HomeMy WebLinkAbout7(A) 3800 Green Heights Variance Appeal CC Report
Phone 952.447.9800 / Fax 952.447.4245 / www.cityofpriorlake.com
4646 Dakota Street SE
Prior Lake, MN 55372
CITY COUNCIL AGENDA REPORT
MEETING DATE: MAY 20, 2019
AGENDA #: 7A
PREPARED BY: JEFF MATZKE, PLANNER
PRESENTED BY: JEFF MATZKE
AGENDA ITEM:
HEARING TO CONSIDER AN APPEAL OF THE DENIAL OF A VARIANCE FROM
THE MINIMUM REAR YARD SETBACK AND MAXIMUM IMPERVIOUS
SURFACE FOR A PROPERTY IN THE R-1 (LOW DENSITY RESIDENTIAL)
ZONING DISTRICT
GOAL AREA AND
OBJECTIVE:
Desirable and Sustainable Development
4. Encourage development and preservation of quality life-cycle residential housing
options.
DISCUSSION: Introduction
Scott Thielen owns the property at 3800 Green Heights Trail SW and requested
variances from the minimum rear yard setback and maximum impervious surface
requirement to construct a new dwelling on a single-family residence. The property
is located along the eastern shores of Upper Prior Lake, south of Dunkirk Avenue.
The following variances were requested:
• A 6.9-foot variance from the required minimum 25-foot rear yard setback
(Section 1102.405 (3))
• A 7.5% variance from the required maximum impervious surface (Section
1104.306)
Regulation Requirement Proposed Variance
Rear yard Setback (Minimum) 25’ 18.1’ 6.9’
Impervious Surface (Maximum) 30% 37.5% 7.5%
History
The Planning Commission held a public hearing on March 25, 2019. The applicant
and a neighboring property owner spoke during the public hearing. The Planning
Commission deliberated on the request and voted to deny the variances, asking that
City Staff prepare a resolution of denial based on their findings to be brought to a
future Planning Commission meeting for review. On April 22, 2019 the Planning
Commission approved a resolution to deny the variance requests based on findings
of fact. The applicant submitted an appeal of the Planning Commission’s decision
to City Staff on April 25, 2019 along with a narrative, copy of Scott County court
documents, and Planning Commission documents.
Current Circumstances
The property is zoned R-1 (Low Density Residential) and is guided R-LD (Urban
Low Density) on the 2030 Comprehensive Plan Land Use Map. The property is in
the Shoreland Overlay District of Upper Prior Lake. The property is 12,400 square
feet in size with a single-family residence. The applicant was requesting to demolish
and replace the existing dwelling.
Rear Yard Setback: Generally, lakeshore properties do not have difficulty meeting
the required 25-foot rear yard setback since, in many cases, the rear property line
is near or coincides with the ordinary high water mark of Prior Lake (904 elevation)
and the minimum lake setback requirement is 50-75 feet. In this case however, the
rear property line is 40-45 feet from the lakeshore. Therefore, the rear yard setback
from the proposed deck to the rear property line is 18.1 feet.
Impervious Surface: Subsection 1104.306 lists the maximum impervious surface
requirement for properties in the shoreland as 30% of the total lot area. The lot area
of 3800 Green Heights Trail is 12,400 square feet since the waterfront area near the
lake is not exclusively owned by the property owner. The proposed construction
would constitute 37.5% of the total lot area (a 7.5% variance request). However, if
the area of the “waterfront” were included in the calculation the total lot area (16,270
square feet in total) the impervious surface amount would be 28.5%.
The applicant submitted a court order from 1999 which details property owner’s
testimony as to the use and care of the “waterfront” area. As a result of the court
order, the lake lot owners were directed to care for the waterfront area adjacent to
their lots.
City Staff and City Attorney have reviewed the appeal application materials and the
City Attorney has prepared a response to the applicant’s narrative arguments in the
attached memorandum.
ISSUES: Per the appeal process the City Council should review the actions by the Planning
Commission to deny the variances and decide to affirm or reverse the decision of
the Planning Commission. The City Council should review the series of attachments
to this report as part of their judgement on the issue.
FINANCIAL
IMPACT:
No financial impact is anticipated as a result of this action.
ALTERNATIVES: 1. Motion and a second to approve a resolution affirming the variances denied by
the Planning Commission for 3800 Green Heights Trail SW.
2. Motion and a second to approve or amend the variance that is being appealed.
3. Motion and a second to table this item and request staff to provide additional
information as identified by the City Council.
RECOMMENDED
MOTION:
Alternative #1
ATTACHMENTS:
1. Location Map
2. March 25, 2019 Planning Commission Report (including attachments)
3. March 25, 2019 Planning Commission Minutes
4. April 22, 2019 Planning Commission Minutes
5. Planning Commission Resolution (denying variance request)
6. Application Narrative
7. May 8, 2019 City Attorney Response Memorandum
4646 Dakota Street SE
Prior Lake, MN 55372
RESOLUTION 19-XXX
RESOLUTION TO AFFIRM THE DECISION OF THE PLANNING COMMISSION TO DENY
VARIANCES FROM THE MINIMUM REAR YARD SETBACK AND MAXIMUM IMPERVIOUS
SURFACE REQUIREMENT AT 3800 GREEN HEIGHTS TRAIL SW
Motion By: Second By:
WHEREAS, Scott Thielen, the property owner, requested variances from the minimum rear yard
setback and maximum impervious surface to construct a new single family
residential dwelling on a property in the R-1(Low Density Residential) Zoning District
at the following described property;
3800 Green Heights Trail SW , Prior Lake, MN 55372
Lots 3 and 4, Green Heights
(PID 250940030)
WHEREAS, The Planning Commission, acting as the Board of Adjustment, reviewed the
application for the variance as contained in Case #DEV19-000007, held a public
hearing thereon March 25, 2019, and continued their discussion of the item on April
22, 2019; and
WHEREAS, The Planning Commission concluded the variances were not consistent with the
criteria set forth in Section 1108.406 of the Zoning Ordinance, and denied the
variances on April 22, 2019; and
WHEREAS, Scott Thielen, the property owner of the subject property, appealed the decision of
the Planning Commission to the City Council; and
WHEREAS, The City Council reviewed the appeal of the Planning Commission’s decision, and
the information contained in Case #DEV19-000007, and held a hearing thereon on
May 20, 2019.
NOW THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE,
MINNESOTA as follows:
1. The recitals set forth above are incorporated herein.
2. The City Council makes the following findings:
a. The decision of the Planning Commission was properly and timely appealed in
accordance with Section 1108.409 of the City Code.
b. A practical difficulty does not exist on the property for the requested variances.
The 12,400 square foot lot size and the width of the property is adequate for a
reasonable house design which would meet the 25-foot minimum rear yard
setback and maximum impervious surface of the lot (30% of the total lot area). It
is the design elevation and large foot print of the proposed house relating to the
size of the lot that is creating the need for the variances. The desire for a large
house is not a practical difficulty. A house can be built on the lot within the setbacks
and impervious surface requirements and still be quite a substantial structure.
c. The purpose of the setback and impervious surface regulations is to protect
abutting property from encroachments, to keep structures an appropriate distance
from the lake, and to protect the surface water by retaining pervious surface
especially near the lake. The granting of variances to allow additional impervious
surface and encroachment into setbacks is not in harmony with this purpose.
d. A reasonable house design could be constructed within the 30% impervious
surface maximum requirement and minimum rear yard setback requirement at
3800 Green Heights Trail SW. The lot size is 12,400 square feet which is
comparable in size and in fact larger than many lakeshore lots within the City. The
size of the lot is not unique within the City. Several homes have been built in the
City on similar lots, are conforming, and maintain a generous structure. A main
floor master bedroom and third stall garage are mere conveniences.
e. The purpose of the setback and impervious surface regulations is to protect
abutting property from encroachments, to keep structures an appropriate distance
from the lake, and to protect the surface water by retaining pervious surface
especially near the lake. The granting of variances to allow additional impervious
surface and encroachment into setbacks would be detrimental to the health and
welfare of the public especially relating to surface water protection.
f. The impervious surface variance and rear yard setback variance would allow
construction of a residential dwelling which is an allowed use within the R-1 (Low
Density Residential) Zoning District.
