02-23-2004 Council Packet - Laserfiche WebLink

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Accessory Structures April 23,1997 Page 2 What Constitutes a 'Dwelling'? The primary issue for building & zoning staff is to determine whether a guest house CUP is required for a given project . This determination relies on a definition of what makes an accessory structure a dwelling. The zoning code definition of 'dwelling* is: “Dwelling - A building or one or more portions thereof designed or intended to be occupied exclusivelyfor residence purposes, but not including rooms in motels, hotels, nursing homes, boardinghouses, nor trailers, tents, cabins, or trailer coaches. A dwelling shall not be interpreted to include lodging rooms." The terms 'building', 'boardinghouse', 'motel' and 'hotel' are further defined in the zoning code. It is unfortunate, however, that the physical features that differentiate a building that is a dwelling from one that is not, are not defined. We then must turn to the Building Code, which indicates that a dwelling is characterized by containing facilities for "sleeping, eating, cooking and sanitation." The building code also indicates a number of other features of a habitable dwelling: a separate closet, a kitchen sink, refrigeration, a cooking tqipliance, and plumbing to include as a minimum a toilet, a tub or shower, and a lavatory. One could also argue that in Minnesota, a source of heat is also necessary during a portion of the year. Permanent Fixtures vs. Personal Property The next difficulty is that many of the physical objects which would reasonably and normally be used for the activities of 'sleeping, eating, cooking and sanitation' are not fixtures but can be relatively mobile items of personal property rather than real property, i .e. a bed, perhaps a space heater, a table/chairs/eating utensils, a microwave oven or even an electric or gas stove and a refrigerator. These 'portable' items can be brought into and removed from a building at will and, significantly, without the requirement of a building permit, hence using them to define whether a building is or isn't potentially functional as a dwelling, is not practical. However, the function of sanitation generally requires permanent fixtures which are readily distinguishable frou: r crsonal property, and which technically require that a building permit be issued. Toilets, showers, tubs and lavatories fall into this category. And, most heating equipment falls into this category. Presence or Absence of a 'Kitchen' For some time staff has considered that the presence or absence of a Idtchen' is a key determinant of dwelling status. Also, staff has generally considered that a secondary kitchen ivithtn a dwelling is one of the key factors that can create an apartment unit, and has usually noted to the builder/owner via the plan review that use of the second kitchen for a separate dwelling unit requires City iqrproval (guest apartment CUP).