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HomeMy WebLinkAboutResolution 1247 . . � u :: l Ci.t� o� ORONO • �� RESOLUTION OF THE CITY COUNCIL � NO. 1247 • � • • A RESOLUTION DENYING BRUCE F. HEPP' S APPLICATION FOR SUBDIVISION WHEREAS, the City of Orono is a municipal corporation organized and existing under the laws of the State of Minnesota; and WHEREAS, the City Council of the City of Orono has adopted zoning and subdivision regulations pursuant to the powers vested in the City by State Statutes Sections 462 . 357 et. seq. and 462. 358 et. seq. for purposes of ensuring the orderly, economic and safe development of land within the City; and WHEREAS, the City Council has considered an application for subdivision made by Bruce F. Hepp, dated March 10 , 1980 , for property located at 2605 West Lafayette Road and legally described as follows : Lot 9 and that part of Lot 10 lying westerly of • Registered Land Survey No. 131; "Shorehills" , hereinafter referred to as "Lot 9" ; and WHEREAS, the City Council has reviewed the studies prepared by City staff; the recommendations of the Planning Commission; the comments and petitions submitted by neighborhood citizens; and the letters and comments made by the applicant and/or his attorney; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Orono hereby denies Bruce Hepp' s requested subdivision of Lot 9 , and further denies any and all variances from zoning or platting code performance standards , which variances would have been required in order to approve said subdivision, al1 based upon one or more of the following findings of fact concerning this property and this application: FINDINGS OF FACT 1 . This action of the City Council is based upon the layout for proposed subdivision attached hereto as Exhibit A, a survey by Gordon R. Coffin dated 3-29-76 , revised 7-23-80 . This is the plan acted upon by the Planning Commission on November 17 , 1980 , and is the only plan ever placed before the City Council for their consideration. • PAGE 1 OF 11 • �p l Cit� of ORONO �� RESOLUTION OF THE CITY COUNCIL � NO. 1247 2 . Three other proposed subdivision layouts have been reviewed in the record of this application: a) The original layout proposed with the application, Exhibit B dated 3-26-76 , had a proposed dividing line closer to the south than does the final plan. This line was moved north per Exhibit A after the Planning Commission requested at least 1 . 0 acres of land in lot 2 , exclusive of all driveway easements . b) A third plan, Exhibit C dated 9-29-80 , proposed dividing Lot 9 such that both lots would have frontage on Lake Minnetonka and on the cul-de-sac of West Lafayette Road. This plan was with- drawn by the applicant after the Planning Commission found that neither proposed lot conformed to minimum required lot width at the shoreline , and that proposed lot 2 had insufficient lot width at all locations . • c) A fourth plan was verbally discussed but never formally presented on a survey. This plan would have been similar to Exhibit A except that proposed lot 2 would have included a 20 or 30 foot wide panhandle extending along the west side of lot 1 to the shoreline of Lake Minnetonka. This proposal was never formally submitted because both the Planning Commission and the Council indicated that such a panhandle would have required approval of a lot width variance at the shoreline, which variance would have been denied as being contrary to the City' s established zoning performance standards for shoreland lots , contrary to the City' s boat density and riparian land policies , contrary to the City ' s comprehensive plan, and contrary to the rQinnesota Department of Natural Resources ' Minimum Shore- land Management F.egulations for lakeshore lot width. The City of Orono will not consider transferring riparian rights from riparian lots to building sites which are not fully conform- ing with all direct lakeshore frontage requirements of the zoning code. 3 . At the regular Council meeting of January 26 , 1981 , Hepp' s attorney Franz Jevne specifically for the record agreed that Exhibit A was the current subdivision layout and that all other layouts or plans which may have been discussed during this application should be considered to have • been formally withdrawn by the ap�licant. PAGE 2 OF 11 x�� l Cit� o� ORONO • �� RESOLUTION OF THE CITY COUNCIL • NO. 1247 � � • • 4 . The Hepp proposal conforms to the definition of "subdivision" contained in Section 39 . 