3. The contents of Planning Case #DEV19-000007 are hereby entered into and made a part
of the public record and the record of decision for this case.
4. Based upon the Findings set forth above, the City Council hereby affirms the decision of
the Planning Commission to deny the following variances:
a. A 6.9-foot variance from the required minimum 25-foot rear yard setback (Section
1102.405 (3))
b. A 7.5% variance from the required maximum impervious surface (Section
1104.306)
Passed and adopted by the Prior Lake City Council this 20th day of May 2019.
VOTE Briggs Thompson Burkart Braid Erickson
Aye ☐ ☐ ☐ ☐ ☐
Nay ☐ ☐ ☐ ☐ ☐
Abstain ☐ ☐ ☐ ☐ ☐
Absent ☐ ☐ ☐ ☐ ☐
______________________________
Michael Plante, City Manager
GREEN HEIGHTS TRL SW
R O O S E V E L T S T S W
RAMSEY AV SWINGUADONA BEACH CIR SWUpper Prior Lake
Scott County GIS
Ü
3800 Green Heights Trail SWVariancesLocation Map
UPPER PRIOR LAKE
GD(904)
SPRING LAKE
GD(912.8)
BLIND
LAKERD
(948.7)
ARTIC
LAKENE
(906.7)
MARKLEY
LAKERD
( )
HOWARD LAKE
NE(957.3)
CRYSTAL LAKE
NE(943.3)
Spring Lake
Upper Prior Lake
Scott County GIS
SUBJECTPROPERTY
SUBJECTPROPERTY
4646 Dakota Street SE
Prior Lake, MN 55372
PLANNING COMMISSION AGENDA REPORT
MEETING DATE: MARCH 25, 2019
AGENDA #: 4A
PREPARED BY:
PRESENTED BY:
JEFF MATZKE, PLANNER
JEFF MATZKE
AGENDA ITEM: PUBLIC HEARING TO CONSIDER VARIANCE REQUESTS FROM THE MINI-
MUM REAR YARD SETBACK AND MAXIMUM IMPERVIOUS SURFACE RE-
QUIREMENT ON A PROPERTY IN THE R-1 SD (LOW DENSITY RESIDEN-
TIAL SHORELAND) ZONING DISTRICT
DISCUSSION: Introduction
Scott Theilen owns the property at 3800 Green Heights Trail SE and is requesting
variances from the minimum rear yard setback and maximum impervious surface
requirement to construct a new dwelling on a single-family residence. The prop-
erty is located along the eastern shores of Upper Prior Lake, south of Dunkirk
Avenue. The following variances are requested:
A 6.9-foot variance from the required minimum 25-foot rear yard setback
(Section 1102.405 (3))
A 7.5% variance from the required maximum impervious surface (Section
1104.306)
Regulation Requirement Proposed Variance
Rear yard Setback (Minimum) 25’ 18.1’ 6.9’
Impervious Surface (Maximum) 30% 36.9% 6.9%
History
The property is zoned R-1 (Low Density Residential), and is guided R-LD (Urban
Low Density) on the 2030 Comprehensive Plan Land Use Map. The property is
in the Shoreland Overlay District of Upper Prior Lake.
Current Circumstances
The property is 12,400 square feet in size with a single-family residence. The
applicant is requesting to demolish and replace the existing dwelling.
Rear Yard Setback: Generally, lakeshore properties do not have difficulty meet-
ing the required 25-foot rear yard setback since, in many cases, the rear property
line is near or coincides with the ordinary high water mark of Prior Lake (904
elevation) and the minimum lake setback requirement is 50-75 feet. In this case
however, the rear property line is 40-45 feet from the lakeshore. Therefore, the
rear yard setback from the proposed deck to the rear property line is 18.1 feet.
The proposed lake setback is 56 feet which will meet the ordinance requirement
using the average lake setback of adjacent properties.
March 25, 2019 Planning Commission Report
2
Impervious Surface: Subsection 1104.306 lists the maximum impervious sur-
face requirement for properties in the shoreland as 30% of the total lot area. The
lot area of 3800 Green Heights Trail is 12,400 square feet since the waterfront
area near the lake is not exclusively owned by the property owner. The proposed
construction would constitute 36.9% of the total lot area (a 36.9% variance re-
quest). However, if the area of the “waterfront” were included in the calculation
the total lot area (16,270 square feet in total) the impervious surface amount
would be 28.1% of the total area.
The applicant has submitted a court order from 1999 which details property
owner’s testimony as to the use and care of the “waterfront” area. As a result of
the court order, the lake lot owners were directed to care for the waterfront area
adjacent to their lots. The City Attorney has reviewed the court order and pre-
pared a memorandum (see attached) explaining the situation.
Conclusion
City Staff believes that the variance request for the rear yard setback is warranted
since the placement of the proposed dwelling in respect to the lake setback is in
character with other dwellings of the neighborhood. As identified in the attached
City Attorney memorandum City Staff believes the Planning Commission has the
option to approve or deny the impervious surface variance request based on the
opinion of ownership of the waterfront area.
As mentioned in the City Attorney memorandum, the City Staff is prepared to
draft a resolution of approval/denial based on the findings of the Planning Com-
mission. If the Planning Commission chooses to approve the variances, City Staff
recommends the following conditions be met:
The variance resolution shall be recorded at Scott County.
A Building Permit shall be obtained from the Building Department prior to the
commencement of construction.
ISSUES: This project includes a request for variances. Section 1108.400 states that the
Board of Adjustment may grant a variance from the strict application of the provi-
sions of the Zoning Ordinance, provided that:
(1) There are practical difficulties in complying with the strict terms of
the Ordinance. “Practical difficulties,” as used in connection with the
granting of a Variance, means the property owner proposes to use
the property in a reasonable manner not permitted by the Zoning
Ordinance. Economic considerations alone do not constitute
practical difficulties.
There are practical difficulties in complying with the strict terms of the Or-
dinance in regards to the rear yard setback. While the rear yard setback of
25 feet is not met, the typical lake setback of the property will meet the City
requirement.
(2) The granting of the Variances are in harmony with the general
purposes and intent of the City Subdivision and Zoning Ordinances
and the Comprehensive Plan.
March 25, 2019 Planning Commission Report
3
The granting of the rear yard variance appears to be in harmony with the
general purposes of the Ordinance and Comprehensive Plan. A purpose
of the Zoning Ordinance is to “Promote the most appropriate and orderly
development of the residential, business, industrial, public land, and public
areas”. Furthermore, the Shoreland Ordinance (Section 1104) policy’s in-
tent is “in the best interests of the public health, safety, and welfare to pro-
vide for the wise development of shoreland of public waters.” The pro-
posed dwelling’s placement on the lot in relation to the rear yard is in har-
mony with these purposes and policies.
(3) The practical difficulty is due to circumstances unique to the property
not resulting from actions of the owners of the property and is not a
mere convenience to the property owner and applicant.
The proximity of the rear yard property line to the proposed dwelling is
unique. The dwelling will meet the required minimum lake setback of more
than 55.5 feet.
(4) The granting of the variances will not alter the essential character of
the neighborhood or be detrimental to the health and safety of the
public welfare.
The placement of the proposed dwelling in respect to the lake setback is in
character with other dwellings of the neighborhood.
(5) The granting of the Variances will not result in allowing any use of the
property that is not permitted in the zoning district where the subject
property is located.
The requested variances would allow the construction of a single-family
residential dwelling which is an allowed use within the R-1 SD (Low Density
Residential in Shoreland) Zoning District.
ALTERNATIVES: 1. Motion and a second directing City Staff prepare a resolution approving the
variances requested for 3800 Green Heights Trail with the listed conditions or
approve any variance the Planning Commission deems appropriate in the cir-
cumstances.
2. Motion and a second to table or continue discussion of the item for specific
purpose as directed by the Planning Commission.
