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HomeMy WebLinkAbout1973-12-04 Homeowner Letter, Zoning OrdinanceRICHAADS, MONTGOMERY, COBB S. BASSFORD, P. A. LAWYERS FRED B. SNYDER EDWARD C. GALE FRANK A. JANES DECEASED SERGMANN RICNAROS E D M U N O T. MONTGOMERY N AT THAN A. CODU PAUL L. SPOONER. JR. CHARLES A. DA">SFORU MELVIN D. NECK GREER E.LOCKHART WILLIAM G. DALE LYNN C. TRUESRFLL Z JEROME C. DRIGGS L. H. MAY, JR. RICMARO L.LUTI4CR JONATMAN P. SCOLL JACK A.ROSDCR(i JAM ES B. PROMAN Mr. Richard Dunlap 60 Cygnet Place Long Lake, Minnesota 55356 Dear Mr. Dunlap: TELEPHONE 332-8541 1430 DAIN TOWER 527 MAROUETTE AVE MINNEAPOLIS MINNESOTA 66402 December 4, 1973 I am writing in response to your request for an opinion as to whether you are required by the Zoning Ordinance of the Village of Orono to secure a Conditional Use Permit -for excavation for a small pool which you have in your back yard. It is my understanding that while you were constructing your new house during the summer of 1972, it was discovered that the water table in the back yard was very close to the surface and that as a part of the landscaping of the yard in connection with the construction of a new house, you had a small area excavated below the surface which immediately filled with subsurface water. The soil excavated from this area was removed to an adjoining lot owned by the Village Engineer and was deposited there with his consent. The area around the pool was then land- scaped as part of the landscaping of the yard and house. It is also my understanding that prior to making this excavation you inquired of Mr. Scheller, the Building h Inspector, as to whether any permit was required and he informed you that no permit was required for this excavation for this purpose. You now have received a letter dated Noveml-.er 29, 1973, from Mr. Scheller informing you that the Village Council, at its meeting November 26, "voted that all ponds excavated since the enactment of the Excavation Ordinance in 1967, should come into conformance by applying for a a Conditional Use Permit as required by the Ordinance", and a a 9 �i 5 Mr. Richard Dunlap Page 2 he requested that you submit a Conditional Use Application on a form which he submitted. You have furnished me with a copy of Ordinance No. 125 of the Village of Orono which it is my understanding is the Ordinance referred to by Mr. Scheller in his letter of November 29. This Ordinance imposes an amendment to Section 31.700, 31.705 and 31.710 of Chapter 31 of the Municipal Code of Orono, which Chapter is the Zoning Ordinance of the Village Section 31.700 provides that "it shall be unlawful for any person**to remove**sand, gravel, dirt or similar material within the limits of the Village of Orono; without a Conditional U.se Permit issued by the Village Council." But Section 31.710 qualifies this Section by providing that "the requirements of Section 31.700 are not intended to govern the normal and customary grading of the area of an existing or.a newly constructed building"**"such grading and earth moving shall be approved by the Building Inspector at the time of issuance of the Building Permit." Mr. Scheller in his letter of November 29, states that the Village Council, at their meeting of November 26, 1973, "voted that all ponds excavated since the enactment of the Excavation Ordinance in 1967, should come into conformance by applying for a Conditional Use Permit as required by the Ordinance." It is my understanding that there is no such provision in the Municipal Code adopted in 1967 and that this reference is to the amendment to this Ordinance accomplished by Ordinance No. 125 referred to above. I find nothing in the original Ordinance prohibiting any excavation of this kind in connection with improvement of a yard sL.rrounding a one family detached dwelling. Section 340.36 permits "decorative landscape features." We conclude that this excavation on your lot for the purpose of creating a natural water pool as a part of the landscaping of the lot, which pool does not drain on to adjoining land, was not prohibited by the Ordinances referred to above and that the Village Council has no authority by its action on November 26, to in effect, impose a retroactive amendment to the Ordinance by requiring v h Mr. Richard Dunlap Page 3 Conditional Use Permits for ponds excavated since the enactment of the Ordinance. It is my understanding that you are considering making application for the Conditional Use Permit as a matter of cooperation with the Village Council even though you may not be required to secure the permit by existing Ordinances. It is our recommendation that any application you make shall be accompanied by a statement that it is made without prejudice to your right to contest any prosectuion or other proceeding by the Village alleging violation of ;he Ordinance in the event that the application is ueniad. You have called attention to the fact that the request of the Building Inspector dated November 29, and received by you November 30, gives you an inadequate time to prepare the complex application and submit an abstract of adjoining properties by December 5. You also informed me that you are leaving home for a two week trip about , December 14'. I would suggest that you therefore, request an extension of time to file the application and attached abstract until :shortly after January 1st, such request to bo nubject to PreaarvatAon of your right to contest any prouocuLi.on or procoodinq for oiiforcc)munt of the Ordinance in the event that a permit is not granted. Yours very truly, Edmund T. Montgom ry ETM/bac 1