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HomeMy WebLinkAboutResolution 897S 0 Resolution No. 897 RESOLUTION OF THE CITY COUNCIL DENYING THE PLAT SUBMITTED BY JOSEPH BRAUN WHEREAS, the City Council of the City of Orono is charged with the responsibility of controlling subdivisions of land within the City of Orono pursuant to Minnesota Statutes, §462 in order to promote the general health, safety and welfare and to prevent the creation of public harm within the city, and • WHEREAS, Joseph Braun has applied for the subdivision of land located within the City of Orono into two separate lots, each of which will be substandard according to the zoning and platting ordinances and comprehensive plan of the City of Orono, NOW, THEREFORE, based upon the recommendations of the Planning Commission and staff, and after having heard and reviewed lengthy testimony and reports, the City Council of the City of Orono denies the requested subdivision and if any variance has been requested, the City Council denies the variance based upon the following facts: • 1. The original application for subdivision of the land was made by Joseph Braun on February 25, 1974. 2. At that time the proposed lots did not meet the minimum lot width requirements in that each lot was only 50 feet in width at the lakeshore. 3. In order to approve a subdivision of this type, with two substandard lots as to lot width, Mr. Braun should have filed for a variance and no variance was applied for at that time. 4. The Zoning Administrator's memo of February 13, 1975, noted probable soil problems and drainage problems on the proposed additional lot which should have been answered by the applicant. 5. The Planning Commission reviewed the proposal on March 17, 1975, and did not call a public hearing for citizen information or participation. 6. The City Council on March 25, 1975, approved the preliminary plat conditioned upon the payment of $580 water unit assessment, which assessment has never been paid by • the applicant and conditioned upon the completion of the final plat and other prerequisites of final plat approval. 7. On May 7, 1976, the then building inspector, Alan Olson, met on the site with Mr. Plowman and the building inspector's report shows that there was a need for soil test- ing and drainage problem investigation prior to any final action. 8. On or shortly before June 17, 1976, the city received the mylars and hardshell drawings for final plat approval. The drawings were dated April 12, 1976, and were submitted to the city over one year after the preliminary plat approval on March 25, 1975. 9. The Planning Commission reviewed the final plat on June 21, 1976, and recommended approval conditioned upon the City Engineer's approval of the drainage plan and upon receipt of the park dedication fee and the other prerequisites of the final plat. 10. No variance had been applied for still at this point in time. Both lots would have required the granting of a variance during the subdivision process. 11. On June 28, 1976, the City Council approved the • final plat for Joseph Braun subject to the City Engineer's approval of the drainage plans, which were not submitted to the city until January, 1978, almost three years after the initial application and one and one-half years after the contingent approval of the City Council on June 28, 1976, and contingent upon the other prerequisites of final plat approval. • 12. On October 26, 1976, Steve Plowman applied for a building permit on the proposed additional lot, which appli- cation was held without approval due to the lack of drainage plans and the lack of final subdivision completion and approval. 13. On August 24, 1977, almost one year after the application for a building permit, the plans held by the city for the building permit were destroyed due to the lack of interest or contact from Mr. Plowman or Mr. Braun. 14. On October 17, 1977, the city received a letter from Mr. Braun requesting reapproval of the subdivision request "which was acted upon at the City Council meeting of March 25, 1975," thereby indicating his knowledge of the lack of subdivision completion after two and one-half years. -2- 15. On October 24, 1977, the City Council determined that the final plat was never completed according to the con- ditions of prior approval, that there had been substantial changes in subdivision procedure and zoning code interpreta- tions and the implementation of the comprehensive land use plan for the city, since the original application, that apparently the Planning Commission and City Council before may have over- looked the fact that variances were required for both lots, that variances had not been applied for by anyone for both lots, and that other issues that had been raised by the Planning Commission and City Council had not been resolved by the applicant, and that therefore the Planning Commission should review the proposal as a preliminary plat application. 