3. Motion and a second directing City Staff to prepare a resolution denying the
variances requested because the Planning Commission finds a lack of
demonstrated practical difficulties under the zoning code criteria.
ATTACHMENTS: 1.Location Map
2.1928 Green Heights Plat
3.Survey Dated 3-20-19
4.Conceptual Building Plans dated 2-12-19
5.1999 Court Order
6.City Attorney Memorandum
7.Narrative from Applicant
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WAYZATA, MN 55391
401 EAST LAKE STREET
FAX: 952.473.8222
Phone: 952.473.8777
March 25, 2019 Planning Commission Report
ØWAYZATA, MN 55391
401 EAST LAKE STREET
FAX: 952.473.8222
Phone: 952.473.8777
March 25, 2019 Planning Commission Report
±±
WAYZATA, MN 55391
401 EAST LAKE STREET
FAX: 952.473.8222
Phone: 952.473.8777
March 25, 2019 Planning Commission Report
WAYZATA, MN 55391
401 EAST LAKE STREET
FAX: 952.473.8222
Phone: 952.473.8777
March 25, 2019 Planning Commission Report
±±
±
WAYZATA, MN 55391
401 EAST LAKE STREET
FAX: 952.473.8222
Phone: 952.473.8777
March 25, 2019 Planning Commission Report
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Sarah Schwarzhoff | Of Counsel | 952.746.2713 | sschwarzhoff@hoffbarry.com
Hoff Barry, P.A. | 775 Prairie Center Drive, Suite 160 | Eden Prairie, Minnesota 55344 | hoffbarry.com | 952.941.9220
MEMORANDUM
To: Planning Commission
From: Sarah Schwarzhoff, City Attorney
Date: March 5, 2019
Re: Green Heights Waterfront
The Planning Commission has received a variance request from a property owner in the Green Heights
subdivision. The property owner is requesting that he be permitted to include the “waterfront” between
his property and the lake, as part of his lot area.
The City has numerous plats that include “waterfront” areas which are areas between the lake and the
lakeshore lots (because of the waterfront the lakeshore lots do not actually abut the lake but I will refer
to them in this manner throughout the memo to distinguish these lots from the back lots). The waterfronts
are generally dedicated on the plat for the use and enjoyment of all the lot owners. This means that a
strip of land between the lakeshore lots and the lake are commonly owned by all lot owners within the
plat.
These waterfront areas are often a source of dispute between the lakeshore lot owners who prefer to
treat the waterfront as part of their property and the back lot owners who prefer to use the waterfront
as a common area. In addition, often these plats are fairly old and as such are not accompanied by
declarations or home owners associations to regulate the use of the waterfronts.
Current City policy is to treat all such waterfronts as common area. This means lakeshore lot owners
cannot count the waterfront area as part of their lot because the waterfront is commonly owned. This can
make a difference for calculations related to size of the lot such as impervious surface. When questioned,
City staff has consistently informed residents that absent a court order or written agreement of all the lot
owners the City will continue to consider the waterfronts as commonly owned property.
Green Heights was platted in 1928 with such a waterfront. However, in 1999 several of the lakeshore lot
owners filed a lawsuit in Scott County Court seeking to claim ownership of the waterfront. The Court
performed an extensive analysis of the history of the use and ownership of the lots and waterfront and
denied the lakeshore lot owners claims of ownership. The Court found that the waterfront was properly
dedicated to all the lot owners and that the lakeshore lot owners had not proven that they had obtained
legal ownership.
March 25, 2019 Planning Commission Report
Hoff Barry, P.A. | 775 Prairie Center Drive, Suite 160 | Eden Prairie, Minnesota 55344 | hoffbarry.com | 952.941.9220
However, as part of the Court order a “Declaration of Rights” relating to the waterfront and two related
access aisles were agreed to by the lot owners and incorporated into the Court order.
The property owners agreed that the back lot owners would have exclusive use of the access aisles and
could install one straight dock at the end of each access aisle. The back lot owners were also responsible
for maintenance of the access aisles. Use and maintenance of the access aisles was to be regulated by
majority vote of the back lot owners.
The property owners also agreed that the lakeshore lot owners would have the exclusive right to place
docks, boat lifts and fire rings on the waterfront adjacent to their lots and that the lakeshore lot owners
would have the sole obligation to maintain the waterfront adjacent to their lot.
There was no finding of ownership and the back lot owners were not prohibited from using the waterfront,
but the lakeshore lot owners were granted exclusive rights to install structures/docks and the obligation
to maintain the waterfront.
Had ownership of the waterfront been decided, had the court held that the lakeshore lot owners also
owned the abutting waterfront, the City would consider the waterfront area as part of the lakeshore lot
and no variance would be required.
Had no declaration been made by the lot owners, the City would continue to consider the waterfront to
be commonly owned and thus not part of the lakeshore lot.
Instead, Green Heights is a middle ground where lakeshore lot owners do not own the waterfront but do
have some exclusive rights to it and have the obligation to maintain it. Therefore, it is reasonable for the
Planning Commission to either approve or deny the variance. The Planning Commission can find that
because ownership was not determined, and the waterfront is still commonly owned, the waterfront
cannot be counted toward the lakeshore lot area. Or the Planning Commission can find that because the
lakeshore lot owners have some exclusive rights to the waterfront and have the obligation to maintain it
that the waterfront can be counted toward the lakeshore lot area. Once the Planning Commission has
made findings based on the public hearing, staff can bring back a resolution containing those findings.
Staff does recommend that the City continue to handle waterfront issues on a case by case basis through
the variance process due to the numerous factors involved in each case.
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1
PRIOR LAKE PLANNING COMMISSION MINUTES
Monday, March 25, 2019
1. Call to Order and Pledge of Allegiance:
Commissioner Fleming called the Monday, March 25, 2019 Prior Lake Planning Commission meeting to
order at 6:00 p.m. Those present were Commissioners Bryan Fleming, William Kallberg, Dan Ringstad,
Jason Tschetter and Liaison Zach Braid; Absent was Dave Tieman. Also present were Community
Development Director Casey McCabe, City Planner Jeff Matzke and Community Development Services
Assistant Sandra Peppin.
2. Approval of Agenda:
MOTION BY TSCHETTER, SECONDED BY KALLBERG TO APPROVE THE MONDAY, MARCH 25,
2019 PRIOR LAKE PLANNING COMMISSION AGENDA.
VOTE: Ayes by Fleming, Kallberg, Tschetter and Ringstad. Absent Tieman. The Motion carried.
3. Approval of Monday, February 25, 2019 Meeting Minutes:
MOTION BY TSCHETTER, SECONDED BY RINGSTAD TO APPROVE THE MONDAY, FEBRUARY
25, 2019 PRIOR LAKE PLANNING COMMISSION MEETING MINUTES.
VOTE: Ayes by Fleming, Kallberg, Tschetter and Ringstad. Absent Tieman. The Motion carried.
4. Public Hearings:
A. PDEV19-000007 – 3800 Green Heights Trail SW – Variances – The homeowner, Scott Thielen,
is requesting variances from the minimum rear setback and maximum impervious surface
requirements located at a property in the R1-SD, Low Density Residential Shoreland Zoning
District. PID: 250940030.
Planner Matzke: Introduced a public hearing to consider a resolution for a variance request from
the minimum rear yard setback and maximum impervious surface requirement on a property in
the R-1 SD (Low Density Residential Shoreland) Zoning District. He explained the history, current
circumstances, issues and recommended a motion. He presented a location map, 1928 Green
Heights Plat, Survey Dated March 20, 2019, Conceptual Building Plans dated February 12, 2019,
1999 Court Order, City Attorney Memorandum and Narrative from Applicant.
Commission Comments/Questions:
Fleming: Commented on the 1999 court trial and the outcome of the trial and questioned if the
other seventeen plats in the community have undergone any litigation or scrutiny.
Planner Matzke: Replied per Staff’s understanding there has not. He explained why this situation
started, the 1999 court case including the findings, common area with the additional task,
obligation of maintain and sole exclusion of docks.
