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LAND USE PLANNING EXHIBIT 1
ZONING VARIANCE APPLICATION
CITY OF ORONO �'�'
P.O. son 66, Crlstal dal, Minnesota SS7i7 477-7751 {
4
I111Sr6UC710NS: Please first read the attached Information Sheet. Complete Item I - 17
(Type or Print). If needed, attach letter or other Information to better
describe your request. Incomplete applications will not be accepted.
Application to modify resolution No. 851
1. PROPERTY ADDRESS 1410 Bohn's Point Road
loyal description shall be shown on attached Survey. Exhibit 7
2. APPLICANT Nome Jack F. Rhode Phone 471_7101 Res._
0501
Meiling Address 1690 Shadywood Road
If Applicant 10 not owner, explain
3. OWNER Nam Same Phone
Melling Address _
Date Property Acquired "'"�, th/Year)
I (eta) (do not) also own n parcels of land
4. AGENT me— James T. Sw-nson Flume 333-1341_
rlr. Mackall, Crounse & Moore
11s111n4 Address1000 First National Bank, Minneapolis, MN
5. NOTTCES Should be sent to: Applicant'
Omer
6.
7.
PRESENT ZONING USE DISTRICT
in limbo
PRESENT USE Residential X_ (Other)
Y+
LIST OF EXHIBITS
Derrcription
Initial Application
must include:
✓1
Applicati ro
/aCr. rr
✓?
lv C07~ Property era
�`1
7
/.t' Z,Q .
/6 Carti( fi Its, of
aS
G rem Receipt I9
Oste e ved V
b
Staff _formation
1j4
_ Plat Map
Inventory
6
Staff Comments
Other Informatiem
7
a
9
10
Agent � 11
12
Vacant Land X Vacant building(s) X Occupied suilding(s)
8. DESCRIBE REQUEST ESTIMATED CONSTRUCTION Ct(S
_ establish new use X continue or expand existing use X build now _ add on _ remodel rplose
Describe request :n detail: see previous application and March 10, 1980
letter, copy attached
e IU!lifts Addree• VV v v Omer y 54✓' 10 _
NO CES Should be sent to: A 1leant
Agent 11
6. PRESENT ZONING USE DISTRICT TIP-2 '� 12
in limbo
7. PRESENT USE Residential _ X (Other) _
Vacant land X Vacant Building(*) X Occupied Building(s) _ �• ..-�
8. DESCRIBE REQUEST ESTIMATED CONSTRUCTION C�fiT,�
—establish new use X continue or expand existing use X
�. R _ build new _ add on _ remodel replace
Describe request :ten detail: sec previous applicat ,_nn and March 10, 1980
letter, copy attached
VARIANCE(S) REQUIRED to do the requested Wort: _X hoe Area _� La- width hardcover
*
_x_ Setback ( X front _ _ _ Side Rear) Other
*Judge Nicholson staled that a variance was not nnn�e�edeppdQ - See March
10. Describe UNUSUAL PROPERTY CONnITIONS preventing compliance with tent400,da`1[a0Q1r�,�,�trsQY -
See Resolution No. 851 and .Judge Dana Nicholson's July 24, 1978 Findings
of Fact, Conclusions of Law and Order for Judgment
11. Describe UNDUE HARDSHIP or PRACTICAL DIFFICULTY resulting from striet entoreea,mt of aaoue
regulation* See Resolution No. 851 and Judge Dana Nicholson's July 24, 1978
findings of Fact, Conclusions of Law and Order for Judgment -
12. Describe EFFECT OF PROPOSED WORK on neighboring properties *ad on the neighborhood is general:
See Resolution No. 851 and Judge Dana Nicholson's July 24, 197/8 Finlinas
_of Fact, Conclusions of Law and Order for Judgment
The APPLICANT and the PROPERTY OWNER must sign and date this application.
The AIrL'CA fy hereby agrees to provide all infory tion The OWWX hereby acknowledges and agrees to this applicstlap
requtrod or requested by the Zoning Administrator, agrees and further suthortave reasonable entry onto the property
to pay all fees and/or unusual asp.nses incurred In review by Ctty staff, consultants, agents, eaaisaton members,
of this application, and cerrtfies that the inform%atitxn and Co.arcul ache» for purpoaea o/ investigationaad
supplied to [rue and rorr.,R to the best of his knowledpr. verification of this request
11h! i . �( GKdMM .: R ►. � �h'XL9. � �%���►/ ilia
Applicant's Signature Date .`,inerIs Signature oat* �_r
W 11 i l PROPERTY OWNERS LIST- C> 'ovC
EXN 2
OEPARTMENI or FIfJANCE
A-603 GOVERNMENT CENTER
MINNEAPOLIS, MN 55487
LIST SIZE.7_.�_t�.__
FEE OWNER
DI -
r
�Z//41, -_LT -L_L
{�9/5 Inev -0/l /
I CERTIFY THAT THE FACTS REPRESENTED ON THIS
CERTIFICATE ARE AN ACCURATE A,.O TRUE REPRE-
SENTATION OF INFORMATION AS IT APPEARS THIS
DATE ON THE RECORDS OF THE MEN14EPIN COUNTY
FINANCE DIVISION, TO THE BEST OF MY KNOWLEDGE
AND BELIEF.
