... Is it on? Hello. When this came up before, you know I
understand that they didn't pull the permit to do the extra patio. Is it that large of an issue? I
mean we've gotten letters and things from some of the neighbors. They don't seem to be
opposed to it. What is the main problem with this because the way I see it, as it is, it looks like a
nice improvement. It's not a detrimental looking improvement to the home. So is the problem
because of the surface water?
Metzer: Right. This home's located in a single family residential district and they are limited to
25% hard cover for the whole property. If they're over that, they either have to bring it to
compliance or we end up here with the variance process. We as staff can't be subjective about it.
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Planning Commission Meeting - July 19,2005
Larson: Okay. So the main issue we're dealing with here is the fact that maybe their lot is
smaller than maybe others in the neighborhood.
Metzer: Right, but the fact remains that they have to comply with the 25%.
Larson: Okay, thank you. That's all I have.
McDonald: Anyone else have any questions?
Zorn: Josh I have a question.
Metzer: Yes.
Zorn: In order to come into compliance you need to, for hard cover surface, surface ratio needs
to be 25% or less.
Metzer: Right.
Zorn: And on page 4 of the report indicates that as the survey had shows that the home and
driveway alone are 25.8. Have you discussed with the homeowners ways to rectify that? Or
what an option would be...
Metzer: The only option would be to remove part of the driveway. Shave off some edge of the
driveway.
Zorn: Okay.
Metzer: It's not that significant. III square feet. If you took a strip along the edge of the
driveway you should be able to accomplish that.
Zorn: Okay.
Papke: What's the style of the house? Is it two story, rambler?
Metzer: It's a two story.
Papke: It's a two story. So it's almost a 2,600 square foot foundation, two story house. That's
pretty substantial.
Keefe: What is the, you said that the homeowner came in and asked for, you know consulting
with staff in regards to the landscaping. What do we typically communicate to homeowners in
regards to landscaping in terms of what they can do and what they can't do? Do we have sort of
strict?
Metzer: Well I believe the specific question at that time was, and this occurred long ago. The
specific question was how close can they come to property lines with landscaping and the answer
2
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Planning Commission Meeting - July 19,2005
was, you can landscape anywhere on your property but we encourage you not to, to stay out of
the easements in case we have to come in there and do work. The city would not be liable for
replacing any landscaping that was removed.
Keefe: Right. Do we typically you know recommend any sort of materials or recommend
anything in regards to how we landscape? And one of the things if somebody were to come in
and say well here's what we're thinking of doing, you know they might say we're thinking about
putting in some plantings and whatever and they might include a patio, but maybe they wouldn't,
but do we get into those types of.
Metzer: It's got to be very case specific I guess. You know it's hard to say. In general ifthere's
an idea that they're going to be placing patio or anything like that, the issue of hard cover would
be discussed. _
Keefe: Okay, so it really just never came up in regards to.
Metzer: Apparently not.
Keefe: Yeah, okay.
Metzer: I can't say first hand so.
Keefe: Right.
McDonald: Anyone else? I guess I've got a couple of questions for you. On the patio you had
talked in here about maybe alternatives. If they were to put a deck up, does that begin to
alleviate the problems and if so, are there special considerations there as far as the under
foundation of a deck or anything?
Metzer: As long as, we don't consider a deck to be hard covered ifthere's no hard cover
underneath. If it's soil or some sort of landscaping with a fabric layer, we don't consider that
hard cover.
McDonald: Okay. On the, there was another thing in here that I'm a little confused about and
that's the drawings that were submitted. And correct me if I'm wrong but as I read this it sounds
as though the owner had one set which may have had these layouts on it. You had another set
that did not have these on it and what we approved as far as I guess the final approval were the
drawings in your possession. What happened?
Metzer: The big issue with the difference in the drawings was the driveway. The shape and size
of the driveway. What the city received in the permit package was the first drawing that I put up
there. You can see the difference in the driveway there. This was submitted as a part of the
building permit process and this is what we received as an as-built survey, and the applicant
informed us that this was what they had in mind the whole time. So that's where the confusion
came across as far as we know.
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Planning Commission Meeting - July 19,2005
Undestad: The submitted one was the 25% hard cover, is that right? The permit?
Metzer: I believe it was the 24 point some odd percent.
McDonald: Any further questions?
Keefe: Just to be clear on this. The driveway on the right looks like it's more like a lane and a
half coming in from the curb. Then widens out to the two lanes, and is it a two stall or three
stall? Three right and then the one that you received or approved did not include the patio
coverage or the sidewalk coverage.
Metzer: Right. The survey on the left was, we require as-built surveys for after homes are built
so this was the survey on the left was an after the fact.
Keefe: And the one on the right doesn't have either sidewalk or patio and had the reduced
driveway.
Metzer: Right.
Keefe: And that meets, it just barely meets the cover at 24.8. Okay.
Metzer: Right.
McDonald: Any other questions?
Zorn: I do have one more. As a new home builder myself, during the process when we were
working with our lot and the way the house would sit, I don't recall our builder indicating at all a
concern about size and this hard coverage surface ratio. Is there, do you encourage builders to
talk with their clients as they move forward? Just thinking that that might have resolved a lot of
confusion. . .
Metzer: Well I know builders are made aware of the hard surface restrictions in their zone that
they're building in.
Zorn: Okay.
Generous: Well it's a requirement on the design now that they give us those calculations.
Zorn: And that will likely help a lot.
Generous: Yes.
Zorn: Okay, thanks.
McDonald: Okay. And with that are the homeowners here?
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Planning Commission Meeting - July 19,2005
Larry Martin: Good evening Chairman McDonald, commissioners. My name's Larry Martin.