16. On October 28, 1977, the city received a letter from Mr. Plowman wherein he admitted being told several times by the city personnel that there were outstanding requirements to be completed prior to final plat approval and approval of the proposed building site. 17. On January 16, 1978, the Planning Commission held the first public hearing on the proposed subdivision and received letters of objection from neighboring property owners to any proposed variances to be granted. 18. After closing the public hearing, the Planning • Commission recommended denial of the subdivision because of the 50% variance required for the lakeshore lot width, which variance had never been applied for and which variance would reduce an existing conforming lot width of 100 feet to two non -conforming lot widths of 50 feet, all in violation of the zoning code, platting ordinance and the Orono Comprehensive Plan. n U 19. On February 6, 1978, a review of the proposed subdivision by the City Engineer indicated that there would be a need for drainage easements which have never been shown on the mylars or on the hardshells and that there was a cause for concern about the lakeshore and drainageway siltation and sedimentation problem, and that there was a basic concern about the suitability of the site for residential uses due to the extremely poor soil bearing conditions and restrictive methods necessary to overcome same. 20. Throughout the three years that this proposal had been before the city, the applicant had repeatedly failed to proceed to completion despite requests by the city to do so. 21. There are serious questions of suitability of the site for proposed residential use because of the soil types and drainage problems. -3- . 22. At some time during this process, Mr. Braun pur- ported to sell the proposed lot to Mr. Plowman"via a contract for deed. This subdivision of the land by contract for deed has never been approved by the city and, therefore, is not a legal transfer of land since it was prior to the final filing of any plat for the property pursuant to Minnesota Statutes, §§462 and 505. 23. The Orono Zoning Code provides that all proposed lots,in the proposed subdivision shall meet the following minimum requirements in the LR -1C -Use District in which this land is located: A. 34.552 lots. The following minimum requirements shall be observed. Lot Area. One-half acre. Lot Width. 100 feet. Front Yard. 30 feet Side Yard. 10 feet Rear Yard. 30 feet • Side Yard Adjacent to Street. 15 feet. • 30.040. Lot Width. The maximum horizontal distance between the side lot lines of a lot measured parallel to the front lot line and at the rear of the required front yard. Lot Line. The property line bounding a lot except that where any portion of a lot extends into the public right-of- way or a proposed public right-of-way, the line of such public right-of-way shall be the lot line. Yard. A required open space on a lot, which is unoc- cupied and unobstructed by a structure from its lowest ground level to the sky except as expressly permitted in the Zoning Code. A yard shall extend along a lot line and at right angles to such lot line to a depth or width specified in the yard regulations for the district in which such lot is located. Yard - Front. A yard extending along the full width of the front lot line between the side lot lines and extending from the abutting front street right-of-way to a depth required -4- • • n LJ in the yard regulations for the district in which such lot is located. 31.410 Reduction Prohibited. No yard or other open space shall be reduced in areas or dimensions so as to make such yard or other open space less than the minimum required by the Zoning Code and if the existing yard or other space as existing is less than the minimum required, it shall not be further reduced. 24. The front yard in the lakeshore property as decided by the Minnesota Supreme Court in the case of Girvan v. County of LeSueur, 232 N.W.2d 888 (1975) and as applied by the City of Orono, is the yard adjacent to the lake. 25. The proposed subdivision, if approved, would result in two substandard lots abutting on Casco Cove. Each lot must have a minimum lakeshore frontage width of 100 feet. The pro- posed lots have only 50 feet of lakeshore frontage. The Planning Commission and City Council require that there be 100 feet of lot width at both the building location and the lakeshore. Other subdividers have been denied variances to reduce the number of feet from the minimum on the lakeshore in a manner similar to Mr. Braun's application. 