05-15-1995 Planning Packet - Laserfiche WebLink

Home Browse Search

I Tftomas J. Barret;. Esq .\oril 12. 1W5 Pace Tv.o Tlic Cin>' has required rr.c to apply for re-suodivision ot Lots I. 3, and Outlet 1, betore it nni II consider issuing a building pc.’mit to my son. Tlie City has required me to present a current Mir\ry of Lots 1. 3. and Outlot 1, s.hov^ing hardcover, square feet and dimensions. In an effon to avoid the delay and cost of litigation. I have tried to comply with the Citj's demand for re- subdivision of Lot I. pursuant to the City's interpretation of its 1^84 Zoning Ordinance. All of the City ofticials, who ha\ e examined the survey ot Lot 1 agree that it is in full compliance (as presently platted.) uitli the requirements ot the 1984 Zoning Ordinance. Tlie application lor re* subdivision of Lot 1. which 1 'vas compelled to present to the City, was tabled at the last Planning Commission meeting in order to give me time to evaluate the appropriateness of applying for re-subdivision ot Lot 3 and Outlot 1. I was advised at the meeting, that if I did noi^ ^ apply for rc-subdivision of Lot 3 at the same time as Lot I, I would never be able to do so later, nor could Lot 3 ever be legally eligible for a building permit. appropriatf ordinance and APPL1C.\BLE law The applicable ordinance governing area requirements for building on this type of propeny is Miinicipfll Zoning Ordinance sec. 10.25 subd.(6)(b)(1984). It designates a minimum lot area requirement of 1/2 acre. The City of Orono has a "grandfather provision" in its Zoning Ordinance. It provides that "If an e,xisting "Lot of Record", in an "R" District, serviced by a sanitary sewer does not meet this and the other minimum requirements, the lot may be utilized for single family dwelling purposes without council approv al if the area measurements and width are within eighty percent (80%) of the Zoning Chapter requirements". Municipal Zoning Ordinance sec. 10.03 subd.(6)(a)(l). This type of language is meaningless unless construed to "Grandfather" in previously recorded lots that meet the requiremeni.s. Day v. Wright County. 391 N.W.2d 32 at 34 (Minn. App. 1986). If the party seeking the permit meets all the standards prescribed in the ordinance, the council has no di.scretion to deny the permit. Its refusal to gram the permit in such circumstances is arbitrary a.s a matter of law and mandamus will lie to compel the council to grant the permit. liL, 34. Zoning Ordinances are in derogation of the common law and should be construed strictly against the City and in favor of the property owner. LLi at 35. In Day v Wright Coumv . a property owner petitioned the Court to compel the Wright County Board of Adjiusiments tn declare his property' a "buildable lot" and grant him a building permit for it. Tlie property owner argued that the Wright Coimty Ordinance on Zoning had a grandfather clause, deeming his property buildable by law. The Court found that the property owner was in full compliance with (he ordinance under a grandfather clause and when these btandards are met the City Council has no discretion to deny the permit.