I'm here on behalf of the homeowners this evening. My address is 2707 Spy Glass Drive and I'd
like to address this issue for the homeowners. The commission asked, you know what is the
procedural posture for this evening and the answer that was referenced is correct. It is in the
alternative that there's two possibilities at the end of this process, after you make a
recommendation to City Council. City Council can either grant the variance, based on your
recommendation or deny the variance and once the variance is denied, if the variance is denied,
then those hard surface improvements will have to be removed. If the variance is granted, those
improvements can remain and the variance runs with the property and so there will always be an
exception for that piece of property that they'll be allowed a 30% hard surface coverage, based
upon that variance. And that's the reason we're here tonight is to ask for that variance. The
back drop, the question you had of staff is very good review of kind of the key issues, but as you
focus on this variance request, really what you need to kind of key in on are the 6 elements that
staff has outlined for you in their staff report. I think you'll find that on page 6, it's listed as
items a through f, and Ithink when you page down and take a look at item f, well there's really
no dispute there. I think item f is the one that talks about light and view and that kind of thing,
and interfering with your neighbor's property. Well that's not a concern. There's no dispute
about that. However, there is a little bit of a disagreement on each and every one of the rest of
the elements and so what I'd like to do is take a little bit of time and talk to you about those and
explain to you why you can make findings that are reasonable and make a recommendation to
City Council that this variance would be okay. And what I'd like to do rather than starting with a
is kind of go down the line a little bit to item d, which is whether or not the hardship, the
purported hardship is one that's self created. That's kind of an important issue when it comes to
variances and Planning Commissions generally spend a lot of time on that. One, it's kind of like
well are they making their own problem. In this case staff is saying that yes, this was a self
created problem because the applicant should have made a request for a zoning compliance
review, and if they had done that then this problem wouldn't have occurred. And that's a fair
observation but the commissioners need a little bit more of a back drop to the history of this so
they can understand how things, how the miscommunication occurred. Now we're not here to
say the staff did anything wrong. We don't think we did anything wrong either, but we got
caught in a sideways position here and that's why we're seeking your help. Those surveys that
were presented to the building department and the planning department a while back and when
the application was first made do not show the patio but I think that the actual building plans
show a patio and actually the future expansion of a, I don't know if it's a porch or 3 season or
screened porch. Maybe if I could ask for your assistance so I do this right. What the file should
have, or we didn't compare this to the file. The file didn't have these plans along with future
patio, future patio, four season porch, hot tub... Well of course under the hard surface
requirement, none of that's going in. However, we did set out very early on disclosing that these
future plans were intended. My clients recollect it very well because there was an issue with the
proposed footings for the four season porch that had to be revised. I guess it was a $200 cost
revision for making that footing revision. However when they actually came in to build the
house it was decided they couldn't afford all that and so it was pulled back and they just decided
to build it without the four season porch and without the patios for now. After that, and I think it
was something like the end of 2004. End of 2003 when the house was being completed, when
well there was a 6 month time period when the landscaping had to be completed and at the end
of the 6 months they knew they had to have all the landscaping in. They decided well you know
5
Planning Commission Meeting - July 19, 2005
what, maybe we should put in the patio now as long as we're putting in the landscaping. The
applicant came to the city and met with them two times in July to talk to them about the patio
and the landscaping and it was specifically a question of whether or not they needed any permits
for the patio. And of course the city code at that time, and I think it's still true today, you don't
need a permit for the patio. So there wasn't a triggering event for a review. And so that's really
where the miscommunication is and that's kind of what generates a problem. But anyway, not
only did they come in twice in July to ask about the permit process and whether or not one was
necessary or what they needed to do, including the patio, but their developer came in after. Not
developer but their builder also checked to see whether or not he needed a permit to put in the
patio. And of course the response was no. You don't need one in the city of Chanhassen to get a
patio built. What you do need is a planning review. Well, I don't know if you necessarily need
it because there's no permit that you have to take out for it. But arguably because of this result
you do need to come in and talk to staff about it and get permission. Otherwise you get in the
situation that we're in. However when you go to the counter and talk to people about it, they say
you don't need a permit. Well it sounds like staff's kind of worked that all out and you're
required to show calculations to prove your hard surface requirement is met or that you're not
exceeding it. But we were caught in that gray area where things weren't explained quite so well.
Now, that's all important back drop to this item d. The alleged hardship is not being self created.
Well, you know who's fault is it? I don't think it's my clients fault, and I don't want to say it's
staff fault either, but there was a point in time when things where a little bit gray about what you
needed to do to put in a patio. You didn't need a permit. But a zoning compliance review would
have been really good if somebody had told us that we needed to do that. If they would have
told us, then they would have built a deck. Now we've got the patio and that's a problem, and
tearing it out now is a hardship after all this is said and done because there's a significant amount
of money that's invested in it. Okay, so that's kind of the critical juncture where things went
awry. Now is that a hardship created by them? I don't think so but you know that's a finding of
fact for you to make and make a recommendation to the City Council on. But then after you
decide that, if you decide that that's not self created, then the rest of the elements I think are a
little bit easier for you and so like for a, literal enforcement causes undue hardship. Well, if the
hardship is based upon a miscommunication with staff and it's really not the applicant's fault and
here they are in a situation where they spent a lot of money on an improvement and if you go the
wrong way on this and don't grant them the variance and they have to tear it out, they've lost a
lot of money and if you lose money, that's a hardship and if it's a lot of money, it's an undue
hardship. And in this case I think we're talking about an investment of about $6,000. That's
going to be painful if they have to do that. Item number b. Conditions are applicable to other
property generally in the zoning district. Well what staff is saying is true there. Certainly the
25% requirement is a requirement of each and every property within the zoning district that
they're in. However, the special condition that applies in this variance request is that it's the
miscommunication is the condition or the event that creates the hardship that creates the
problem. Is the miscommunication and the unfortunate circumstances that arise because of it the
same thing for each and every property and the jurisdiction? Or in that zoning district. The
answer is no. I mean this is going to be one, you know hopefully you won't see a whole lot more
of these pop up but when they do come up, it's a good thing to help your neighbor out on when
things have gone awry. It won't be an overriding problem with a bunch of property in the zoning
district. C. Is the purpose of the variance based upon a desire to increase value or income
potential for the property? Well certainly there's an investment in those improvements.
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Planning Commission Meeting - July 19,2005
However this is a motivational element. You know what's the purpose of the desire or the intent
of the applicant once they achieve it? Well it's not a money making thing that they're working
on. What they want to do is avoid losing money that arises back again from that
miscommunication. And so I think staff's proposed finding there is a little bit too strong, and it's
more to avoid loss than it is to seek gain. And that brings me back to that item d which is the not
self created issue that I started the discussion out with. Commissioners, the light and air problem
is not an argument, point of argument with staff. And I want to say again is that there was, I
think it's clear that there was a gray area in how they should have been treated a while ago.
That's something that happens frequently in cities and I don't think anyone's to blame but we
strongly request that you give the alternative. Staff's been kind enough to list an alternative
decision for you to recommend approval of the variance. We hope that you, to pick that out as
your choice this evening and adopt findings of fact consistent with our presentation. There is,
this isn't worth.roentioning because really, but Ijust put it on the record so you understand the
issue. There's a condition that's been added regarding trees. With respect to trees, I think there
is a subdivision condition that requires 2 trees in the front of every lot, and then there's a series
of trees that were to be planted in the back of these lots. In my mind there's a little bit of a
difference in interpretation on how that applies. But after I reviewed the condition it just says
you know comply with the subdivision condition and so if there's a disagreement on how that's
to be interpreted, we can work that out. Certainly it's reasonable to require us to comply with the
condition of that subdivision because it's already stated. How you interpret it's a different thing.
Unless Ginger and Troy have anything to add, we'll answer any questions that you have of us.
McDonald: Okay, I'll throw it open to question.
Undestad: I just have one question. When you did your initial building permit application, did
you talk about the 25% coverages and all that at that time or? So you really had no idea that any
of that was going on?
Larson: I've got one quick one too. We spoke earlier about possibility just cutting the driveway
out. Is that a consideration for your guys? A portion of the driveway which would put you in
compliance. Rather than taking out your patio. I understand not wanting to get rid of that but a
portion you know.
Undestad: I don't think that would work. A sliver would be if they didn't have any other hard
surface on there. Their initial plan that was shown on there, their house and driveway was,
actually that was over on the 25%.
Larson: I mean instead of.
McDonald: If they take all the hard surface out except the driveway, you're still over.
Papke: So let me ask the converse question. At the end of the day we have to either approve or
deny the variance. Would you be willing to accept a variance of .8% that would allow the
driveway to remain intact and simply remove the patio?
7
Planning Commission Meeting - July 19,2005
Larry Martin: We definitely would like to have this heard by the City Council. Let me state it
this way. When we made the appointment for the initial meeting, there was also a request in the
application for a variance to include the sidewalk and the other hard surface areas, and we took a
look at that and we said well, you know what. The biggest issue that we have here is the patio.