Fleming: Expressed that he struggles with the differences between unique circumstances and
hardships on this application. He said the design elevation and foot print of the proposed home
are creating the impervious surface need.
Planner Matzke: Said the proposed home is already over the thirty percent impervious surface
with using just the property in itself; however, the proposal is based on the additional obligation
of maintenance of the waterfront area.
Fleming: Asked if there were any hard surfaces in the extended area on the lake.
Planner Matzke: Explaining a small shed that has been down by the lake for years is maintained
and utilized by Mr. Thielen. He explained the allowances per the court order for structures on this
waterfront property and stated the waterfront area does not have identified impervious surface.
Fleming: Asked if it was minimal hard surface on the waterfront area?
March 25, 2019 Planning Commission Meeting Minutes
2
Planner Matzke: Responded yes, minimal hard surface on the waterfront area.
Kallberg: Asked questions about the setbacks for the house to the east side of the applicant’s
property, when the house was constructed, and if this current project setback came into play due
to the property to the east.
Planner Matzke: Replied yes it does come into play from the house to the east and explained
how averaging in setbacks work with the neighboring homes.
Kallberg: Mentioned he has the same struggle as Chairman Fleming regarding the size of the
footprint relative to the size of the lot. He commented on the home still being constructed with
the property setback of at least 25 feet and still be quite a substantial structure.
Fleming: Asked Planner Matzke to describe any communications he had with the property
owners in respect to any efforts or thoughts on how to reduce the size of the proposed home.
Planner Matzke: Explained meeting with Mr. Thielen and his architect as well as conversation
regarding their design. He commented on Green Heights Trail being a private road/drive area,
not as wide as typical streets, lack of parking, and the fact that driveways are larger than typical
driveways in this neighborhood, which adds to impervious surface area. He pointed out some of
the efforts the applicant is making to reduce hard surfaces such as reduction in the driveway,
sidewalk, and patio areas and explained what the impervious surface once was and the steps the
applicant made to decrease that amount after conversations with City Staff.
Ringstad: Questioned what the common area means and if this allows someone in the
neighborhood to be able to conceivably enjoy the common area without owning the property.
Planner Matzke: Explained the common area designation, how this area was designed by a court
order to allow for a clearer understanding of use. Explained the different types of general common
areas, how this waterfront area was defined on the original plat, how the decree of exclusive rights
were made by the judge in this court order situation for the lakeshore owners for Green Heights
waterfront area.
Ringstad: Asked what the phrase “need to maintain” meant in the court order and is it up to the
association if somebody is not maintaining the shoreline.
Planner Matzke: Explained City’s actions with a property maintenance issue and referenced the
included City Attorney memorandum on this situation of maintaining the shoreline. He gave
examples of how the situation would be handled with a general waterfront property owner.
Ringstad: questioned if all the owners on the waterfront get to enjoy the use without paying taxes.
Planner Matzke: Stated he has not advised upon the taxation department as to the valuation of
the waterfront area.
Ringstad: Said 12,400 square feet is what they are technically paying taxes on.
Planner Matzke: Explained how the Scott County Taxation Department generally bases the
valuation of property on length of lakeshore ownership as well as property square footage. He
explained how the waterfront area is not a parcel and does not have a PID number.
Ringstad: Commented on creating a precedent. He said he does not recall a project like this one
prior and stated the report on this lot was interesting reading.
Tschetter: Asked what the minimum square footage for a legal conforming lot in Prior Lake is.
Planner Matzke: Replied the minimum square footage for a riparian lot is 15,000 square feet and
the minimum square footage for a non-riparian lot is 12,000 square feet.
Tschetter: Commented on looking for a PID number on the Scott County GIS and did not find
one for the waterfront property. He asked what the existing home rear lot line setback was.
Planner Matzke: Replied it is greater than 25 feet. He commented on the existing home setbacks
versus the proposed home setbacks; stating, that the new home would be more conforming in
regards to impervious surface and side yard setback.
Tschetter: Verified that the existing home does not conform to the 10-foot side yard setbacks;
however, does conform to the rear yard setback.
Planner Matzke: Replied correct.
Tschetter: Said but, it does not conform to the impervious surface, even though they are slightly
reducing impervious surface.
Planner Matzke: Replied correct, yes. The existing home is at 41.5% hard cover of the 12,400
square foot lot.
March 25, 2019 Planning Commission Meeting Minutes
3
Tschetter: Said he is struggling with the practical difficulties due to having several homes built in
the City that are on conforming lots and are able to maintain a generous structure with still
conforming to setbacks and impervious surface. He gave an example of the Boudins
Neighborhood with smaller lots that conform reasonably to the impervious surface with having a
reasonable driveway. He said he is looking forward to the applicant’s comments.
Applicant
Kristy Raasch: Stated she is with Alexander Design Group and is helping Mr. Thielen with the
design of his house.
Scott Thielen: Resides at, and is the owner of 3800 green heights Trail SW . He explained how
they got to this point of applying to be in front of the Planning Commissioners. He mentioned
confusion in talking with the City on allowances for being conforming, including setbacks and the
use of the waterfront due to a court decision. He mentioned reviewing plans, rules, and
remodeling plans with the City Staff. He said at that time it made more sense to design a new
home with less hard cover; however, the waterfront rules had seemed to change at this point. He
commented on the previous owners, what the beach is designated for, maintenance obligations
and dock allowances. He mentioned running into new rules and asked for consideration for this
variance.
Raasch: Explained why the design of the house is increasing in footprint and pointed out that
they did improve the setbacks.
Tschetter: Mentioned that it is his hopes that Mr. Thielen appreciates the significance in the
Commissioners struggle with the presence that they are setting as well as the consideration being
taken for his unique situation, as well as the challenges of interrupting a court order that makes
this plat a unique situation in the City as well as the State. He asked Mr. Thielen to help him
understand how the Commissioners can determine a practical difficulty in maintaining the rear
line setback, because that is the edge of the property line.
Thielen: Asked Planner Matzke what the minimum square footage for a non-lake front lot.
Planner Matzke: Stated a non-lake lot minimum is 12,000 square feet. Minimum lakefront lot is
15,000 square feet.
Thielen: Explained his hardship, meetings, increases in setbacks, changes for setbacks over a
duration of time when talking to City Staff and being blindsided by change.
Tschetter: Commented on the shifting interpretations and asked about neighbor HOA or
organized ownership on the property.
Thielen: Said he doesn’t know of a HOA or organized ownership for the Green Heights area. He
commented on the easement on the east side of them for owners of the back lots to walk down
to the lake and shared maintenance.
Tschetter: Replied he was speaking specifically about the waterfront area and having a HOA.
Thielen: Said there are no fees, no HOA’s or anything.
Tschetter: Said he is sympathetic to the back and forth that the applicant has been through and
the challenges they had in getting to this point and thanked the applicant for his time.
Ringstad: Asked about any thoughts in making the house smaller to allow for less impervious
surface.
Thielen: Replied they thought they were reducing impervious surface when they were designing
their home. He commented on instructions at the first meeting, how it changed when they
submitted for the preliminary plans, meetings, reductions in the size of the house, large sized
family needs and retirement.
Raasch: Explained the difficulties in meeting the 30 percent impervious surface due to the desire
to have a main floor master bedroom for retirement purposes. She commented on having a
driveway a decent size for visitors and guest to park as there is no parking on the street.
Thielen: Confirmed this good point, as the road is a one-way street.
Ringstad: Mentioned he has drove down the street stating it is narrow road and agreed on the
additional parking in the driveway. He reiterated that there is no parking otherwise the firetrucks
cannot get down the street.
March 25, 2019 Planning Commission Meeting Minutes
4
Kallberg: Asked if the flat area by the retaining wall parallel to the roadway is paved and if this
area is currently being used as guest parking.
Thielen: Replied yes Sir.
Kallberg: Questioned what would happen to that parking area when you build the new driveway.
He asked if that parking would then be gone and if this would result in less parking?
