HomeMy WebLinkAboutResolution 1247 . . �
u :: l Ci.t� o� ORONO
• ��
RESOLUTION OF THE CITY COUNCIL
� NO. 1247
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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.
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�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
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NO. 1247
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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
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�� � 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
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`= 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.
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PAGE 5 OF 11
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� 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
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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
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� 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
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� 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
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