That's where the biggest expenditure is. That's where we were. We got off the beaten path by
the miscommunication. We're trying to avoid that loss and so we really want to exhaust all of
our potential remedies. Now having said that, what we did try to do when we tabled it and came
here tonight is try to eliminate anything that you know is easier to say yes to, and so like if you
wanted to say you know, take the sidewalk off. Well we would say yes to that anyway. Or take
the gravel pathway out. Well they ask us that, we'll say yes to that. So you know let's just do
that before we go ask them for the big item. Because that's really what we want. If there were a
way to easily do it structurally to amend the construction of the driveway, it'd be easier to say
yes to that too bat the thing about that is, it is constructed in such a way that it's not a 2 car
garage, as it says in the staff report. It's a 3 car garage and if you don't you know have a
minimum amount of dry space to get to that third stall, you know even if you, even if you cut it
out, then you're driving over the grass and that gets compacted into a hard surface and becomes
an eyesore and we just want to maintain it for reasonable maneuverability.
Keefe: I've got one question. Can you go back to the permitting of the patio briefly and restate
kind of, I got lost a little bit in regards to what happened there because at least my thinking is
that most builders who come in and most patio builders are pretty familiar with coming in to
draw a permit for a patio within the city of Chanhassen.
Larry Martin: Well that's the confusing part is that Commissioner, Chairman McDonald,
Commissioner Keefe. The city doesn't require a permit for a patio and so when people come in
and say, do I need a permit for a patio. The city says no. They walk away and say well I can go
build my patio. What you need to say in addition to that is, however you might run into a
problem if you don't have the zoning compliance review, which technically is a permit but if
they don't hear that, they just walk away and figure that they can build it. Now staff has solve
that problem because you have to submit your impervious calculations before you draw a permit.
So that glitch in the system has been eliminated. But we're still stuck... was still confusing.
Papke: Several questions all related. Was the builder of the patio the same as the builder of the
home?
Larry Martin: I don't think so. No, it's a different builder.
Papke: And did you ask the builder of the patio whether or not he or she was aware of the hard
surface coverage?
Larry Martin: Actually the builder of the patio came in to ask also about permit requirements
and he was told that there weren't any permits needed.
Papke: But did you ask him if he was aware of the hard surface coverage limitation within the
city of Chanhassen?
8
Planning Commission Meeting - July 19,2005
Larry Martin: We didn't understand the hard surface requirement until.
Papke: Have you asked him since then?
Larry Martin: No. I'm assuming not.
McDonald: Any other questions from anyone else?
Larry Martin: Thank you commissioners.
McDonald: Well I've got a question for you. Yeah, I'm still trying to figure out this permit
thing myself. As to when things happened. The original builder of the house I take it had
nothing to do with the patio. The patio was contracted after the house was built?
Larry Martin: That's correct Chair.
McDonald: Okay. And the builder who did that you're saying was unfamiliar with the zoning
compliance review or the fact that there may be other zoning issues that just because he doesn't
need a permit for a patio, he may end up needing a permit to be in compliance with our zoning
ordinances. He didn't understand all of that.
Larry Martin: Well there is no permit requirement.
McDonald: There would be no permit requirement but with the zoning compliance review you
would have found you didn't meet the 25%, so a builder should have known that while I don't
need a patio, I may need to look a little bit further and make sure that there's not something else
that's going to jump up and sabotage all of this.
Larry Martin: That's true commissioner. If it's reasonable to anticipate that a builder once told
that permits are required, should have a reason to believe that a zoning compliance review was
necessary. Which seems unlikely to me. That's a little backwards.
McDonald: Was this a builder who had done other projects within the city of Chanhassen?
Larry Martin: I don't know the answer to that question.
Ginger Kakacek: Yeah he's been...
McDonald: And he's done projects in other municipalities I take it also?
Ginger Kakacek: Yes.
McDonald: Then why wouldn't he be aware of the fact that there was probably a zoning
compliance that he should have looked at? I could understand where the homeowners may be
confused in this. I'm having a problem understanding how a licensed builder would be
confused.
9
Planning Commission Meeting - July 19,2005
Ginger Kakacek: ... where he should put the patio...
McDonald: He's still licensed. He is licensed, right?
Ginger Kakacek: Yes, he is licensed.
McDonald: If he's done, ifhe does commercial projects he should know.
Larry Martin: Quite frankly Chair I've been practicing land use law for 25 years at a broker,
appraiser. Worked for cities. Worked for counties. I understand the hard surface requirements.
It seems easy for me to see and understand how someone would be confused if they came in for
a permit and if the issue about zoning compliance wasn't raised at the time of permit application.
That they would think that nothing else would be necessary.
McDonald: Okay. That's all the questions I have. Does anyone else wish to speak on this
matter? Okay, seeing no one else I will bring it back up to the council for discussion. Who
wants to start at which end?
Papke: Okay, I'll start. I'm opposed to granting this variance for two main reasons. First of all
it was partially justified by the applicant that the neighbors don't come close to exceeding the
hard surface coverage, but the city code clearly spells out that we manage hard surface coverage
on a lot by lot basis. To try to manage this across a whole neighborhood would get us into a tar
pit of discussions as to how do you allocate the over's and under's and all that kind of good stuff.
So clearly from my perspective the fact that the neighbors don't come close to exceeding the
coverage is no, is not a valid argument. The other one is the argument as to the hardship nature
of the request, and this is similar to some of the other ones that we've discussed in the past, that
as as-built situation, just because someone has built the structure or put in the patio, that does
not, and having no knowledge of the city code restrictions, does not constitute a hardship in
retrospect. So I do not see any cause for hardship here. The third argument, or issue is, well I'll
leave it at that. That's probably enough said, thanks.
McDonald: Debbie.
Zorn: I also would not recommend this variance for the same reasons as Kurt. I've been through
that process of the home building recently and I know it's a difficult situation and I feel for this
homeowner but I think it would be very hard for us to continue to be confronted with variances
throughout the city. And I am very pleased that there are some alternatives that the city is
recommending and if considering a.8 variance might, probably wouldn't be something we
would recommend. Possibly so, but I guess that's something for a discussion for another time.
Papke: I've got one additional comment. Yeah, the third issue reoccurred to me. The other
issue surrounds the zoning compliance process and the applicant stated that this is new and so
they weren't aware of it at the time but one has to recall why this was originally implemented
and I haven't been around that long but I've been around long enough to been a part of the
initiation of that process and the zoning compliance process is there specifically to help avoid
10
Planning Commission Meeting - July 19,2005
these kinds of situations as a communications tool. It's not a requirement that we put on people
to add extra work or there's no extra rules there. It's just specifically to help avoid these kinds of
situations and help eliminate communication miscues and so the fact that this occurred during the
time period within which that was being implemented, okay so we're improving the process but
that doesn't necessarily excuse the lack of knowledge of the city code.
McDonald: Okay. Dan.
Keefe: I'm trying to find a hardship here and I think despite what the applicant came up and said
in regards to letter d, I'm just not quite there in regards to buying into that. Our job is really to
you know enforce the code and we can potentially grant a variance here if we find a hardship but
I'm just having a hard time getting over that threshold and I feel for the applicant but I think our
job is really to,~ou know we're here to interpret and I think you've got to take it to the next step
so I would deny this.
McDonald: Okay. Debbie.
Larson: My main issue with this is the whole reason these rules are put in place is because of
the, to keep Chanhassen and to keep the water and all that in compliance or just to make sure that
the land doesn't get messed up in case we have a big water event or whatever. And yes it's a
hardship but it's also that if you have to tear this out, all the money that was wasted going into
this. However, like everybody else has said, lack of knowledge is not necessarily an excuse. I
feel bad that it wasn't spelled out to you as clearly as it possibly should have, but again I think
too your builder, your original architect, everybody that was submitting plans and they.. .had
known. The fact that it was put in there as a potential on your original plan isn't saying that it's
actually going to be done because that would be an issue that would be brought up later. So
unfortunately I would have to suggest denial on this as well.