Thielen: Responded that they gain a garage which would add three parking stalls and there would
be two more parking spots in the driveway.
Kallberg: Said he didn’t read the court order; however, commented on the attorney memorandum
that noted the right to place structures in the waterfront area and the obligation to maintain this
area. He also commented on the use of the waterfront area and asked if it was part of the court
order.
Thielen: Replied he doesn’t have the paperwork with him; but, stated the court order is specific.
Kallberg: Mentioned the location of where the homeowners can put their docks and the
allowances in-between the two lot lines.
Thielen: Confirmed that Commission Kallberg’s comments were correct.
Fleming: Agreed; that location and allowance mentioned by Commissioner Kallberg is arcuate.
Kallberg: Questioned Commission Fleming if he read the court order and if he did, was it the
court order to specify restrictions on this area for non-waterfront residents.
Fleming: Commented on the court order, timeframe that has passed since the court order, our
City Attorney affirmation on ownership, his opinion on ownership rights, intensions of being
malicious or blindsiding the applicant, and stated for him it is simple as the footprint of the home
is creating the impervious surface issue and the setback issue. He said he appreciates the
improvement; however, still struggles with the size of the home. He suggested reimagining with
the architect to reduce the size of the house.
MOTION BY TSCHETTER, SECONDED BY KALLBERG TO OPEN THE PUBLIC HEARING ON
AGENDA ITEM 4A AT 6:47 P.M.
VOTE: Ayes by Fleming, Kallberg, Tschetter and Ringstad. Absent Tieman. The Motion carried.
Public Comment:
Ann Rieck: Resides at 3526 W illow Beach Street. She said her family owns the property to the
west at 3780 Green Heights Trail. She commented on no HOA or organized community in the
Green Heights area, renters, maintaining the property, narrow street, parking, and taxes
comparisons for back lot owners versus waterfront. She shared an example of a weekend parking
issue and asked about the street being redone.
Planner Matzke: Commented on talking with the Engineering Department regarding the Green
Heights Trail roadway/utility improvements and said it is included in the Capital Improvement
Program.
Rieck: Mentioned the road is private; however, the city has access to this road for the lift station.
Planner Matzke: Said correct and explained the easement access and the coordination with
residents for reconstruction of the pipes/roads.
Rieck: Suggested additional comments on the parking, water run-off and said on behalf of her
mom they have no objection to their neighbor’s request.
Lynn Danko: Resides at 3800 Green Heights Trail SW. She gave her relation to the applicant,
commented on the purchase of their home, the understanding that they could build, value into the
neighborhood, and her family size. She questioned why there is an issue with the size of their
proposed house when the neighborhood houses are relative in size.
Fleming: Respectively explained they are talking about this property and each property is
different. He commented on the practical difficulty in regard to the design of the home and having
the impervious surface too extreme.
Tschetter: Mentioned some concerns regarding the increase of the house footprint towards the
lot line, ambiguity and legal status of the waterfront property, confusion, feedback to the applicant
on legal status of the waterfront property, the Commissioner’s intentions, past precedence,
March 25, 2019 Planning Commission Meeting Minutes
5
improvements and questioned if there is enough parking with the impervious surface
improvements.
Ringstad: Mentioned a comment regarding value and said it is not about value, nor has it ever
been; rather, it is about impervious surface and commented on the negative outcome of turning
a blind eye to impervious surface.
Raasch: Gave an idea of reducing the home and increasing the driveway and asked if that would
have changed the Commissioners minds at all and questioned if it is all about hardcover and not
about setbacks.
Tschetter: Stated in his opinion only what he would like to see regarding this project; pointing out
optimizing the design to support the footprint of the home on the property, recognizing the setback
requirements, and the impervious surface requirements with considering practical difficulties such
as parking. He mentioned to the applicant, “Give us a story to share that shows good faith efforts
that comply with the City’s zoning requirements in developing an attractive valuable home that
enriches our community”.
Fleming: Mentioned comments made by Planner Matzke in efforts being made to reduce
impervious surface; however, didn’t hear about creativity to the footprint of the living space. He
invited the applicant to re-visit their plan at a future session/meeting with the Commissioners.
Raasch: Explained this application was based on the initial survey from the remodel meeting with
Planner Matzke. She commented on the main floor master being very important.
Kallberg: Emphasized on the reduction of impervious surface doesn’t change the setback and
commented on using lots to gain advantages and stated he agrees with Chairman Fleming on the
footprint of the house creating the problem more so than the impervious surface.
MOTION BY RINGSTAD, SECONDED BY TSCHETTER TO CLOSE THE PUBLIC HEARING ON ITEM
4A AT 6:59 P.M.
VOTE: Ayes by Fleming, Kallberg, Tschetter and Ringstad. Absent Tieman. The Motion carried.
Commission Comments/Questions:
Kallberg: Said the smaller footprint is desired and commented on how this would then meet the
setbacks and reduce the impervious surface, which would also allow a larger driveway.
Ringstad: Commented on the past variance requests having hardships with small garages, this
lot size in comparison to the house size and said while reduction in impervious surface is
admirable he believes a lot more can be done. He will not be supporting this agenda item tonight.
Tschetter: Commented on the set of restraints regarding construction on a lakeshore district. He
said he would echo Commissioner Ringstad’s comments regarding the lot being generously sized
and constraints need to be considered to develop a home that fits on this lot.
Fleming: Echoes the comments of his fellow Commissioners and stated the impervious surface
variance request is excessive. He said the request is not something he can support at this time;
however, he would like to table this agenda item, and have it come back to us as quickly as
possible. He commented on balance of property owner rights, comfort, vision and family, as well
as creating a precedent on intended consequences for the future. He said he looks forward to
seeing what reimagination or creativity that would come up with moving towards that thirty percent
requirement.
Ringstad: Asked Chairman Fleming and/or Staff regarding suggestion of tabling; would it make
more sense to deny this agenda item and look at a new proposal going forward.
Planner Matzke: Explained the options dependent on changes/direction that can be given to the
applicant to amend by tabling the decision to a future meeting or the Planning Commission could
consider a variance denial. He asked if the Staff and/or applicant could have some direction as to
whether there is some consideration for an approval of any variance. He said we need to take
the Planning Commission’s findings from tonight’s meeting to draft a resolution.
Kallberg: Explained the difference in a denial versus going to Council and suggested tabling to
be a better choice, allowing the applicant to improve the footprint design.
Fleming: Said he concurs.
March 25, 2019 Planning Commission Meeting Minutes
6
Tschetter: Said he agrees; however, no second public hearing on the same topic, and so if we
come back with an updated variance request and asked for Staff’s recommendation on the
appropriate course.
Planner Matzke: Explained it is up to the Planning Commission and he explained outcomes of
tabling versus denial. He said the Commission could ask the applicant what their ideas of making
changes would be before making action.
Ringstad: Asked if we denied tonight on the requests before us and the applicant came with a
new house plan with corrected items regarding comments that were brought up tonight, would
there be a brand-new public hearing on the new request.
Planner Matzke: Replied yes it would. It would be a new application and would increase
timeframes; whereas, in the event of a tabling of the decision the Planning Commission would not
have a public hearing and be able to have a meeting sooner.
Fleming: Recapped, stating a formal denial would lead to a new public hearing to consider a new
design.
Kallberg: Said tabling could do the same thing.
Fleming: Replied yes, if we specify that we are open to additional commentary from the public.
Mccabe: Commented on an open public hearing and notice to all neighbors.
Fleming: Said it feels better to table rather than deny. He said he is confident the applicant in
good faith will bring something back and would entertain additional commentary at that time.
MOTION BY KALLBERG TO TABLE DISCUSSION OF THE ITEM TO A FUTURE MEETING. A
SECOND WAS NOT RECEIVED. MOTION FAILED.
MOTION BY TSCHETTER, SECONDED BY RINGSTAD TO DIRECT CITY STAFF TO PREPARE A
RESOLUTION DENYING THE VARIANCES REQUESTED BASED ON THE EVIDENCE AND LACK OF
SUPPORT.
