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HomeMy WebLinkAboutResolution 8519 E Resolution No. 851 _ RESOLUTION GRANTING JACK RHODE A VARIANCE TO ALLOW CONSTRUCTION ON THE LOT KNOWN AS 1410 BOHN'S POINT ROAD WHEREAS, Jack Rhode has applied for variances to allow for the construction of a single family residential home on his lot commonly known as 1410 Bohn's Point Road, and . WHEREAS, Jason C. Becker and Mr. Lauer, neighbors who have property adjacent to that lot, have appeared and expressed concerns related to the possible construction sites on that lot, and WHEREAS, the applicant, the neighbors, city staff and city council have raised at different times numerous facts and legal questions concerning the application for variances, and WHEREAS, the planning commission, city council and staff have studied this application at length, and have studied the testimony and memoranda previously submitted by Mr. Rhode and his attorney, James T. Swenson, Esq., and Lawrence Q. Brynestad, Esq., and the material submitted by Mr. Jason Becker and his attorney, Jerry Rice, Esq., and WHEREAS, the city council has reviewed this testimony at city council meetings on August 8, 1977, August 22, 1977, and October 11, 1977, and WHEREAS,'the city council is charged with the responsi- bility of enforcing the Orono zoning code in order to promote the intents and purposes thereof including the preservation of the health, safety, and welfare of the citizens of Orono, NOW, THEREFORE, BE IT RESOLVED, that based upon all the testimony and memoranda submitted by the applicants, his agents, the neighbors adjacent thereto and their agents and city staff, the city council grants the variances as noted hereinafter for the following reasons: a I. FINDINGS OF FACT - 1. That Jack Rhode's lot, Bohn's Point Road, is a lot of January 1, 1975, under single LR -1B use district. r commonly known as 1410 record existing upon separate ownership in an 2. The lot does not meet the minimum requirements of the Zoning Code as to area and width for a single family dwelling in an LR -1B use district. a. The lot is 29,300 square feet in area, based upon the survey of Gary L. Gabriel. b. The lot is 107 feet in width. C. The area and width are not within 80% of the minimum requirements and therefore council approval of a variance is needed before a single family dwelling can be constructed thereon. 3. The lot is isolated from other undeveloped land. It is surrounded on all sides by lakeshore or lots con- taining existing single family dwellings. a. The lot is therefore unique and the general conditions of the lot are peculiar to such property. 4. The lot is presently served by the public sani- tary sewer system. 5. The proposed location of the single family dwelling meets the 35 foot front yard, 10 foot side yard and 30 foot rear yard requirements. 6. The existing carriage house is located 24 feet from the rear lot line. 7. There is presently in the chain of title an easement which purports to provide for a walkway over the lot to the lake. 8. The easement runs over one of the side yards. a. The easement excludes any driving privileges. b. The side yard affected by the easement will remain covered by grass or foliage. C. There will be no building or other obstruction in the easement area. (1) The access to the proposed dwelling in case of fire will remain the same as if no easement existed. (2) The light and air within the side yard will remain the same as if no easement existed. 9 E (3) The openness or "open space" of the side yard will remain the same as if no easement existed. 9. The proposed location of the single family dwelling is set back more than 75 feet from the shoreline as required by the city ordinance. a. The proposed location of the front of the house exists closer than the average distance from the shore- line of existing residence buildings and nearby lots. b. The "average set back requirement" was not designed nor has it been interpreted in the past to prevent the development as proposed on this sort of unique angulated shoreline adjacent to Jack Rhode's lot. C. The intent of the "average set back requirement" was to protect the sight lines of neighbors. d. The only neighbors whose sight line or view of the lake will be obstructed by the proposed location, the Lauers, have no objection to the proposed location of the dwelling. 10. The city council has granted variances in such cases in the past. 11. A prior house, now removed, was approximately 40 feet from the lakeshore. 12. Mr. Lauer wants the building to be as far forward as possible. 13. Mr. Becker wants the building as far to the rear as possible. 