McDonald: Mark.
Undestad: No comments.
McDonald: I guess the only comments that I will make, I don't want to repeat what everybody
has said but you're asking for a big variance. 4.8%. While that may not seem like a big
variance, we've had people in here before that have asked for less than that and we've sent them
back to the drawing board. These rules are in there for a reason. Again what I go back to is that
you had a licensed contractor do this. It is their responsibility to make sure that they are code
compliant. They have a liability to do that as a duty to you so I just, I have a problem granting
the variance. I would probably be more likely to grant the variance on the driveway because you
do make some good points there, but as far as the patio, it's not as though we're going to be
taking away your back yard. It's not as though we're going to be taking away your patio. You
can put a deck out there and it's the same thing. You will still be able to use your back yard. So
based upon that, I guess I would throw it open for a recommendation.
Papke: Before we make a motion do we want, based upon what the applicant has heard, do we
want to give them one last opportunity to amend their application?
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Planning Commission Meeting - July 19,2005
McDonald: I will advance that courtesy to them, if they wish to amend their application.
Larry Martin: No.
Papke: Okay.
McDonald: Then I will throw it open for a motion.
Papke: Mr. Chair, I make a motion that we deny Variance #05-18 for a 4.23% hard surface
coverage variance from the maximum 25% hard surface coverage restriction for the addition of a
patio and retaining wall on the lot zoned single family residential, RSF based upon the findings
in the staff repoo and the following. Number 1. The applicant has not demonstrated hardship.
Number 2. The property owner has reasonable use of the property. Therefore the Planning
Commission orders the property owner to remove sufficient impervious surface to comply with
ordinance requirements and to plant 3 trees to meet subdivision requirements.
McDonald: I have a motion. Do I have a second?
Larson: Second.
McDonald: I have a second.
Papke moved, Larson seconded that the Planning Commission deny Variance #05-18 for a
4.23% hard surface coverage variance from the maximum 25% hard surface coverage
restriction for the addition of a patio and retaining wall on the lot zoned single family
residential, RSF based upon the findings in the staff report and the following.
1. The applicant has not demonstrated hardship.
2. The property owner has reasonable use of the property.
Therefore the Planning Commission orders the property owner to:
1. Remove sufficient impervious surface to comply with ordinance requirements.
2. Plant 3 trees to meet subdivision requirements.
All voted in favor and the motion carried unanimously with a vote of 6 to O.
PUBLIC HEARING:
REQUEST FOR REZONING OF PROPERTY FROM A2 TO PUD-R; SUBDIVISION
WITH VARIANCES OF APPROXIMATELY 91 ACRES INTO 84 LOTS. 3 OUTLOTS
AND PUBLIC RIGHT-OF- WAY; SITE PLAN APPROVAL FOR 459 TOWNHOUSE
UNITS; WETLAND ALTERATION PERMIT; CONDITIONAL USE PERMIT FOR
ALTERATION OF THE FLOOD PLAIN; AND CONDITIONAL USE PERMIT FOR
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City Council Meeting – September 12, 2005
Resolution#2005-74:
d. Approve Plans & Specifications; Authorize Advertising for Bids
for the 2005 MUSA Improvements, Phase I, Project No. 04-05.
Resolution#2005-75:
e. Approve Consultant Contract for 2006 Street Improvement Project
No. 06-01.
Resolution#2005-76:
g. Resolution Decertifying Gateway Tax Increment Financing (TIF)
District #6.
h. Approval of Cell Tower Lease Agreement with T-Mobile.
All voted in favor and the motion carried unanimously with a vote of 4 to 0.
VISITOR PRESENTATIONS:
Tom Meier: Good evening Mayor, members. I’m Tom Meier from 695 Pleasant View and I just
wanted to reiterate on the McCord issue and David Sanford on the alteration permit.
Mayor Furlong: Mr. Meier, if you’d like we can pick up your comments at that time on the
agenda if that’d be okay.
Tom Meier: That’d be great.
Mayor Furlong: Do you mind waiting? That way we can take it in context.
Tom Meier: Okay, thank you.
Mayor Furlong: Thank you. Is there anybody else who would like to address the council this
evening during visitor presentations? Seeing none then, we offer this opportunity at every
meeting so people watching at home are welcome to come as well.
TH
TROY AND VIRGINIA KAKACEK, 380 WEST 86 STREET, PLANNING CASE 05-
18: HARD COVER VARIANCE REQUEST FOR A SINGLE FAMILY HOME.
Kate Aanenson: Thank you. This item, located on Tigua Lane, just off of 101, appeared before
the Planning Commission. There is some length of time inbetween. The applicants had
requested additional time to work through some issues and then also the time it appeared before
the Planning Commission and City Council based on length of some agendas, but this item did
appear before the Planning Commission and they recommended 6-0 denial. That is why it’s in
front of you tonight. Again subject site, this is a recently created subdivision of an existing large
lot. The applicant did appear, apply for a building permit and this was the original survey. I
have one that’s colored a little bit better but I just want to go through. This was the original
survey that was submitted. I do believe you all received a letter from Mr. Martin, the attorney
regarding some of the issues in the kind of time date issues. I do believe all of you were emailed
that. There’s a lot of he said, she said and I’m not going to go into those. I’m just going to
present the facts as the staff saw them and how we approached the permit. So it came in and the
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City Council Meeting – September 12, 2005
porch and the driveway were recommended to be changed. It was our position it was over the
25%. Obviously there’s a different perspective on that and it was asked to be re-surveyed. And
the revised survey included the reduction of the driveway to meet the ordinance which requires
24 feet at the street and the porch was removed. So the permit was issued, and this one is
colored so it’s easier to see. Based on this survey right here which again, there was no porch or
patio and the revised driveway. As now required as-built surveys are all required on all new, or
after the home is constructed. Which when it was completed in March, so typically in March it
may not have all the things done but the survey was completed later in the summer after the
escrow was requested. At that time it was noted that this was what was shown on the survey. So
the driveway, additional concrete and a patio so again we’re over the impervious percentage. So
when it came in for the as-built survey it was noted that was a non-compliance. Sent the letter
and that’s what started the variance process. So they have made some changes and those are
noted in the staff report...the impervious surface. Specifically mulch face down the gravel
portion here. They have concrete here but then gravel around to the back. And then they still
have a concrete driveway in the back. Originally on the porch, the porch if it was raised above
grade with grass underneath that wouldn’t count towards the impervious so they still have the
ability to put a porch on that wouldn’t require a variance again because there’d be grass
underneath. Again the goal is to provide an area for that water, it’s a capacity issue. But we’re
still over 600 square feet and that’s where the Planning Commission struggled. It is onerous
obviously to take out the patio and, which is the 500 square feet approximately, and then maybe
another 170 feet of the driveway. So to get it to the 25%. So again there’s a lot of detail in the
staff report on what the staff believes was the process, and certainly the applicant believes in
their due diligence that they proceeded the right way. I’ll just rely on what we saw as the survey
as submitted and the as-built’s. So again the Planning Commission did recommend 6-no denial.
We have put conditions in the staff report. Findings and recommendations either way and I’d be
happy to answer any questions that you have.
Mayor Furlong: Thank you. Questions for staff.
Councilwoman Tjornhom: I’m not sure if this is a question for you Kate or for Lori. These
paver patios seem to always kick up trouble it seems like. People think they’re fine and now all
of a sudden they find out, no. They can’t have it. Is there a paver that they can use that you
would allow and not count against them for their hard surface coverage?
