07-08-2002 Council Packet - Laserfiche WebLink

Home Browse Search

Orono Planning Conunission Page 6 June 13,2002 As Mr. Weinberger’s report notes, City staff requested that “Mr. Stephenson have the adjacent property owners join him in this application, since the request is to allow the land alteration beyond the property lines.” The record is inconclusive, however, as to the volume of fill that has been illegally placed on the adjoining properties. Therefore, it is unclear whether or not the adjacent property owners may themselves require a conditional use permit for “land alteration on the property over SOO cubic yards.” If either adjacent owner would have required a CUP to place the fill on his property that the Stephensons have placed there without authorization, then it stands to reason that the Stephensons ’ illegal actions should not obviate the need for separate CUP application(s) to be made by the adjacent owner(s). To allow such land alterations without the process requir^ by the City’s code would likely be a violation of the due process rights of those persons usually afforded notice and opportunity to comment as a part of such a process. Mr. Chalfen would also like to see the City require adherence to the e.xisting CUP requirements that the fill be removed from the side lot setback areas within the Stephensons ’property (that is, not just from the adjacent properties). There is no basis In the record for effectively amending the CUP to allow more fill than was previously authorized. In other words, the Stephensons should be required to meet the three to one slope ratio throughout the limited fill area permitted in the CUP, even if this means removing more fill from the center line of the fill area to enable compliance with slope limitations of the grade extending laterally toward the side lot lines. The Staffs Legal Analysis is Limited^ Bui is Essentially Correct in Concluding that the Stephensons Do Not Meet the Test for Either an Amended CUP or for a Variance Both the requested amendment to the CUP and the requested after-the-fact variance fall far short of meeting legal requirements and they must therefore be denied. Further, granting either request would be contrary to sound public policy as the Stephensons ’ behavior in flaunting the City’s and the Watershed District’s authority should not be rewarded. An application for amendment to a CUP should meet all threshold requirements as though the application was for issuance of a original CUP. A CUP or variance "may be denied for reasons relating to public health, safety, and general welfare ” even if those concerns are not embodied in ordinance or statute. Chanhassen Estates Residents Ass'n v. City of Chanhassen, 342 N.W.2d 335,340 (Minn. 1984); see VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503,508-09 (Minn. 1983) (city has broad discretion to rule on variance request); Zylka v. City of Crystal, 283 Miim. 192,195-96,167 N.W.2d 45,48-49 (1969) (city has broad discretion in deciding on main text, Mr. Chalfen disagrees with the reasoning the staff applies to arrive at the conclusion, particularly the premise tlut having the adjacent property o^^ner's consent should make any difference in the result 2226428VI