020 of the Orono Zoning Code, and was therefore reviewed according to the standards and procedures set forth in Chapter 39 , the Platting Code of the City. 5 . The application of Bruce F. Hepp was and is for land subdivision only and never included application for any variance from zoning or .subdivision performance standards . 6 . Existing Lot 9 is located in the LR-1B Zoning District, which District has the following minimum lot requirements : Section 34 . 452 lot area 1. 0 acre = 43 ,560 sq. ft. lot width 140 feet front yard setback 35 feet rear yard setback 30 feet side yard setback 10 feet • Section 34 . 201 Lakeshore setback 75 feet Section 34 . 202 Hardcover regulations 0-75 feet from shoreline = no hardcover 75-250 feet from shoreline = max. 25% hardcover 250-500 feet from shoreline = max. 30o hardcover 7 . Existing Lot 9 compares to and conforms with the minimum zoning district requirements for single family residential lots in the LR-1B District as follows, all as determined from the application survey, Exhib�t A: Lot area : 2 . 8 acres = 121 ,970 sq. ft. (excluding any open water or "pond" area ) Lot width: 265 feet at shoreline 290 feet at existing building line 245 feet at front of west property line 140 feet at 90 ft. setback from cul-de-sac existing house setbacks : 100 feet to lake 66 feet to west side 130 feet to east side 370 feet to street � PAGE 3 OF 11 • �� � Clt� o� ORONO RESOLUTION OF THE CITY COUNCIL � NO. 1247 8 . An e�isting driveway easement serving as sole access to adjacent T�act £, of RLS 1468 runs across the south 14 ft. of Lot 9 and enters the cul-de-sac of West Lafayette Road beside the existing driveway serving the home on Lot 9. This easement was created in 1971 by Rand when Rand sold Lot 9 to Hepp and retained Lot 8 together with this easement. This easement was not approved by the City at that time , but was recognized by the City as the access for Tract B, RLS 1468 when lots 8 & 19 , Shorehills , were subdivided by Kern Hoppe in 1976 . Consequently, there are already two residential driveway curb cuts within the 40 ft. frontage of Lot 9, which frontage is less than the Zoning Code Standard of 140 ft. for one residence. 9 . The existing residence on Lot 9 has been served with both public water and public sanitary sewer. Only one water unit charge and one sewer unit charge has been assessed to this property. There is no water stub and no sewer stub provided for any second unit on the property. This indicates the historical intent of previous councils and the property owner to have only one residential unit on the property. • 10 . Lots 8 and 9 , Shorehills , were originally combined in one deed from Maxwell to Rand dated 5-17-46 , which deed included a restriction that only one one-family residence ever be erected on Lots 8 and 9 combined. This restriction was lifted by District Court Order on October 27 , 1971 , after Hepp purchased Lot 9 , but not Lot 8 , from Rand. The Hepp house on Lot 9 was existing in 1971 . A new house was later built on Lot 8 , after that 1ot had been rearranged in RLS 1468 . 11 . Proposed Lot 1 does not adjoin the public street. All ingress , egress and access to proposed Lot 1 would be provided by private easements utiliz- ing the existing driveway as shown on Exhibit A. Consequently, there would then be three residences having all access located within the same 40 ft. frontage on the cul-de-sac , thereby creating potential traffic conflicts and too much traffic entering the public street from too little private frontage. 12 . Proposed Lot 1 does conform to the minimum Zoning district requirements for lot area, lot width and existing building setbacks . 13 . Proposed Lot 2 contains more than 1 . 0 acres in total land area exclusive of the existing and proposed driveway easements , but this area is divided into two non-contiguous pieces by the proposed driveway easements intended to serve Lot l , as shown on Exhibit D : S a) That portiori of Lot 2 west of the driveway easement contains approximately 30 , 800 square feet or . 70 acres . This area is PAGE 4 OF 11 • `= l Cit� of ORONO RESOLUTION OF THE CITY COUNCIL � NO. 1247 • � • • further reduced by minimum required setbacks from the pond, property lines and easements such that the area of the re- maining building envelope is only about 11 ,500 square feet or . 27 acre. The effective width of the building envelope is also reduced to an irregular shape varying between 50 and 80 feet in width. b) That portion of Lot 2 east of the driveway easement con�ains approximately 13 , 000 square feet or . 