02-21-2023 Planning Commission Packet

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FILE # LA22-000068 19 September 2022 Page 3 of 5 Governing Regulation: Variance (Section 78-123) In reviewing applications for variance, the Planning Commission shall consider the effect of the proposed variance upon the health, safety and welfare of the community, existing and anticipated traffic conditions, light and air, danger of fire, risk to the public safety, and the effect on values of property in the surrounding area. The Planning Commission shall consider recommending approval for variances from the literal provisions of the Zoning Code in instances where their strict enforcement would cause practical difficulties because of circumstances unique to the individual property under consideration, and shall recommend approval only when it is demonstrated that such actions will be in keeping with the spirit and intent of the Orono Zoning Code. Economic considerations alone do not constitute practical difficulties. Practical difficulties also include but are not limited to inadequate access to direct sunlight for solar energy systems. Variances shall be granted for earth -sheltered construction as defined in Minn. Stat. §216C.06, subd. 14, when in harmony with this chapter. The board or the council may not permit as a variance any use that is not permitted under this chapter for property in the zone where the affected person's land is located. The board or council may permit as a variance the temporary use of a one -family dwelling as a two-family dwelling. According to MN §462.357 Subd. 6(2) variances shall only be permitted when: 1. The variance is in harmony with the general intent and purpose of the Ordinance. Preserving and protecting the lake yard slope is in harmony with the intent of the ordinance. Staff recommends the proposed retaining walls be screened with vegetation to maintain the rural nature of the lake wherever feasible. The variance is consistent with the comprehensive plan. The as -built retaining walls will continue to maintain the integrity of the slope and protect the slope from catastrophic failure which protects the lake as well as neighboring properties. The proposal is consistent with the comprehensive plan in this manner. The applicant establishes that there are practical difficulties. a. The property owner proposes to use the property in a reasonable manner not permitted by the official controls; The owner has installed retaining wall improvements which are residential in nature and reasonable from a residential scope. b. There are circumstances unique to the property not created by the landowner; The owner has constructed retaining walls to protect against failure of the slope resulting from a catastrophic fire. The existing improvements within the slope of the lake yard were not originally constructed by the owner; and c. The variance will not alter the essential character of the locality. There were previously existing retaining walls and improvements in the lake yard. The variance to permit the expanded retaining wall structure within the bluff and 75 -foot lake setback will help to maintain the existing slope and character of the area. Additionally City Code 78-123 provides additional parameters within which a variance may be granted as follows: 4. Economic considerations alone do not constitute practical difficulties. Economic considerations have not been a factor in the variance approval determination. 5. Practical difficulties also include but are not limited to inadequate access to direct sunlight for solar energy systems. Variances shall be granted for earth -sheltered construction as defined in Minn. Stat. § 216C.06, subd. 17, when in harmony with Orono City Code Chapter 78. This condition is not applicable.