14. Less than 25% of the area lying between 75 feet of the shoreline and the rear lot line will be covered by "hard cover." 15. The carriage house, presently in existence on the lot, was in existence at the time of the passage of applica- ble ordinances as well as at the time when Mr. Rhode's lot was created and given its description as presently recorded. 16. Mr. Rhode's proposed use of the carriage house for storage of his passenger cars and personal belongings does not qualify the house as a garage and therefore an accessory struc- ture. The carriage house is in excess of the size limitation for an accessory use. Such a continued use of the carriage • house would be adverse to the intent and purposes of the Zoning Code, would result in diminution in value to the surrounding property. Plans for the house show construction of adequate garage and storage space attached to the home. There would be too much hardcover if the carriage house remained and the proposed house was constructed. 17. There is presently in existence a purported walk- way and lake access easement that runs over the land and pur- portedly allows the easement holders to construct a dock on the lot. 18. There is presently in existence one dock used jointly by the two easement holders. 19. Prior to purchasing the lot, Mr. Rhode discussed the "buildability" of the same with Hank Muhich, Zoning Administrator. 20. Mr. Rhode was told that lot had in the past been determined to be "buildable" by prior council action. 21. The fact that Mr. Rhode's "lot of record" exists isolated from other undeveloped land makes it unique and different from the conditions which apply to other land in • the area. a. The substandard width and area are peculiar to the lot and do not apply generally to other land in the area. b. The lot cannot be combined with undeveloped land. (1) Mr. Rhode's predecessor in title, Mr. Fred Rogers, never had record legal title to the lot at the same time he had record legal title to any adjacent lot. (2) Mr. Rhode's predecessor in title never had an equitable interest in the lot at the same time he had an equitable interest in any adjacent lot. (3) It was never possible for Mr. Fred Rogers to have combined what is now Jack Rhode's lot with what is now Jason C. Becker's lot. By the time Rogers acquired an interest in Rhode's lot, he had given up his interest in Becker's lot. 22. It is necessary that Mr. Rhode be granted a vari- ance as to lot size and width to preserve his enjoyment of a substantial property right, to -wit: the right to build a single family dwelling on an LR -1B lot for which he paid $45,000. • 23. Without the variances as to lot size and width, Mr. Rhode would suffer the particular hardship of not being able to use his residential lot for residential purposes. 24. Granting the variances as to lot size and width will not be contrary to the intent of the zoning code. a. There will be no threat to public health occurring because of excessive crowding of private sewage dis- posal systems. b. One more dwelling in the already developed area will not materially increase the density, as long as the present carriage house is removed first, prior to construction. c. Adequate open spaces for access in case of fire will insure that there will be no increased danger to the safety of the neighborhood. d. No impairment of morals will result from the pro- posed construction of the single family dwelling. e. The existence of one more dwelling in the area will not materially increase the traffic in the area. • 25. Requiring Mr. Rhode to build in a location further back than proposed would amount to a practical difficulty as it would have a deleterious effect on the property values of all concerned and on the strength and durability of the dwell- ing because of soil conditions. 26. The same conditions outlined above apply to grant- ing a variance as to the "average set back" rule, to -wit: it will not be contrary to the intent of the Zoning Code and there will be no adverse effects. 27. The planning commission, after hearing testimony, recommended to the council that Jack Rhode be granted a vari- ance from the "average set back" requirement, which would allow him to build as proposed. 