HENNEPIN CO F
DA L B
TAX PAYER /
MAILING ADDRESS
•, 34 124--
C r
N�
v
1"'467 ���yz�T 4-Vv
PR,P_ER?._Y ADDRES
Qv� sE
2700
r
— - - -IL- _.
GC A&Nt!!
I
06'0.040 „d; z-ll
Ilij VPAI
LVA w '
MV
L'J
AM WD
VNA" a OR M®
Ir
a-.
M 123.4 PROPERTY OWNERS LIST -- O C►/VC)
OEf NTMENT OF FINANCE
i CERTIFY THAT THE FACTS REPRESENTED ON THIS
A-603 GOVEP"MFNT CENTER CERTIFICATE ARE AN ACCURATE AND TRUE REPRE—
SENTATION JF INFORMATION AS IT APPEARS THIS
MINNEAPOLIS, MN 334e7 DATE ON THE RECORDS OF THE NENNEPIN COUNTY
FINANCE DIVISION, TO THE BEST OF MY KNOWLEDGE
AND BELIEF
NENNEPIN CO FINANCE VI pN /
LIST SIZE DATE •Y
FEE OWNER
I )WIAI&:-5, Hoof -'f--:
TAX PAYER /
MAILING ADDRESS
P R P T,Y ADDRESS,
--
�, yr,�rr10 -imonorloommr,m
T11— /I
7-
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/NT ,
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.v v/ r r r r v - - i r
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---- --
- VUAGI -- OF - ors—
-
'� P i - -- -
CITY OF ORONO
EXHIBIT 5
LAND USE PLANNING
ZONING VARIANCE INVENTORY
VARIANCES REQUIRED
DENSITY n)!u►sun rtvujgp
tat As ee l e 43 5i;o sf
tot r)dt%
#tlz*
4 6
Zoning Use District __.C97/AO-�_
A�1vAL v,,.I,.N(-t _ cu®t scr,7400!
897 sr JR. D
1.30 s um. /e rr 7 `l.'
SETBACKS
n�lYUM wVI!ea q!—r114G _ -- ►MQ►clsm__-_- -
VA11111MQ_ _
-___--
coat SE o�
Estreet (front)
__
-- - _. _- __ _ AIW-_-------
��.._�
.vim_ _
--
3s,.4�
Side
leaf
as". to still.
3/. 370
_ _
7S M.
7� FT
__ma
�
3-90
L1,e.laore
'Wetland.
?< rt.
A/ergC :
osmr JXA0eoAtWA,tf7Vi"' AS ff&ft4v Av ^444/
PERPLIMCD rXISTIM
FPC'PC)' M
T07AL
HARDCOVER
LOT AJMR
ray ..t.- --
MA"CO'V1R 1lAADCOVER
s*t=------lt �.t._--_.. �E
HAAIKOVLA
'=ts------�4
bM IAN(2
'-�'--__ __�
ccoc ScLgzm
-
31.671
trt1l o - 26 rt.
afc _
-
CP% /if /25,—o-'QO
- -- —.---
- — -
- --
-
x. �o=_
Lake o - 7S Ft.
r
• 1.� -ft"-2o7
Lake 7S - 250 rt.