VOTE: Ayes by Fleming, Tschetter and Ringstad. Nay by Kallberg. Absent Tieman. The Motion carried.
5. Old Business:
No Old Business.
6. New Business:
Announcements:
• April 22, 2019
• No application for Planning Commission consideration on April 8, 2019; therefore, the next
meeting will be April 22, 2019.
Fleming: Asked of any updates on the work session held on Woodbury and any progress staff
has made.
McCabe: Explained that Staff has been active at the Capital working on legislation which would
allow the street fees to be statutory; allowed to be collected. He commented on this session not
having much traction; however, there is hope for next session. He said the Planning Commission
will have a joint Work Session with the City Council in May 2019.
Fleming: Thanked Staff for the great work that is done, working with homeowners and absorbing
the anxiety and disappointment.
7. Adjournment:
MOTION BY TSCHETTER, SECONDED BY RINGSTADTO ADJORN THE MONDAY, MARCH 25, 2019
PLANNING COMMISSION MEETING AT 7:15 P.M.
VOTE: Ayes by Fleming, Kallberg, Tschetter and Ringstad. Absent Tieman. The Motion carried.
Sandra Peppin, Community Development Services Assistant.
April 22, 2019 Planning Commission Meeting Minutes
7
5B) The board of Adjustment provide direction regarding the approval or denial of a variance for
the upper level deck from the patio door.
MOTION BY TSCHETTER, SECONDED BY RINGSTAD, TO TABLE THIS ITEM TO A FUTURE
PLANNING COMMISSION MEETING AND ENCOURAGED THE APPLICANT TO BRING BACK
ANOTHER PLAN.
VOTE: Ayes by Fleming, Tieman, Kallberg, Tschetter and Ringstad. The Motion carried.
C. Amendments – City Code Section 1108 of the Prior Lake City Code – Consider certain
amendments to the Prior Lake City Code Section 1108 of the Prior Lake City Code relating to the
voting requirements for zoning changes.
Director McCabe: Introduced a public hearing to consider recommending amendments to
subsection 1108 of the Prior Lake City Code. The proposed amendments would require a two-
thirds supermajority vote of all members of the City Council for adoption of amendment to any
part of the zoning ordinance that changes all or part of the existing classification of a zoning use
district from a residential designation to either commercial or industrial designation. He explained
the history, current circumstances, issues and recommended a motion. He presented a proposed
ordinance amendment.
Commission Comments/Questions:
Tschetter: Asked staff to clarify the change. He wondered if staff was recommending making it
reciprocal if converted to either direction for rezoning it would require a simple majority.
Planner McCabe: Stated that was correct.
MOTION BY KALLBERG, SECONDED BY TIELMAN, TO OPEN THE PUBLIC HEARING ON AGENDA
ITEM 4C AT 7:42 P.M.
VOTE: Ayes by Fleming, Tieman, Kallberg, Tschetter and Ringstad. The Motion carried.
Public Comment:
No comments from the public.
MOTION BY TSCHETTER, SECONDED BY RINGSTAD, TO CLOSE THE PUBLIC HEARING ON ITEM
4C AT 7:43 P.M.
VOTE: Ayes by Fleming, Tieman, Kallberg, Tschetter and Ringstad. The Motion carried.
Commission Comments/Questions:
No comments
MOTION BY TSCHETTER, SECONDED BY RINGSTAD, TO RECOMMEND TO THE CITY COUNCIL
AN ORDINANCE AMENDING SECTION 1108 OF THE PRIOR LAKE CITY CODE RELATING TO THE
VOTING REQUIREMENTS FOR ZONING CHANGES AND ADOPTING BY REFERENCE CITY CODE
SECTION 104; WHICH, AMONG OTHER THINGS, CONTAINS PENTALY PROVISIONS.
VOTE: Ayes by Fleming, Tieman, Kallberg, Tschetter and Ringstad. The Motion carried.
5. Old Business:
A. PDEV19-000007 – 3800 Green Heights Trail SW – Variance Resolution Denial – The Planning
Commission considered a request for variances from the minimum rear setback and maximum
impervious surface requirements in the R1-SD, Low Density Residential Shoreland Zoning District
on March 25, 2019. City Staff was directed to prepare a resolution of denial to be reviewed by
the Planning Commission. PID 250940030.
Planner Matzke: Introduced the consideration for denial of a variance from the minimum rear
yard setback and maximum impervious surface requirement. The home owner, Scott Thielen is
April 22, 2019 Planning Commission Meeting Minutes
8
requesting variances from the minimum rear yard setback and maximum impervious surface
requirement to construct a new dwelling on a single-family residence. The property is located
along the eastern shores of Upper Prior Lake, south of Dunkirt Avenue. The Planning
Commission held a public hearing on March 25, 2019 and voted to deny the variances, asking
that City Staff prepare a resolution of denial based on their findings to be brought to a future
Planning Commission meeting for review. He explained the history, current circumstances,
issues and recommended motion. He presented a denial resolution, location map, and survey
dated March 20, 2019.
Commission Comments/Questions:
Tschetter: Thought that the Commission decided it was not a lake shore property.
Ringstad: No comments.
Tieman: No comments.
Kallberg: No comments.
MOTION BY TSCHETTER, SECONDED BY KALLBERG, TO APPROVE A RESOLUTION DENYING
VARIANCES FROM THE MAXIMUM IMPERVIOUS SURFACE REQUIREMENT AND MINIMUM REAR
YARD SETBACK TO CONSTRUCT A NEW HOME IN THE R1-SD (LOW DENSITY RESIDENTIAL
SHORELAND) ZONING DISTRICT.
VOTE: Ayes by Fleming, Kallberg, Tschetter, and Ringstad. Tieman abstained due to his absence at the
March 25th meeting. The Motion carried.
6. New Business:
Announcements:
Director McCabe: Reminded the Commissioners of the Joint W ork Session meeting on May 6th.
7. Adjournment:
MOTION BY TSCHETTER, SECONDED BY RINGSTAD TO ADJORN THE MONDAY, APRIL 22, 2019
PLANNING COMMISSION MEETING AT 7:48 P.M.
VOTE: Ayes by Fleming, Tieman, Kallberg, Tschetter and Ringstad. The Motion carried.
Respectfully submitted,
Ann Orlofsky, City Clerk.
April 22, 2019 Planning Commission Meeting Minutes
Denial Resolution
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Sarah Schwarzhoff | Of Counsel | 952.746.2713 | sschwarzhoff@hoffbarry.com
Hoff Barry, P.A. | 775 Prairie Center Drive, Suite 160 | Eden Prairie, Minnesota 55344 | hoffbarry.com | 952.941.9220
MEMORANDUM
To: City Council
From: Sarah Schwarzhoff, City Attorney
Date: May 8, 2019
Re: Green Heights Variance Appeal
Mr. Scott Thielen requested a variance for rear yard setback and impervious surface on his
property located at 3800 Green Heights Trail and legally described as Lots 3 and 4, Green Heights. Mr.
Thielen’s property is a lakeshore lot but is separated from the lake by a waterfront which the Green
Heights plat dedicated for the use of all owners on the plat. The Planning Commission (“PC”) denied the
variance after a hearing on April 22, 2019. Mr. Thielen has appealed the denial of the variance to the
City Council.
REQUESTED ACTION: The City Council, in reviewing this appeal, should consider the process, standards
and arguments addressed below and presented by the applicant, Mr. Thielen. The Council should
determine if the PC properly considered the requested variance and should either confirm or reverse
the PC’s denial of the requested variance.
Mr. Thielen provided a number of documents as well as a narrative support his appeal. Mr.
Thielen makes numerous arguments which focus on two main issues. First, Mr. Thielen argues that the
City should have considered the waterfront to be part of his property in which case his property would
have been larger and deeper, and he would not have needed any variances. Second, Mr. Thielen argues
that the variance should have been granted.
1. Mr. Thielen argues that the City should have considered the waterfront to be part of his property
in which case his property would have been larger and deeper, and he would not have needed any
variances.