Lori Haak: I’m not particularly familiar with this site, but at present there isn’t a paver that staff
counts against that hard surface coverage so at this time no, there is not.
Mayor Furlong: Other questions for staff.
Councilman Lundquist: Kate do we have dates on those surveys or revised surveys somewhere
that references in the permit which drawing was used to generate the permit?
rd
Kate Aanenson: Sure. The original survey is October 23 and then the revised ones that were
th
signed off were November 17.
th
Councilman Lundquist: Okay. And does it somewhere reference that, November 17?
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City Council Meeting – September 12, 2005
Kate Aanenson: There’s two places that we would sign on a permit. One would be on the
survey and then one would actually be on the building permit itself.
th
Councilman Lundquist: So the signed survey is the 17 one?
Kate Aanenson: Correct. The one that was approved that went around. And then also there’s
also a routing form that goes around. And additional comments. There’s some changes that
were made when the house, the original survey came in and it was slid, moved an arboretum is
shown up on here. That was the only thing that was added. But there was some mulch when the
building inspector that went out that it was noted that that porch was not approved so the
building inspector went out and noted that there was an arboretum that was shown on the site
plan that was not, or shown on the survey that was not noted so there’s some notes to that effect.
thth
That was all dated the 11. Excuse me the 7 of November. That the permit was issued, and
th
then again the final, the Certificate of Occupancy were given in March 25 of ’04 but again since
it’s springtime, typically the as-builts and the concrete work doesn’t typically happen til later.
Councilman Lundquist: Sure.
Kate Aanenson: So when the inspector went out those things, probably not, because if they were
under snow or were not in place, correct.
Councilman Lundquist: Okay.
Mayor Furlong: Ms. Aanenson, the survey that the permit was issued on, and then the as-built,
and particular the size, the building itself. Size of house. The home and then the driveway. It
looked like, if I saw that correctly that that really was, that the permit was issued on a driveway
in place. No sidewalks from the driveway to the front of the house.
Kate Aanenson: That’s correct.
Mayor Furlong: Did the actual driveway that was built a different size than the driveway that
was on this plan? I mean it looks like it’s going different ways but was the driveway area larger
built than what was in the plan for what the survey showed for the permit?
Kate Aanenson: It’s probably a little bit wider. I think the engineering had it tapering on this
side a little bit more so on this one it just cuts across here. Better to just calculate that. That
triangle there so it may be a little bit larger there. I didn’t look at the original calculation. The
survey’s in the staff report how big it is.
Mayor Furlong: The staff report shows that the home and driveway together slightly exceed the
25 limit so that’s why I was wondering if the permit…
Kate Aanenson: Right, I believe this driveway was a little bit narrower. The original survey
one.
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City Council Meeting – September 12, 2005
Mayor Furlong: The one that the permit was issued on.
Kate Aanenson: Correct. Right, it’s tapering back over here. They actually tapered it from the
other side. You can see this is a straight line with a taper and then this cuts over.
Mayor Furlong: So the question then is the width where it tapers and such but. Alright. Thank
you. Any other questions for staff at this time? If not, is the applicant here? If they’d like to.
Larry Martin: Good evening Mayor and Council members. My name is Larry Martin and I’m
here on behalf of Ginger and Troy Kakacek. Ginger and Troy are my niece and nephew. Or
niece and nephew in law and I’m here on their behalf this evening to kind of explain the history
of this, although in the interest of time I did send out a letter. I don’t know if it got to everybody
and if you had a chance to look at it. It had, I’ve got a long version. I’ve got a short version.
I’ve got a just get right down to the point version and I saw some heads nodding so I’ll try to,
limit to the short version.
Mayor Furlong: I think that’s fine. We did have the advantage of the Planning Commission
minutes as well so.
Larry Martin: Great. Here’s the issue as I see it. As it boils down. I give you kind of a factual
background of the problem or the genesis from Ginger and Troy’s perspective. And of course
their concern is you know they tried, you know after they had tried to move forward on the
landscaping, their viewpoint is well, they came to the City 3 times to ask about the permits for
the pavers and the response was that there is no permits that are necessary for a patio within the
city as part of a landscaping project. And that’s true. There is no permit that’s necessary to put
in a patio. And I see that as kind of a procedural glitch within the city’s protocol for reviewing
landscape applications or approvals. Staff has noted within their report that well, what you
should have done is come in for a planning and zoning, or another kind of review. That doesn’t
necessarily require a permit but it’s a kind of review process. But that didn’t get communicated
to Ginger and Troy and so they moved forward and they made this mistake. Okay, well that’s
one way of looking at it. Another way that I think is important for you to look at it, as the policy
decision makers for the city is that things have been changing in terms of how you regulate this
paver problem, and hard surface problem. I came in to take a look at the record, the building file
this afternoon to kind of check to see you know how things were checked over time and the
calculations for impervious material don’t actually show up in the file for the city until the as-
built drawing was requested, and so if you take a look at the file and you take a look at the
checklist, it never comes up you know any kind of warning that there is a hard surface issue or
that you may run afoul of going over that hard surface issue until you get done building. And so
I think that’s another procedural point that creates some confusion, some ambiguity. And I think
it’s fair to say that it’s not Ginger and Troy’s fault. It’s not that contractor’s fault or that sub-
contractor’s fault. It’s, and it’s my understanding that that procedural glitch has been corrected
and now when those calculations are done, they’re done early in the process so there is no
confusion. But here’s the significance of it and I think the Mayor kind of pointed that out in the
earlier questioning that when you take a look at the, just the home and the driveway, and in this
particular survey drawing, this is the one that was approved. They come very close to if not
exceeding the hard surface requirement before they even get a sidewalk. You know arguably it
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City Council Meeting – September 12, 2005
should have shown up there. Arguably somebody should have anticipated that a sidewalk was
going to be needed also. Otherwise you’ll have just grass between the driveway and the stoop,
but everybody puts a sidewalk in eventually. There should have been some sort of alert to that
effect. But that question doesn’t even come up or did not at that time even come up within the
city process, if you take a look at the permit approval checklist. There is a checklist marked
there for drainage but there is no checklist for the 25% hard surface requirement. I think it’s fair
to say that in the end there was some honest miscommunication that went there. You know I
don’t want to say that it was staff’s fault, but I also don’t think it was Troy and Ginger’s fault,
and so here’s kind of where the rubber hits the road. You know the point that I think that’s
important for you is, and the question is, how harsh do you have to be in this setting? Staff has
given you an alternative, two alternative resolutions to pass. One, opposed to the variance
request and one in favor of it. In a situation where the landowner really isn’t at fault, and I don’t
think that they are and I think it’s fair for you to conclude that they aren’t. You know there’s
really no reason to be strict or harsh, especially in a situation like this where they’re actually
going to suffer financial harm because of it, unless somebody else is hurt. The staff has listed
out 6 variables for you to consider in a variance situation and you know probably the most
important one is, is whether or not there’s going to be any harm to the neighborhood or any
adjoining property owners if you decide to grant this variance. Staff has suggested a finding that
well you know we could, it really could generate some harm but not for 600 square feet. You
know that’s really not a fair finding. I don’t think Paul actually made that comment but he’s the
one who has to be questioned and I suspect that somebody will probably ask him that question, is
600 square feet really the kind of hard surface that’s going to cause any damage to anyone of the
neighbors if you had a significant rainfall event. When the Planning Commission looked at it
they thought, and when they were measuring the order of magnitude they thought well 5% is a
lot. I’d say well, you know we started out with a little over 6% variance. We took out the
sidewalk. We took out the gravel. We took out some hard surface to bring it down below 5%.