28. Any variance for the lot should not be granted unless carriage house is first removed. The above findings of fact are in part based upon and dependent upon the following findings of fact: A. That the single family residential home is to be built in a location noted on Exhibit A attached hereto and that prior to any construction that a survey be conducted to insure that the house is located as noted on Exhibit A and that the city zoning and planning administrator is informed of the commencement of construction at least 24 hours prior thereto. B. That there be only one dock allowed on the Rhode lot which dock shall be no greater than 100 feet in length. C. That on the Rhode lot either attached to the dock, moored in front of the lot or located on the lot, there may not be at any time more than three boats moored or stored. D. That a resolution be filed in the chain of title for the lot noting that the city council hereby finds as follows: (1) That the existing easements which purport to grant dock rights and walkway rights to the lake are invalid in that they were granted in 1974, and the sub- division ordinance in effect at that time and to this point in time requires that any division of land of that size including a division for easement purposes, required compliance with the subdivision ordinance of the City of Orono and these easements did not meet those requirements. (2) That the action by the city council approving this variance does not in any way constitute approval of the joint use of the lake shore on that lot by any- one, the joint use of any dock on that lot, or the existence of the purported easements to the lake. (3) Any joint use of the dock presently and in the future may be only pursuant to an annual joint use dock permit as set forth in Chapter 74 of the Orono Municipal Code. E. That the granting of a private dock rights or pri- vate dock easements on the lot is not a permitted or condi- tional use in that use district and that any such easements are invalid under the city ordinances. F. That Mr. Rhode and any and all other owners of the lot prior to the effective date of this variance, must execute a restrictive covenant in the form approved by the city attorney, which restrictive covenant sets forth the above items relating to docks and which hereinafter will restrict the use of the property to one dock of 100 feet in length, with not more than three boats of any size or shape moored at the dock, in • front of the lot, or on the property at any time. G. A dock is an accessory use and must be attached directly to the residential lot for which it is designed to serve. H. The three boats allowed pursuant to this resolu- tion may be owned only by Rhode or the two present easement holders, Gregg Hannah and Darrell Stewart. I. This resolution does not grant any continuing or vested right in Rhode or the present or future easement holders to maintain or utilize the dock. II. GRANTING THE VARIANCES Based upon the above findings of fact and contingent upon specifically those items as noted in paragraphs A through I, the city council of the City of -Orono grants the following variances: 1. A variance as to lot size and width with respect to the lot commonly known as 1410 Bohn's Point Road. 2. The variance from that part of Section 34.201 of • the Orono Zoning Code which provides that no building may be located closer to the shoreline than the average distance from the shoreline of existing residents' buildings on adjacent and nearby lots. 3. The above variances are contingent upon and shall not be effective until the existing carriage house is removed at Mr. Rhode's expense from the property and execution and filing of the restrictive covenant relating to the use of docks on the Rhode lot as set forth in the findings of fact, in a form acceptable to the city attorney and a filing by Mr. Rhode of a title opinion on the property on an up-to-date abstract showing all people with any interests in the property, which people must thereafter execute the restric- tive covenant. 4. The city council hereby finds that the variance shall be denied and will be considered to be invalid unless the above items are completed to the satisfaction of the city prior to the granting of a building permit, and variances would have been denied except for Mr. Rhode's agreeing in writing to the provisions of this resolution. This resolution was adopted by the city council of • . the City of Orono by a vote of 4 ayes and 1 nay on November 14, 1977, and reaffirmed by a vote of 4 ayes and 1 nay on November 28, 1977. 'William B. an est, Mayor N • 0 ATTEST: Walter R., enson Clerkl inistrator I have read the terms of the above resolution and agree to be bound by them. Jack Rhode Rhode " \ LWIE /.w4ttETDI4KA .i • i � I ra Y..y+•+�o `�� O N .K AIA f y a ~ bio arw 7XIS 1 m tsi+t b4 7ffl SCFAOX A* t a 7� M'7YXf� ,V_ _ ' LfNt Q.0 MAYMfYN /RsV[CTIpN JU6K KAwtR Aa/'a •%KSK 7wNO tARIf .lec I. /FN• 7 Satsf�.ts \ - / LINT A•A���. I ` IF ARJ�wiwCa RVAPO ✓K=. • Exr+T. 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