09-08-2014 Council Minutes - Laserfiche WebLink

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MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, September 8, 2014 7:00 o’clock p.m. _____________________________________________________________________________________ Page 9 of 25 (6. #14-3675 RYAN AND STACY ALNESS, XXX ELMWOOD AVENUE/PID 07-117-23-11-0027 – VARIANCES, Continued) Thieroff stated the answer Staff gave to the Planning Commission is incorrect for two reasons: One, the ordinance talks about single lots of record. Currently this lot is one large lot by virtue of the Special Lot Combination Agreement and is not yet a single lot of record. As a result, that provision does not apply in this situation. Thieroff stated the provision that does apply and where the DNR addresses it is in the rules regarding subdivisions within the shoreland district. Thieroff indicated Subpart 3 from the DNR rules cover subdivisions in shoreland areas and that the DNR has adopted very specific rules about subdivision when the land is located within the shoreland. Thieroff noted the first provision states that local governments must not approve subdivisions that are designed so variances from one or more standards and official controls would be needed to use the lots for their intended purposes. If someone wants to divide a property in the shoreland, the City may not approve that subdivision if to use the property for its intended purpose they would need additional variances. Thieroff stated the applicants are requesting a variance so that requirement is met. Thieroff noted this is not discretionary and it is the DNR saying someone may not do this. Thieroff indicated it cannot happen without a subdivision due to the Special Lot Combination Agreement The second provision says that the lot shall meet the minimum lot size. Thieroff stated he will represent to the City Council that the other provision sets a 20,000 square foot minimum and this property is approximately 10,000 square feet. Thieroff stated by virtue of this regulation that the DNR adopted, the property is not buildable. That, by definition, means that the proposed use is not useable. If the proposed use is not reasonable, the variance cannot be granted. Thieroff stated the second issue he would like to touch on is the presence of a bluff on this property. At the July Planning Commission meeting, Thieroff indicated he took the position that the proposed location of the house was on a bluff. According to the City’s ordinances, if it is a bluff, all structures are prohibited. The Planning Commission tabled the application at that meeting and stated they would like to consult with Staff on that item. Thieroff stated the point of contention is the location of what is called the bluff toe, which is the point on the bluff that Staff makes the calculation to determine if the slope is steep enough over a long enough period of time to constitute a bluff. Staff had placed the toe in one location and it has been suggested that it should be placed in another location. Thieroff indicated Staff took the position that their argument should be rejected and that the way Staff had conducted the calculation was correct. Thieroff stated there was no analysis or legal reasoning provided at that time except that that is the way Staff has always done it. Thieroff stated with all due respect to Staff, the question is not whether the calculation is consistent with past practices but whether it is consistent with the law. Thieroff stated he has submitted the document that is on the overhead to Staff. Thieroff pointed out the location of Staff’s determination of the toe and their location of the toe. In conversations with Staff, they have indicated there could only be one toe. Thieroff noted the shoreline is 1,000 feet in length from the edge of the lake inland. Thieroff stated simply because there is no hilly area near the lake that does not constitute a bluff that does not mean that there is no bluff further inland.