About, in fairness to Ginger and Troy and other property owners that might in this situation some
day, I think 5% is the wrong way to take a look at it. 5% for a million square foot is a lot of land
area. Now all of a sudden you’re talking about 50,000 an acre of hard surface, but 600 square
feet is not a lot of area and it’s not going to do any damage to anyone. Another thing, you know
things for you to balance I think that’s important as the policy deciders for the city is, you know
whether or not anybody is really opposed to it and I don’t think anybody’s going to speak in
opposition to this proposal tonight. And we do have neighbors that are in favor of it. Have
commented and the letter from the neighbors is in the record and they’ve even mentioned that
they’ve got a site that is far in excess of what they need and they’re under their 25% hard surface
requirement and so there’s plenty of land that’s not under hard surface to absorb rainfall, so it
kind of balances out within the neighborhood. That’s the key point that I wanted to make.
There’s two alternatives before you. I think it’s fair to say that there’s no reason to be harsh.
The other point that of course reason for strictness would be if the property owner were
flagrantly violating, knowingly violating the ordinance of the hard surface requirement, and
that’s not the case here either. There’s plenty of facts in the record for you to find alternate good
facts and to adopt the resolution approving the variance and that’s what our request is. Be happy
to address any other facts that are in the letter or any supplemental facts or answer any questions.
Ginger and Troy and one of the reasons for the delay in asking for the continuance is they just
had a new little baby that’s in the hallway too. She will not be commenting but.
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City Council Meeting – September 12, 2005
Mayor Furlong: She did already.
Larry Martin: Yeah, that’s right. Thank you very much.
Mayor Furlong: Any questions? For Mr. Martin.
Councilman Lundquist: Mr. Martin, have your clients ever talked to any of the neighbors with
the excess land about purchasing 700 or 2,800 square feet to bring them back under the amount?
th
Larry Martin: You know we looked at it. We sat down with staff before the July 19 meeting to
explore that issue and to look at some surveys to see if we drew a straight line and tried to make
a cut there, to make it work but there’s a pool structure, what do you call it? A pump. Filter
kind of thing that’s in their back yard that’s, creates a problem in making a nice, clean cut. Nice,
clean property line. We did talk to staff too about maybe a variance but. Not a variance, an
easement. Transferring that kind of density but I don’t know if Kate ever heard about that
suggestion but at least at a junior staff level that was considered to be inappropriate. However
we’d certainly be willing to ask the adjoining property owners about the easement issue. I think
asking them for a transfer of land that interferes with their existing improvements is a problem.
Councilman Lundquist: Sure.
Mayor Furlong: Other questions of Mr. Martin. In terms of, I asked a question of staff with
regard to the two surveys and my question was, recognizing now that the house and driveway
exceed the allowable limit, was the driveway built bigger than the original permit survey?
Larry Martin: I think that it was. I saw a drawing in the permit file that kind of demonstrated the
overlay a little bit bigger on one side and a little bit smaller on the other side. Is there a
significant difference? I don’t think that’s true but I think there is a difference. It clearly, I mean
when I looked at it what I did see was that there’s, even if the old driveway, the driveway, the
house and the garage together prevented us from putting a sidewalk in.
Mayor Furlong: So what was submitted with the permit would have met the requirement without
any additional impervious surface addition?
Larry Martin: That, I don’t know if that’s true.
Mayor Furlong: Or at least not, there wouldn’t be enough to allow a sidewalk.
Larry Martin: There definitely would not have been enough to allow a sidewalk. The other
thing that I should have mentioned too is that with respect to the porch, that was pulled for
financial reasons. We never received any information related to hard surface or requirements for
pulling improvements because of hard surface requirements.
Kate Aanenson: There wouldn’t be, no. As I indicated before, a porch because it’s raised up off
the ground and if there’s grass underneath, it wouldn’t count towards the hard surface coverage.
A deck wouldn’t. A porch would.
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City Council Meeting – September 12, 2005
Larry Martin: Actually I think our plans didn’t call for an elevated porch. It was actually we had
some footing problems that they asked us to correct on the drawings so we at the time we
anticipated a crawl space.
Mayor Furlong: Okay. Alright. Any other questions at this time? Ms. Aanenson, you made
some comments. Any comments that you have?
Paul Oehme: No.
Mayor Furlong: Okay. Alright, thank you. There was, as I recall there was a public hearing at
the Planning Commission.
Kate Aanenson: That’s correct.
Mayor Furlong: So I know that we’ve received the Planning Commission minutes. If there’s
somebody that, based upon some additional information or would like to provide public
comment I’d certainly be willing to listen to that at this time too. If anybody’s interested. Okay,
thank you. With that, are there any additional questions for staff or should we bring it back to
council for discussion and see what it generates. Thoughts.
Councilman Peterson: Related question I guess. Kate, can you give me some sense as to what
other cities have as their impervious surface percentage. I mean this has come up more in the
last couple years than it has in my 15 years of hanging around here and I don’t know whether
we’re just pure luck of the draw that I’m getting faced with this recently or are we pretty much
right on the, right on the average of being 25 or is that due to a DNR thing?
Kate Aanenson: I’ll let Lori answer some of that but the first part, I don’t think we have a rash
of these. I think we try really hard to communicate. I think obviously there’s a
miscommunication and I would agree with Mr. Martin that while it may have been on our part,
some of it may have been on their part. I won’t disagree with that but the proportionality of the
impervious relates to lot size. Every city has a different lot size and so our 25% is what’s tied
into our comp plan is what we managed to try to reduce the volume of water that’s coming off
and try to capture it in some of the yards. I don’t think we have that many problems within. We
really work hard to site the home. You know we talked about some of the bigger homes that we
do but the ones that we recently approved, some of the larger homes that are going in, we looked
at the bigger lot sizes and we know that anticipating 3 cars is standard now. 3 car garage. Some
have gone to 2 car garage at 15,000 so we always work with the developer when they come in to
try to figure out what their average square footage of home would be. Again this is pretty
comparable. I think most of the ones that we’re looking at, that’d be 72. 73 maybe by 40 is a
pretty comparable square footage so I don’t think that’s out of whack. It’s those other things that
go on afterwards that we don’t always have control. They change the garage. They add a patio.
That may not have been on the survey or those sort of things. Want to put a hot tub in. A fire
pit. Those are kind of the specific issues that kind of come after the fact. Or once the builder is
up. This builder has done other work in the city. I think that was some of the Planning
Commission’s frustration. The communication. What did the builder know that maybe wasn’t
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City Council Meeting – September 12, 2005
communicated to the homeowner so it’s kind of a two way thing and that happens a lot too. A
lot of finger pointing. Who told, who got the information and who didn’t, you know I’m not
going to dispute that. I think that goes all the way around again for a lot of people’s blame but
again it’s related to lot size so. Plymouth has a different standard for their impervious, as they
have a different lot size requirement, as with Eden Prairie and Minnetonka. Shakopee, they’re
all different but I don’t think our’s is more restrictive than anybody else’s. Again it’s related to
each zoning district has a different impervious requirement too. I don’t know if you want to add
anything to that Lori.
Lori Haak: I’m not particularly again familiar with the specific requirements of a municipality
but generally it’s tied into velocities, water qualities and runoff volume so generally the research
most, actually 25 is pretty high for water quality for urban streams. They recommend no more
than about 15 to 20 in those sensitive areas so I think again I think we’re kind of right in the
ballpark but I don’t have any specific examples that I can cite.