30 acre. The effective building envelope is reduced by required setbacks to only about 7 ,500 square feet in area and 25 to 45 feet in depth. Because the proposed driveway easement effectively divides Lot 2 into two separate lots , neither portion conforms to the minimum LR-1B District lot area or lot width requirements of sec tion 34 .452 . Approval of the Hepp application would therefore first require approval of lot area and lot width variances from the performance standards of Section 34 . 452 . � 14 . Section 31 . 204 of the Orono Zoning Code states : Combination of Separated Parcels Prohibited. No lot or parcel of land which is divided by a public , private or platted road or road easement, which results in any segment thereof being less than the minimum acreage required for that zoning district, shall be allowed to be combined with any separated parcel of land across the road for purposes of qualifying under the minimum acreage, open space, required yard, setback or sanitary or septic system requirements , nor shall building or density credits be credited or transfer- red between such parcels under any provisions of this code. Each separate parcel must individually conform to the provisions of this code in connec- tion with construction of improvements thereon. Clearly, proposed Lot 2 as shown on Exhibit D does have a road easement that divides the lot into two segments both of which are less than the minimum acreage required for the LR-1B Zoning District. Approval of the Hepp application would therefore first require approval of a variance from Section 31 . 204 . 15 . Moving the existing (and Proposed) driveway to the east would increase the buildable area and effective width of Lot 2 but would encroach upon and require fillinq of an existing drainageway running through this area between the cul-de-sac and the lake. • PAGE 5 OF 11 • � Clt� of ORONO RESOLUTION OF THE CITY COUNCIL � NO. 1247 • � • • Filling or obstruction of this drainageway would affect drainage from the public street and could adversely affect adjoining properties to the east by causing flooding of said properties contrary to the intent and purpose of the City"s Flood Plain and Wetlands Management Ordinances , numbers 125 and 213 , codified as sections 31 . 700 et. seq. and 31 . 800 et. seq. of the Orono Zoning Code. 16 . The proposed subdivision is contrary to the purpose of the established subdivision regulations as stated in section 39 . 010 of the Orono Platting Ordinance and to the performance standards of Section 31 . 204 because the buildable area of proposed Lot 2 is a disconnected patchwork pattern not in keeping with the unified scheme of adjoining and nearby residential lots, and the minimal frontage on West Lafayette Road would restrict access and lead to circulation conflicts within this subdivision and between this subdivision and the users of existing adjoining driveways . 17 . Section 39 . 140 subd. 3 of the Orono Platting Ordinances states : • GENERAL REQUIREMENTS : LOTS. Each lot shall adjoin upon a public street. Lots in registered land surveys may adjoin upon private streets . Said streets nonetheless shall comply with provisions pertaining to streets set forth in this chapter. Approval of the Hepp application would first require approval of variances from the performance standards of Section 39 . 140 (3) as follows : a) Proposed Lot 1 does not adjoin upon a public street. b) Even if the subdivision were to be approved as a registered land survey, the proposed driveway easement serving Lot 1 does not conform to the definition or standards of a private street. 18 . Section 30 . 040 of the Orono Zoning Code defines a private street or road as "Any private way set aside as a permanent right of way for vehicular access 50 feet or more in width" . The proposed driveway easement shown on Exhibit A is clearly intended to be set aside as a permanent right of way for vehicular access but is only 20 feet in width and therefore does not conform to the performance standards for private streets . Approval cf the Hepp application would therefore first • require approval of a width variance from Section 30 . 040 . PAGE 6 OF 11 • l Cit� of ORONO RESOLUTION OF THE CITY COUNCIL � NO. 1247 3� 19. Sec� on 39. 100 of the Orono Platting Code pertaining to the design of streets provides that minor residential streets have a right of way of 50 feet wide and be terminated in a cul-de-sac not less than 100 feet in diameter. Approval of the Hepp application would first require approval of variances from the performance standards of Section 39 . 