26. Variances may only be granted to the above regula- tions only pursuant to §32.300 through 32.371 of the Orono Zoning Code. 27. Mr. Braun has not applied for any of the above variances. Even if Mr. Braun had applied for the variances or is deemed to have applied for the above variances, the variances are denied for the reasons set forth herein: (1) The granting of the variances would adversely affect the purpose and intent of the Zoning Code and the wel- fare of the public. (2) There has been no request for variances referred to the Planning Commission nor has there been a waiver of the requirement that the Planning Commission review any proposed variances pursuant to §32.330. (3) The Planning Commission after having heard all of the testimony and reviewed the staff reports, has recommended denial of the proposed subdivision and any variance, if one is applied for. -5- . (4) The City Council cannot make any of the findings of fact required by §32.340 of the Zoning Code to warrant the granting of a variance and specifically finds as follows in regard to §32.340: i • A. There are no special conditions applying to the structure or land in question which are peculiar to such property or immediately joining property; and B. The conditions which the applicant or someone else may argue are unique, are not unique and apply generally to other land or structures in the district in which the land is located; and C. The granting of the variance is not necessary for the preservation and enjoyment of a substantial property right of the applicant; D. The granting of the proposed variance will impair health, safety, comfort, morals, and would be contrary to the intent of the Zoning Code; and E. The granting of such variance will merely serve as a convenience to the applicant and is not necessary to alle- viate demonstrable hardship or difficulty. 28. The City Council further finds that the granting of a variance would result in: A. Further traffic congestion on a narrow substandard residential curving, dead-end roadway. B. The diminution in value of surrounding properties which were constructed in reliance upon the Comprehensive Land Use Plan, the performance standards of the Zoning Code and Subdivision Ordinance. C. Allowing for additional boats to be placed on Casco Cove which is silted in already, with one narrow channel out- let and which is already congested with boats and boat traffic from other lots abutting on Casco Cove. D. Two lots with lakeshore widths of only 50 feet, which is far less than the widths of other lots similarly situated in the area. 29. The Subdivision Ordinance requires that all pro- posed lots meet the minimum requirements of the Zoning Code unless a variance is granted. Pursuant to §39.140, it is the requirements of the Subdivision Ordinance that residential ' lots as to size and area be governed by and subject to the • policy of the City Council in order to promote the health, welfare, sanitation and the like of the neighborhood and all proposed lots should conform in area to the existing lots in the general area of the proposed subdivision and conform to the minimum building lot sizes established by the Zoning Code. 30. The proposed lots do not meet the minimum require- ments of the Zoning Code. 31. The proposed lots do not conform generally to the existing lot and existing lots in the area. Mr. Plowman, who purportedly is a contract for deed vendee in a contract for deed from Mr. Braun, has argued that the final plat has been approved previously and therefore any required variance was approved by such action. Mr. Plowman's argument fails for each of the following reasons: A. It is the city's long-established policy that any final plat which has not been filed within one year with the Office of the Hennepin County Recorder is void and the subdi- vider must reapply under all existing ordinances, regulations and policies. This requirement has been applied to numerous subdividers prior to Mr. Braun. • B. Any variance which may have been granted expires within one year after the approval pursuant to §32.371 of the Orono Zoning Code which provides: • "Variances shall expire one year after the date of council approval if not used. Any change in use of the property shall require a new variance." C. No separate variance application has been filed by Mr. Braun or by anyone else for this property and therefore the City Council may not approve of one at this time. 32. The reasons for any prior delay were as admitted by Mr. Plowman and Mr. Braun: A. The two of them could not agree as to who would pay the park dedication fee, the water assessment, the cost of sur- veys, the soil borings, and other costs incidental to the subdivision procedure. B. Mr. Plowman signed a contract for deed for the pro- posed lot in 1975, prior to the final plat approval and prior to the filing of a record plat with the Office of the Hennepin -7- County Recorder. The signing of the contract for deed prior • to final city approval and filing of the record of plat, was in violation of Orono's Subdivision Ordinance and State Laws, Chapters 462 and 505. Mr. Plowman's purported purchase of the property is therefore of no legal effect in regard to the Orono Zoning and Subdivision Ordinances. The above resolution was reviewed and approved on the 13 day of April , 1978, by the Orono City Council by a vote of 4 ayes and 0 nays. Councilmembers voting for approval: mayor Van Nest, Butler, Paurus & Pesek Councilmembers voting against approval: None It 0C illiam B. van Nest, Mayor ATTEST: • Walter- R. S�4iiR6n Clerk/Admin trator