A. Mr. Thielen argues that he has “exclusive rights” to the waterfront and therefore it should be
considered part of his property.
Mr. Thielen’s argument is based upon a Court Order and Declaration of Rights issued in 1999.
The 1999 case was brought by several of the lakeshore lot owners in Green Heights (“Plaintiffs”). The
Plaintiffs used a number of legal theories (practical location, adverse possession, and abandonment) to
argue that they owned the waterfront and the back-lot owners no longer had any rights to the
waterfront. The Court made extensive findings of fact and conclusions of law at the end of which the
City Attorney Memorandum
Page 2 of 7
Hoff Barry, P.A. | 775 Prairie Center Drive, Suite 160 | Eden Prairie, Minnesota 55344 | hoffbarry.com | 952.941.9220
Court denied all of the Plaintiff’s claims, finding that the dedication on the plat granting common
ownership to the waterfront remained in effect. The Court did use the term “exclusive” repeatedly, but
it did so in the analysis of Plaintiff’s adverse possession claim. In order to prove adverse possession, a
person must prove exclusive, continuous, hostile and open use of the property for 15 years, only if all of
those factors are met is adverse possession implicated. The Court ultimately denied the adverse
possession claims and concluded that the waterfront was still commonly owned.
In conjunction with the Court’s order and based upon the agreement of the parties, a
Declaration of Rights was issued. The Declaration was short and made the following 3 statements:
1) Fee owners of back lots 11 through 44 shall have exclusive use and enjoyment of the
walkways located between Lots 2 and 3 and Lots 8 and 9 and shall have the sole right, by
majority vote of said lot owners, to place a single, straight dock at each access for the use and
enjoyment of all such lot owners who shall also have the obligation to maintain said walkways
and the waterfront are adjacent thereto.
2) Fee owners of lakefront lots 1 through 10 shall have the exclusive right to place docks,
boatlifts and fire-rings on the waterfront area immediately adjacent to their respective lot(s)
and shall have the sole obligation to maintain same.
3) Except as stated above no person may place any structure on the common areas of Green
Heights.
The Declaration made no statement in regard to ownership. In fact, it acknowledges the
common ownership of the waterfront by referring in number 3 to the “common areas.” The Declaration
also does not state that the lakeshore lot owners have the exclusive right to use the waterfront. While
the Declaration states that the back-lot owners have “exclusive use and enjoyment” of the walkways, it
only states that the lakeshore owners have the “exclusive right to place” and the “obligation to
maintain” the waterfront. A right to place structures and an obligation to maintain do not prohibit the
back-lot owners from accessing or using the waterfront and do not extinguish the common ownership.
Nowhere in the Court Order or Declaration are the lakeshore lot owners granted ownership or even
exclusive use of the waterfront.
Mr. Thielen’s argument fails on two counts. First, neither the Court Order nor the Declaration
grant him “exclusive rights” to the waterfront. Second, even if Mr. Thielen did have exclusive rights to
the waterfront, Mr. Thielen does not provide any legal theory that “exclusive rights” establishes
ownership.
B. Mr. Thielen argues that pursuant to the “lot of record” regulations in City Code and State
Statute, the waterfront should be considered part of his property.
In short, the lot of record regulations provide that a lot remains buildable even if it does not
meet the current lot size requirements if the lot was a buildable lot when it was created. However, if
one person owns abutting lots of record, those lots must be considered as one lot for building and
development purposes. Mr. Thielen appears to argue that the waterfront is a lot of record and therefore
must be included as part of his commonly owned lots. This argument fails on two counts. First, the
waterfront is not a lot and therefore cannot be a lot of record. City Code in subsection 1101.400 defines
a lot as “A piece of land established by plat, subdivision or otherwise permitted by law occupied or used
or intended for occupancy or use as permitted by the Zoning Code, abutting on a public street, and of
sufficient size to provide the yards required by the Zoning Code.” At no point was the waterfront ever
City Attorney Memorandum
Page 3 of 7
Hoff Barry, P.A. | 775 Prairie Center Drive, Suite 160 | Eden Prairie, Minnesota 55344 | hoffbarry.com | 952.941.9220
permitted or intended to be used for development. It does not abut a public street and is not of
sufficient size to be a buildable lot. Because the waterfront was never a buildable lot it is not subject to
the lot of record regulations. Second, the common ownership of lots of record relies on the ownership
of the lots being identical. If one lot is owned by the husband and the other by the wife, the lots are not
commonly owned and not combined. Because the waterfront is commonly owned by all of the lot
owners in Green Heights, there is no common ownership with the lots owned by Mr. Thielen.
C. Mr. Thielen argues that the plain meaning of the City Code requires that the waterfront be
included as part of his property and that as a result the City’s policy otherwise is
impermissible.
The City Code contains a number of definitions relating to lot and lot area. The base definition of
lot as identified above is: “A piece of land established by plat, subdivision or otherwise permitted by law
occupied or used or intended for occupancy or use as permitted by the Zoning Code, abutting on a
public street, and of sufficient size to provide the yards required by the Zoning Code.” Under the plain
reading of this definition, Mr. Thielen’s property includes the lots as established by the plat of Green
Heights, lots 3 and 4. The City does consider lots 3 and 4 to be one lot for purposes of development and
building under the lot of record common ownership discussed above. In no way does the City Code
suggest that abutting, commonly owned land should be included as part of an individual’s lot. Mr.
Thielen’s argument that the waterfront abutting his property is actually a part of his lot is not consistent
with the City Code or the plat.
Previously, City staff had interpreted some waterfront areas to be included in adjacent land
areas for the purpose of impervious lot area calculations. This interpretation was based on the theory
that the waterfront was not buildable and therefore it was reasonable to allow an abutting lot owner to
count the area which would otherwise go uncounted. Many riparian lots throughout the community
have additional land area beyond the platted property boundaries. It has come to the City’s attention
that there are differences in ownership of these land areas. Some of the land areas are specific to
common ownership and some land areas are unowned. Although the interpretation to include adjacent
land area was reasonable in some cases, it is not consistent with the plain meaning of the City Code and
did not account for the Waterfront areas dedicated to all owners of property within a subdivision. If the
Council is inclined to reconsider this plain meaning reading of the City Code, an amendment to the City
Code would be necessary to allow commonly owned property to be counted toward the area of
privately-owned lots.
Mr. Thielen’s arguments that the plain meaning of the City Code requires the waterfront to be
counted as part of his property are inaccurate. The City Code clearly defines lot, a definition which does
not include abutting commonly owned areas. Mr. Thielen states that ordinances are to be interpreted
against the City, but this is only when the ordinance is unclear. In this case the ordinance clearly
excludes the waterfront. Mr. Thielen makes no argument to explain why a plain reading of the City’s
definitions would include commonly owned, non-buildable property as part of an abutting privately-
owned lot.
2. Mr. Thielen argues that the Planning Commission should have granted the requested variance.
A. Mr. Thielen argues that his due process rights were violated.
City Attorney Memorandum
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Hoff Barry, P.A. | 775 Prairie Center Drive, Suite 160 | Eden Prairie, Minnesota 55344 | hoffbarry.com | 952.941.9220
Due process requires that a person receive notice and an opportunity to be heard. In this case,
Mr. Thielen received notice of the variance hearing and had an extensive opportunity to be heard by the
PC. In addition, Mr. Thielen, in filing this appeal, has received another notice and opportunity to be
heard. Due process has been satisfied.
Mr. Thielen argues that the ordinance should have provided the notice, this is not accurate. The
notice and hearing were provided as part of the variance hearing. Mr. Thielen also argues that because
one commissioner stated that he had not fully read the 1999 Court Order that Mr. Thielen did not
receive a fair hearing. However, the Chair of the PC specifically stated that he had read the Court Order
in full. In addition, the PC had extensive discussion relating to the status of the waterfront, Mr. Thielen
had an opportunity to speak to the PC and the PC had numerous other documents in the record to rely
on. Even if one commissioner’s failure to read one document had violated Mr. Thielen’s due process,
any such violation is remedied by the City providing this second hearing on the matter.