100 as follows : a) The proposed driveway easement is only 20 feet wide, not 50 feet as required. b) The proposed driveway easement does not terminate in a cul-de-sac but instead dead-ends abruptly at proposed Lot l . c) There has been no plan submitted and there is apparently insufficient land area available in Lot 9 to provide for a 50 ft. wide right of way and 100 ft. diameter cul-de-sac in addition to the desired two residential lots. 20 . Section 31 . 220 of the Orono Zoning Code States : � Lots to Face Streets . Each lot shall face on a public street or appropriate private easement. This section is intended to provide a means for utilizing existing lots of record which may have been land-lo�ked by unplanned subdivisions occurring prior to the adoption of the Platting Code. The more restrictive provisions of Section 39 . 140 (3) are intended to apply to newly subdivided properties so as to ensure logical subdivision of properties in conformance with the intent of Section 39 . 010 . Even if Section 31 . 220 were to apply to the Hepp application, the council hereby finds that the proposed driveway easement intended to serve Lot 1 is not an "appropriate" easement because its location has the adverse effect of splitting proposed Lot 2 into two substandard parcels in violation of the standards setout in Section 31 . 204 . Therefore approval of the Hepp application would first require approval of a variance to Section 31 . 220 because said easement is not "appropriate" as required therein. 21 . The Planning Commission on November 17 , 1980 recommended approval of the Hepp application pursuant to Exhibit A making the following findings : a) adequate area for two lot subdivision in the LR-1B Zoning District Lot 1 - 1 .6 acres; Lot 2 - 1 acre b) sufficient sewer and water capacity for Lot 2 c) adequate area of public street providing access for three lots based on following hardships : � 1 . cul-de-sac lot has limited frontage on public street 2 . city encouraged third user of access by creating access easement for Hannah Lot - the repercussions of agreeing to this easement were not made clear to original owner and future buyer (Hepp) . PAGE_LOF 11 • � Cit� of ORONO RESOLUTION OF THE CITY COUNCIL � NO. 1247 • - • • consideration of lakeshore and riparian credit: 1 . City has previously established a 75 ' setback for lagoon - lagoon is part of Lake Minnetonka (so designated in Hannah conditional use permit and variance application) . 2 . At present the definition of the lakeshore standard of 140 feet of lakeshore does not • distinguish between navigable and unnavigable shoreline nor does it specifically expand on concept of riparian rights. 3 . City has previously granted access to Lake Minnetonka via walkway easement as in Hannah subdivision. 4 . Planning Commission finds that this property meets requirement for subdivision of property into two riparian 1ots . As to lot configur- ation, the Planning Commission believes the • horizontal division with walkway access and limit of four boats to one dock is enviorn- mentally more satisfactory than a vertical division. 22. The City Council specifically reviewed the findings of the Planning Commission, as well as new information presented to the Council which had not been available to the Planning Commission , and in so doing has determined that ordinance variances are required as noted in this resolution. Variances have not been applied for by the applicant and the need for these variances was not adequately investigated nor justified by the City Staff or the Planning Commission. The Planning Commission made no recommendation for approval of any performance standard variances , with adequate gross lot area being the major factor in their recommendation for final subdivision approval. 23. The granting of the required variances ���ould result in the following violations of Section 32 . 340 of the Zoning Code with which the applicant must first comply before the required variances can be granted: a. The variances would have an adverse effect upon the health, safety and welfare of the community for the reasons outlined herein. b. The safety and welfare of the community would be adversely affected for the reasons outlined • herein, especially increased traffic and potential drainage problems . PAG E�_O F 11 • � Cit� of ORONO RESOLUTION OF THE CITY COUNCIL � NO. 1247 • � • • c . The amount of light and air in the neighborhood would be diminished by adding a structire on what is effectively a substandard lot. d. The values of surrounding properties will be adversely affected as testified to by all