25%-!l.Zlt�=
—_iPi�a>>r .__. • e
--I�l�
A11W
aa.aoi
take i�o ., soo cos rt _ — — ,_— _. _
Lake SOO - 1000 rt. 35%_—
AE ,V"r : 7*15 45£5 MCYI ACK•lO rA17
34. "2
OTNE_R_SECTIONS �,,��,-,� _ L7c1`_,TI►rG - 'PAC o{a`.ED vA111A_NCI---- -- (tiR)[ sc(T10)_
Delldanq ■elght laaaa.) _ ._.��% //✓���lZ�_.__ �fsf�`t. _i� `T �' ��, _
Parking 1KIn.) -- -_ ---
F 7--
sio! fT 3.4Cr<
Lake 250 - SOO rt. 30%
>..202
Lake SOO - 1000 rt. 35%_--
A� 455~; Dail A�'•�D F�t/l t�/�.CL ,tb7- Amos D
OTHER SECTIONS xr�g nil _— eat l rsryl►�c A- .aooe�asm _ VAR I Arles _ _----
fmallding ■eight (asaa.)--
Perking fish.) --__�-
A W-4! *f- 4 4 IX0 ' STA
- �T--
SW SY'T�K
LAND
f r7 5 -0 1
scot SLC`TICW
DIV1SI01: _ plat _ _ R1S _ &5!� unplatted • lota/Pa reel. per application -
AVAILAs11-17Y: adJacent lots/Parcels (e I _ .&rant Y occupied _ sa-e 91merahlp _—�.eparate o.Terahip
January 1, 1975 04nership At-,-tryle sr;erate _ cc-'.:tned with other parcels not In this application
T7ICGAAPIY Includear JL lsles>rore _ _ wetlende _ higl� ground ] we7 ground rolling hills
_ steep slopes open areas wc.cAed areas
GLoGRAPKY affecting application: _ unusual lot ahspe — unusual buildins location
lot Oise/shape: consistent - Incunsislent with neigi,Lorhr-od develupreent
ACCrSfr __, new _ le_ existing _ city ___ county/state L private
VT1LITIS. City saver-_I!f �vsllable connected: City water NQ available _ connected
septic •]stem _ __ nw pre,pos.d _ existing cunforwing _— existing •ubstandard — existing non- onfor-stnq
I ♦ Aril 174C1:
Subject lot is vacant — ucrupted
EXISTING LAND USL compared to sorting use district: k/ ronfcrmtng use cwrd,tlonal use _ r,�r, c)r.fCrminq use
►ROPMAL atf.cts _J!�, principal .— accessory building or use _
STRUCTURES
EXISTING sulil>1NG5 dD V do not comply wl" tvnir,q perfosmAnce stentiarde
1Sr'�£ �L4& . St CT OA K 15 _i f J / :% ._? 61 r ' /•. c Qf-�j(7
►tOPMAL TYFL: k�_,entltely WTV ulldi or A. `/ti,."�
_ review as IfM, bu SF Sint; or use (cost exroed■ SO% rMV) y �/t
review as EXPAltSl(et of existing (cost lose than SCM ) 1 �jw /+ MUIs Imv 5-O
txlat'ng building FAIR K RKLT VALUL WW)r ,� f- QQ_ ��c' q`, e( �4w 17e-5-
►eOfMAL __ will ill not seduce an emiaturg substandard yard distension
TAXES 6 ASSESSMENTS
ntoa.T. I/7
Iarte/Narr.la ,rued In cwmDn are are t legally essl►lned t" tan Purposes.
TAILS: ��ova
are MID current are DrLIWJUt]WT to Vast
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t., .
S OF A REGULAR ME£T1NG HELD OCTOBER 22 1974
Mr. Fred Rogers, 3175 North Shore Drive,
requested to be removed from the agenda at
this tir,a.
Welsh moved, Butler seconded, to grant the
variance for Fred Rogers, 1410 Bohn's Point
Road, conditioned on the following recommenda-
tions of the October 15, 1974 Planning
Commission Minutes:
1. No other variance but lot size and width be
allowed.
2. The present house be razed by August 1, 1975.
3. The barn be razed as soon as a new residence
is constructed.
Notion, Ayes (5) - Nays (0) .
Welsh moved, Butler seconded, to approve the
division for Charles Schoen, 1225 Briar Street,
to transfer 12' from Monterey to Block 3, Max-
wells, for the sole purpose of allowing a
garage to be built, conditioned on combination
of parcels after division. Motion, Ayes (5) -
Nays (0) .
Paurus moved, Welsh seconded, to grant a variance
for Russell Wenkstern, 645 North Arm Drive, of
15' from the required 75' lakeshore setback.
Motion, Ayes (5) - Nays (0).
Butler moved, Paurus seconded, to approve the
division for Dr. M. it. Yokoyama, 2675 Shadywood
Road, conditioned on both lots using the same
curb -cuts on Shadywood Road and stipulating
that all water and sewer assessments are paid
on both lots. Motion, Ayes (5) - Nays (0).
Mt. Samuel Harfield, Scotch Pine Lane, requested
to be removed from the agenda at this time.
Welsh moved, Paurus seconded, to approve the
building permit for Mr. Gary Dack, 4035 Dahl
Road. Motion, Ayes (5)- Nays (0) .