Mayor Furlong: Other thoughts or discussion. Councilman Lundquist. Told me to pass.
Councilman Lundquist: Well it’s an interesting dilemma. With all of the things going on, Kate I
think you said the he said, she said going on. I’m encouraged that the applicants had taken some
steps to correct a piece of that. I think that shows good faith. Good will and wanting to do the
right thing. I mean clearly they didn’t invest $1,000 to do that maliciously or you know
intentionally to go over that so, I don’t see any malice there. But then the other side is, you
know generally speaking ignorance or not being aware of ordinances and statutes and things like
that is not an excuse to not follow them so…going over the speed limit you get a ticket. So I
guess I’m torn between what we do with this and you know it might only be 4.2. It might only
be 600 square feet but the fact is where do you draw the line. You’ve got to draw the line
somewhere. Is it 2%? 5%? 10%? What’s the number you have to draw it somewhere but I’m
not a real big fan of, you know I’ve seen the house out there. There’s a lot of, you know a
couple of new ones out in the area as well that will compliment. I’m not a big fan of asking
people to tear up you know well done landscape here so I’m not exactly sure, if there’s another
alternative as Mr. Martin will ask about the land acquisition and obviously that’s going to be
several thousand dollars as well so that’s another investment, but not really sure that I’m in favor
of having it tore up but I’m not sure I’m in favor of leaving it the way it is either so, how’s that?
Mayor Furlong: Well you’ve defined the issues I think and…politician. Other thoughts.
Councilman Peterson: Yeah I too feel similar in that the ultimately the responsibility for
following the ordinances is the onus is on the homeowner. I think that unfortunately happened in
a negative fashion this way just not understanding and not getting the right questions asked or the
questions answered and certainly there is, ultimately you still have to go back to that they are
responsible but, and again I agree with Councilman Lundquist. Is there another way to do this?
If it was 1% you know I’d be more amenable to do it, right? And we’re talking about ranges
now so, and I’d maybe pause, maybe push it back to the staff and/or let the applicant and staff
work together to find another alternative other than yes or no. I’m open to not being firm at 25%
but, and we’ve had other people in here that have asked for that kind of range and we said no.
So I can’t in good conscience say alright, yes to this one because they’ve done similar kinds of
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City Council Meeting – September 12, 2005
things. There’s been some confusion and there’s been some after the fact accomplishing tasks
and putting in patios and we’ve asked them to tear it up so. But in most of those situations we’ve
found somewhere inbetween. I don’t see that I’ve got that right now so whether or not we can
create that tonight. It’s only 7:30 and we’ve got plenty of things, plenty of time to deal with
what we’ve done tonight so I’d be well certainly willing to hear other alternatives.
Mayor Furlong: Talk about creating a camel out of committee when you’re trying to run your
race horse. Ms. Aanenson, a quick question for you. In our ordinance right now, we have what
is considered impervious. Is there anything within our ordinance that would allow somebody to
gain a credit by some other feature, and I don’t even know what that would be. To make the
surface more pervious. Is there anything in our ordinance right now that allows that? There’s no
credit calculation that goes into either, I mean we do I guess, we don’t count some things such as
landscaping and maybe I’ll swing back to the attorney, since everybody’s pointing that way. Mr.
Knutson.
Roger Knutson: I apologize I have not seen this lot so I don’t know… In other communities
when you want extra impervious surface, you do something to absorb more water, for example a
rain garden. And I don’t know whether or not this makes sense in this location but if you were to
have a rain garden here that would absorb more water than just normal industrial yard would,
you offset the impervious surface. There are things like that.
Mayor Furlong: From a concept standpoint, because I know we’ve talked about rain gardens and
they might have limited affect here with our clay because even if you get down, you know what
you’re saying is other cities look at it.
Roger Knutson: Yeah, do an offset. Can you do anything to capture more water on the lot?
Councilman Peterson: We did something similar with a lot on Lake Riley way back, and I can’t
remember the address.
Kate Aanenson: That was lakescape.
Lori Haak: And actually that homeowner came back later in the process to request relief from
that so actually that was something that was approved by council for a variance and then was
repealed by City Council so I guess that’s maybe. I’m not sure how long ago it was, so I
couldn’t say.
Mayor Furlong: There’s the politician. The issue I think, the issue that we’re looking at here
and one of the questions was where’s the harm? Where’s the foul? It’s 600 feet. I think the
issue is as much we look at it as a council is putting ordinances in place. Asking residents to
adhere to those with some sense of fairness and justice and you know the 600 feet doesn’t sound
like that much but where then is our new line? Is our new line at 30? By default. Is our new
line at 35 for the next person that comes in and says well you know, I’m just a little bit over and
what I’m struggling here, I’m not, and Councilman Lundquist you raise a good point. I don’t
think anybody up here likes the idea here that a decision against or to deny the variance request
means they might have to take something out. What about our residents that do come in and
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City Council Meeting – September 12, 2005
maybe build something less than what they wanted to because they’re adhering to the ordinance?
You know with these after the fact variances they’re tough because you already see what’s there
and yet as much as we can I think we have to look at these as if would we have approved this
before the fact? Would we have approved this additional hard surface coverage before the fact if
they came in asking for the variance and as much as possible put ourselves in that position. I
mean as I look at this, you know I’ve asked about the driveway. It was kind of surprising when I
read the report and even the, Mr. Martin’s letter that the house and the driveway already
exceeded that. This is a standard lot in our city and I’ve always looked at this 25% relative to
our standard lots as a way to measure that and so you know, I think from a compromise
standpoint, but for changing the way we do something, and I don’t think we necessarily should
do that without investigating the ramifications of that, whether that’s the ordinance or some other
credit or something like that. You know the, if we hold them to the 25, as a council and deny the
variance, they’re going to have to reduce some of the driveway and take everything out. I mean
they’ve got some nice landscaping. The real issue is the sidewalk along the house to me and the
patio. Because of that nice retaining wall that they have around the front and landscaping, that’s
12 feet and probably wouldn’t show up. Likewise with the driveway. Having somebody take
100 feet off their driveway. It bothers me that a plan submitted and the permit was issued on,
and they expanded beyond that. That bothers me and to me I think that’s the fault of the builder
ultimately and the contractor but again as a property owner that should have control over that
process. I know that as you’re building houses, things change and there’s you know let’s move
this here. Let’s move this there so, so I find it difficult based upon what other residents have
done, both beforehand and Councilman Peterson, as you have said, even from an after the fact.
Where’s the affect? We’ve said no. We can’t, there should be a hardship there to justify the
variance. I don’t see it here. I think the, especially coming off the storm we had last week,
storm water runoff is an issue that we have to look at and make sure we manage and this is what
this is dealing with. It’s only 600 feet here. But what about the next one and the next one and
next one. Those are the longer term ones that I’m concerned about by going forward. I’d like to
see another alternative. Councilman Lundquist had a good one and that’s increasing the lot size
somehow so that the current improvements reduces a percentage overall.
Councilman Peterson: Well, and to Roger’s point. I mean I’m not adverse to that either because
the 25%, it’s a bit squishy in that, I’ve got to set an example but we wouldn’t have allowed a
structure, a paver, I mean a wood or a structure patio and now with current technology you put
those not wood ones right up against each other. That forms an impervious surface just equal to
a paver patio because they don’t separate those. They put them, they butt them right up against
each other so water is going totally off versus even seeping into the pavers so I question whether
or not we could even in good conscience say you can put a structure like that on there too. So I
mean there’s, yeah I think there’s some things that we can do. Whether or not it will work, some
kind of feature that’s going to be better. If we see the water is going, whether it’s the front of the
lot or the back of the lot and put in some kind of water garden or whatever that would be that
would act better than grass, then you’re gaining something. I don’t know. At the end of the day
I just, and maybe I’m over reacting because we’ve had 2 or 3 of those in the last year but you
know I think that we need to update this or at least look at it and talk about the ramifications of
25% and what are the different options that people can do.