adjoining property owners. e. There are no special conditions applying to the land in question which are peculiar to the land or immediately adjoining property. f. The condition of having a large or irregularly shaped lakeshore lot occurs generally throughout the city and also within LR-1B Zoning District. g. The granting of the application is not necessary for the preservation and enjoyment of a substantial • property right of the applicant. h. The granting of the variances will impair the health, safety , comfort and be contrary to the intent of the Zoning Code, Platting Co3e , and Comprehensive Plan. i. The granting of the variances will serve merely as a convenience to the applicant, and is not necessary to alleviate demonstrable hardship or difficulty. 24 . The applicant has not introduced any evidence contrary to any of the above findings of fact. The ap�licant has claimed only that Lot 9 would be o� greater value to him if he could sell it as two building sites instead of one , and particularly if he could obtain full riparian rights and lakeshore access for the second proposed building site as we11 as for the existing residence . 25 . In review of the record of these proceedings , the council notes that there has been continual confusion over whether or not the Hepp application reauired variances from any Zoning or Platting Code performance standards . The neighbors have argued continually against granting of any variances . The Planning Commission refused to grant any variances , but without benefit of legal counsel , eventually decided to recommend approval of the proposal under the impression that no variances were necessary. • PAG E�O F�_ • � C�t� o� ORONO • RESOLUTION OF THE CITY COUNCIL • NO. 1247 • ' • • The City Council has throughout its review also stated that if there were found to be �ariances required, that the subdivision would be denied. Dur- ing the Council ' s review, the City Attorney gave his opinion that certain variances would be required, notably from Section 39. 140 (3) . Thereafter, the City Staff was directed to prepare a resolution incorporat�ng all the facts from the record so that the Council could either approve or deny the subdivision based upon those facts. When the staff attempted to reconcile the findings of the Planning Commission with the opinion of the City Attorney , the Staff found it impossible to prepare a resolution without further Council direction concerning the need for variances . At the February 11 , 1981 meeting, the Council again reviewed the record and found for the first time that variances were indeed required. The Council directed staff to prepare a resolution that, if adopted, would •deny any variances required and therefore also would deny the Hepp applica- tion for subdivision. This resolution incorporates that direction, including citation of all applicable ordinance provisions which support the finding that variances are required. 26 . Denial of the required variances , and therefore denial of the sub- � division application, does not constitute a taking of property or �oss of substantial value because Lot 9 has always been one residential build- ing site, all of which has served as required area, yard and open space for the residence which continu�s to occupy said lot. Applicant Hepp purchased Lot 9 in 1971 as one lot containing one residence, has enjoyed its benefits as a fully conforming residential lot within the LR-1B Zoning District for ten years , and could continue to enjoy the same benefit and value without the requested subdivision. 27 . This denial is specifically based upon the final subdivision application as shown on Exhibit A. However , in order to provide the applicant with future direction, the City Council notes that many of the same variances, and additional variances not herein enumerated, would be required in order to approve any of the other plans for subdivision of Lot 9 as reviewed in the proceedings of this application. Review of said variances would be subject to the findings and strict interpretations of ordinance require- ments as set forth in this resolution. • PAGE 10 pF 11 . . � • l Cit� of ORONO RESOLUTION OF THE CITY COUNCIL � NO. 1247 • ' • • Adopted by the City Council of the City of Orono on this ��� _� day of ��-C%;�,�,.��� . 1981 . � � "� William B. Van Nest, Mayor • ATTEST : ��- � � Walt R. Benson, City Administrator `%��!��--�;��> Alberta Strom, City Clerk • PAGE 11 pF 11 .� , , •„',♦�t' ` �� � ��,\\�i �. ., r�r �:-•��� r•, ,��T�, . 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