Mr. Thielen argues that the minutes of the PC meeting were generic and the PC’s statements in
the Resolution were conclusory. This is not accurate. The minutes of the PC meeting were extensive and
captured what was discussed by the PC. In addition, the Resolution clearly and in detail set forth the
PC’s decision. There is nothing in the record that suggests the PC did not fully consider the variance and
Mr. Thielen’s arguments. Mr. Thielen also argues that the PC confused an area variance with a use
variance. There was no discussion of a use other than residential on the property, therefore there was
no confusion with a use variance.
B. Mr. Thielen argues that the Planning Commission used the wrong standard for consideration
of a variance.
Mr. Thielen cites factors described by the Supreme Court in 1985. These factors are not
applicable as they were superseded by the legislature which amended the variance standard in 2011.
The current standards for a variance are set forth in statute in Minn. Stat. 462.357, Subd 2:
(2) To hear requests for variances from the requirements of the zoning ordinance
including restrictions placed on nonconformities. Variances shall only be permitted
when they are in harmony with the general purposes and intent of the ordinance and
when the variances are consistent with the comprehensive plan. Variances may be
granted when the applicant for the variance establishes that there are practical
difficulties in complying with the zoning ordinance. "Practical difficulties," as used in
connection with the granting of a variance, means that the property owner proposes to
use the property in a reasonable manner not permitted by the zoning ordinance; the
plight of the landowner is due to circumstances unique to the property not created by
the landowner; and the variance, if granted, will not alter the essential character of the
locality. Economic considerations alone do not constitute practical difficulties…
As set forth in the Resolution, these are the standards considered by the PC in analyzing the
variance. The City has provided additional clarification and description of the statutory factors in City
Code Subsection 1108.406. Nothing in the statute or elsewhere prohibits the City from clarifying or
expanding on the statutory standards. In fact, Minn. Stat. 462.357, Subd. 1 grants the City broad
authority in relation to its “official controls” as long as those controls are consistent with and do not
exceed the authority of the statute.
City Attorney Memorandum
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Hoff Barry, P.A. | 775 Prairie Center Drive, Suite 160 | Eden Prairie, Minnesota 55344 | hoffbarry.com | 952.941.9220
C. Mr. Thielen argues that the Planning Commission’s analysis of the requested variance was
wrong.
The State Statute sets forth the standards that must be met in order for a variance to be
granted. The Statute uses language such as “shall only be permitted when”; “may be granted”; and
“and”, to show that the property owner must meet all of the standards set forth in the Statute in order
to qualify for a variance. City Code Subsection 1108.406 reiterates that “all of the following criteria”
must be satisfied in order for a variance to be granted. Mr. Thielen discusses a balancing of factors,
suggesting that the factors should be weighed some in favor of the variance and some against, but this is
not an accurate statement of the law. Only if Mr. Thielen can show that his application meets all of the
standards set forth in the State Statute and City Code can the City grant the requested variance. Courts
have been clear that the burden to obtain a variance is on the applicant and that the burden is a high
one because the applicant is asking to violate the City ordinances. See: Krummenacher v. City of
Minnetonka, 2010, 783 N.W.2d 721; Luger v. City of Burnsville, 1980, 295 N.W.2d 609.
The PC used the statutory standard, as clarified and expanded by the City Code, to consider the
variance. The statute does not number the standards, but the City Code in Subsection 1108.406 divides
the statutory standards into five separate criteria. Mr. Thielen addressed these same standards,
although he numbered them differently. Each of those criteria are addressed below as identified in the
City Code.
(1) There are practical difficulties in complying with the strict terms of the Ordinance. “Practical
difficulties,” as used in connection with the granting of a Variance, means the property owner
proposes to use the property in a reasonable manner not permitted by the Zoning Ordinance.
Economic considerations alone do not constitute practical difficulties.
The PC found: “A practical difficulty does not exist on the property for the requested variances. The
12,400 square foot lot size and the width of the property is adequate for a reasonable house design
which would meet the 25-foot minimum rear yard setback and maximum impervious surface of the
lot (30% of the total lot area). It is the design elevation and large foot print of the proposed house
relating to the size of the lot that is creating the need for the variances. The desire for a large house
is not a practical difficulty. A house can be built on the lot within the setbacks and impervious surface
requirements and still be quite a substantial structure.”
Mr. Thielen argues that no variance is required because the waterfront is part of his property. Staff
disagrees with this assertion as discussed above.
(2) The granting of the Variance is in harmony with the general purposes and intent of the City Subdivision
and Zoning Ordinances and the Comprehensive Plan.
The PC found: “The purpose of the setback and impervious surface regulations is to protect abutting
property from encroachments, to keep structures an appropriate distance from the lake, and to
protect the surface water by retaining pervious surface especially near the lake. The granting of
variances to allow additional impervious and encroachment into setbacks is not in harmony with this
purpose.”
Mr. Thielen argues that the subdivision code and comprehensive plan do not apply to his variance. He
appears to be implying that because those provisions don’t apply the variance is in harmony. He also
City Attorney Memorandum
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Hoff Barry, P.A. | 775 Prairie Center Drive, Suite 160 | Eden Prairie, Minnesota 55344 | hoffbarry.com | 952.941.9220
appears to argue that to find against this factor the PC would need to cite a violation of a specific
provision of the Code to find lack of harmony or consistency. Staff does not believe that a specific
contradiction must be identified. Instead the analysis according to the Statute and Code should be
whether the requested variance is generally in harmony and consistent with the City’s regulations.
Mr. Thielen also argues that the removal of the word “consistent” is a material change to the meaning
of the standard. Staff believes that “in harmony” is similar enough to “consistent” that no material
change has been made.
(3)The practical difficulty is due to circumstances unique to the property not resulting from actions of
the owners of the property and is not a mere convenience to the property owner and applicant.
The PC found: “A reasonable house design could be constructed within the 30% impervious surface
maximum requirement and minimum rear yard setback requirement at 3800 Green Heights Trail
SW. The lot size is 12,400 square feet which is comparable in size and in fact larger than many
lakeshore lots within the City. The size of the lot is not unique within the City. Several homes have
been built in the City on similar lots, are conforming and maintain a generous structure. A main floor
master bedroom and third stall garage are mere conveniences.”
Mr. Thielen argues that the uniqueness of the property arises from the Court Order and waterfront.
Staff does not believe that a commonly owned waterfront makes the property unique as there are
many throughout the City.
Mr. Thielen also argues that the proposal cannot be considered, the “mere convenience” language is
improper and that the City’s change in policy created the practical difficulties. Staff believes that the
PC’s analysis focuses properly on what caused the practical difficulties. The PC found that the property
could be used in a reasonable manner, the proposal provided mere conveniences to the applicant,
and that the lot was not unique in the City all of which point to the conclusion that the practical
difficulties were caused not by City policy or the unique lot but by the proposal submitted by the
applicant.
(4)The granting of the variance will not alter the essential character of the neighborhood or be
detrimental to the health and safety of the public welfare.
The PC found: “The purpose of the setback and impervious surface regulations is to protect abutting
property from encroachments, to keep structures an appropriate distance from the lake, and to
protect the surface water by retaining pervious surface especially near the lake. The granting of
variances to allow additional impervious and encroachment into setbacks would be detrimental to
the health and welfare of the public especially relating to surface water protection.”
Mr. Thielen argues that the addition of the health and safety language changes the standard. Staff
disagrees, part of the essential character of any neighborhood in the City is health and safety.
(5)The granting of the Variance will not result in allowing any use of the property that is not permitted
in the zoning district where the subject property is located.
City Attorney Memorandum
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Hoff Barry, P.A. | 775 Prairie Center Drive, Suite 160 | Eden Prairie, Minnesota 55344 | hoffbarry.com | 952.941.9220
The PC found: “The impervious surface variance and rear yard setback variance would allow
construction of a residential dwelling which is an allowed use within the R-1 (Low Density Residential)
Zoning District.”
City Attorney Memorandum