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City Council Meeting – September 12, 2005
Mayor Furlong: Well and in response to that, if there are right now staff is interpreting our
ordinance, where certain things are 100% impervious and other things are 100% pervious.
Obviously the more black and white the ordinance is, the easier it is for residents to know what
the rules are and the easier it is for staff to interpret those rules and to apply them because every
day is different. So try to keep that but I think we’re reviewing our storm water management
plan right now. I know I’m going to be interested in getting an update on that later this evening
as we talk about it. Given the event of last week, and this may be a time to incorporate that in
there as well. So I guess the question is, do we defer the decision on this until that discussion
can be had or do we move forward tonight not knowing the length of time it will take to do that
and to make some decision as to whether we want to make any changes there or not. And our
ramifications if you change the hard surface coverage I assume in terms of our storm water
management plan and the capacity and volume and such like that. And I’m assuming all that
goes into the engineering studies and the equations for that. I see heads going up and down so let
the minutes reflect that is correct.
Councilwoman Tjornhom: Mr. Mayor.
Mayor Furlong: Yes.
Councilwoman Tjornhom: Being on Planning Commission this has come up a couple times in
the years that I, not long but some of the years I was on the Planning Commission. My biggest
beef with this is residents come in and say we asked what we were supposed to do. They said
nothing and so you know we tried and we tried. And when they come in and they ask whoever is
across the counter, you know do I need a permit for this patio and they said no. And then as an
average citizen I wouldn’t then go onto know to ask well, how about hard surface coverage and
how about this and that because I’m not thinking that way. I’m just thinking oh good, I can get
the permit. But we still I don’t think have a sheet that we go oh look it. They want to do a deck
or a patio here. Look at this. You know here are the check off’s you have to cover before you
go ahead and do this. I guess that’s my biggest beef with this is that it is hard to know what
you’re supposed to do if you don’t know what you’re supposed to do. And if they did come in 3
times and tried to do the right thing and they went and thought they did the right thing, I guess I
have a hard time telling them now to undo what they thought they had done right the first time.
We don’t have one of those lists yet do we?
Kate Aanenson: Yes we do, as a matter of fact. I’m not going to get into the he said, she said.
What conversations…
Councilwoman Tjornhom: Right, exactly.
Kate Aanenson: I’m sympathetic to them. You know the first issue was the sidewalk not being
to the driveway. That’s one thing I think, that’s one error that I think is very obvious that we
missed. There should have been a driveway, a sidewalk connecting the front porch to the
driveway. In my mind that was an error on our part not to because that’s always standard that we
would check that. But as far as the conversations that were, you go to 3 different departments.
Each department gives their information and sometimes you ask the question to get the answer
you want too, so you know, and I’m not dismissing that sometimes people don’t probe further in
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City Council Meeting – September 12, 2005
that specific division. If you went to building…no, they’d say talk to planning…We do have
handouts. We now require all impervious to be shown on the original permit. That’s been done
for a number of years so we have corrected those issues. We’re always going to have people
asking for variances… Things happen you know.
Councilman Lundquist: Mr. Mayor, I would move that we table this issue to give the applicant
and staff a chance to consider other alternatives and I think they’ve got some opinions and
thoughts about you know some kind of direction to what we might be looking for given the
chance to do that before we make a hard and fast decision and bind them to something that there
might be another alternative to.
Mayor Furlong: Okay. Motion’s been made. Mr. Knutson.
Roger Knutson: …know the time line issue.
Mayor Furlong: That was going to be my question so.
Kate Aanenson: They asked if they can get an extension.
Mayor Furlong: We need an extension in writing from them.
Kate Aanenson: They’re fine with that.
Mayor Furlong: Can we get that tonight?
Larry Martin: Yes.
Mayor Furlong: Do you want to write something up? Do we need to get that? What is the
timeframe here?
Kate Aanenson: I believe it was…tomorrow.
Mayor Furlong: Tomorrow, so we should get something now. Mr. Lundquist, if that’s okay.
Councilman Lundquist: Absolutely.
Mayor Furlong: Before we consider your motion. First, let me ask if there’s a second to
Councilman Lundquist’s motion.
Councilwoman Tjornhom: Second.
Mayor Furlong: It’s been seconded so we’re in discussing the motion now at this time. Is there
any discussion on this motion? Actually a motion to table. We’ll hold off discussion.
Councilman Peterson: We can talk about the table.
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City Council Meeting – September 12, 2005
Roger Knutson: I’m satisfied they’re going to sign it.
Mayor Furlong: Very good. There you go. I like the parliamentary order. The motion’s been
made to table. It’s been seconded to give staff and the applicant time to work out some
alternatives, given the comments this evening.
Councilman Lundquist moved, Councilwoman Tjornhom seconded to table Planning Case
th
#05-18, hard cover variance request for Troy and Virginia Kakacek at 380 West 86 Street
in order to give staff and the applicant time to explore alternative solutions. All voted in
favor and the motion carried unanimously with a vote of 4 to 0.
MARIANNE MCCORD & DAVID SANFORD, 6440 FOX PATH, PLANNING CASE 05-
22, WETLAND ALTERATION PERMIT TO CONSTRUCT A WALKWAY AND DOCK.
Public Present:
Name Address
David Sanford 6440 Fox Path
Michael P. & Debbie Haydock 6460 Fox Path
Mary Hoffman 6470 Fox Path
Tom & Sue Huberty 6450 Fox Path
Terry Vogt 732 Lake Point
Charles Brown 1439 Tennessee, Minneapolis
Tom Meier 695 Pleasant View Road
Lori Haak: Thank you Mayor Furlong and council members. As the mayor indicated this is an
application for the wetland alteration permit at 6440 Fox Path, which is Lot 9, Block 1, Fox
Chase Subdivision. The applicant is for the construction of a dock through a wetland area to
access Lotus Lake. You can see the subject property on the map. On the north side of the lake is
Pleasant View Road. Just off the west side of, or the left side of the paper is Powers Boulevard
so just to orient folks. Typically wetland alteration permits that we see here are straight forward.
However as is quite common with a planned unit development such as this one, a conservation
easement has been recorded on several of these properties. The conservation easement covers all
of the land within the subdivision below 900 feet which is shown on one of our other
attachments. There’s one, sorry. Okay, pull it down. The conservation easement, the 900 foot
elevation is shown in green on this survey. And the ordinary high water mark for Lotus Lake
which is 896. Actually this is the 896 contour. It’s not actually the ordinary high water mark, is
shown in blue on that plan sheet there. As I indicated the conservation easement covers all the
land below 900 feet and encumbers parts of Lot 7 through 19. And again the subject property is
Lot 9, which is indicated in orange. The easement prohibits docks except on Lots 16 through 19
which are on the southern part or the bottom part of the plan. Lot 16 has a dock that’s shared by
7 properties. Lots 10 through 16, and that’s basically the lots south of the subject property and
the next 6 lots. So there’s a shared dock that is used by 7 property owners, and then Lots 17, 18,
and 19, which are the final 3 lots there, each have their own docks and if we can pull up the
aerial photo I believe we can see why. The wetland, actually if you orient it so north is at the
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