Representatives of the T.M._. Investment Corp.
appeared before the City Council to discuss their
proposed development at Watertown Road and County
Road #6. It was agreed by all parties concerned
that -the status of the rerouting of Hennepin
County Highway 46 in conjunction with the proposed
ring route was a factor and that t1ae Hennepin County
Highway Department was involved at this time with
developing a plan to acquire right-of-ways in this
area. It was further agreed that we would request a
piogress report on the status of this propose.! high-
way construction as soon as it is available.
•.::%% Page 2
, IEIC E
`175 North Shore Drive
VARIANCE
1410 Bohn's Point Road
DIVISION
1225 Briar Street
VARIANCE
645 North Arm Drive
DIVISION
2675 Shadywood Road
VARIANCE
Scotch Pine Lane
BUILDING PERMIT
4035 Dahl Road
PRELI14INARY PLAT
Watertown Road i 96
MWrFES OF A PLAMNING C014MISSION MEETING IIELD AUGUST 1, 1977
Mr. Olson advised that Council had referred this item
back to the Commission for reconsideration. When
applicant was advised of this action, he informed the
ty office that because of prior commitments he would
not be able to attend this meeting.
Hassel moved, Dunlap seconded, to table this application
until the next meeting. Motion - Ayes (7), Nays (0).
The Asst. Zoning Administrator advised that preliminary
and `'-al subdivision approval had been granted approx-
imat one year ago to this property. , However, the
pars-dication fee was never paid. Previous approval
was .Abject to a park dedication fee of $2,000 and
no lake access easement be given for Lot B.
Mr. Reardon was present. Commission reviewe6 final
proposal with applicant. Planning Commission ad%rised
applicant that it would be nece:;sary to record access
easements for Lot A through Lot b and that Lot B would
have no riparian rights.
Hassel moved, Guthrie seconded, to recommend final
subdivision approval as submitted subject to access
easements being recorded for Lot A through Lot B,
no riparian access for Lot B and a park dedication
fee of $2,000. Motion - Ayes (7), Nays (0).
- PAGE 3
0�5-46 AW 17A
ROBERT F. IIHITE
320 hDOIlI I LL ROAD
VARIANCE - REAR YARD SETBAC
(1275)
LAURENCE REARDON
(PHILLIP DYKSTRA)
3080 NORTH SHORE DRIVE
SUBDIVISION (FINAL)
(A 73)
The Asst. Zoni Adm' strator stated that Mr. Rhode _ -JACK RHODE
has submitted a new set of plans. fie has relocated
the house so that the lake edge of the house is in
line with the Becker house next door. The current
proposal has been moved back 35 ft. from the onlinxl
location. 7-.44 p/,��,"� iKs, li*«� Iop"
Jack Rhode, his architect Bob Peterson, and builder
Jerry Guetzkow were present. Mr. Rhode explained that
he was withdrawing his request to use the existing
structure as a guest house. He is now proposing to
use this building for storage. In terms of the topo-
graphy of the land, he preferred the original proposal
and felt that moving the house farther back was a
merit of compromise.
Mr. Peterson advised that there would be more costs
involved with the current proposal because the
farther back you go on the lot the more fill it will
take. There would also be a problem with the grade.
Chairman McDonald felt that after visiting the site
again this proposal had less of an impact to the Becker
r-operty because the side of Mr. Becker's home affected
l the proposal has no windows. This proposal also
appears to he more in line with the Becker home.
1410 BOHNS POINT ROAD
VARIANCE - LOT AREA & WII7I1
CONDITIONAL USE PERMIT
(0210)
�i•1c l%ia
MUTES. OF A PUNNING C0►f41SSION r4TTING HELD AUG III 1, 1977 - PAGE_ 4
40, !7b
Mr. & Mrs. Becker were also present. They expressed their JACK RHODE
concerns and objections regarding the proposal. Some of (continued)
these were: (0210)
(1) When was the land legally platted? It ,as their
understanding that if the land was legally platted
before the 1965 zoning, Orono policy would tend to
grant variances.
(2) Did prior owner own the lot as an adjacent property?
(3) Lot in question was less than the 1 acre i,rea and
140 ft. width requirements.
(4) His nearest neighbor is presently 140 ft. away. %hen
he pure.ased his house he was advised by his attorney
that the lot in question was unbuildable. Ile is
opposed to the 26 ft. setback on Mr. Rhode's house.
(5) Becker's prefer the quiet and felt that the noise
level would be increased.
(6) A variance had been granted in October of 1974 to
this property subject to no other variances being
granted and the carriage house being razed. Mr.
Becker felt this should be enforced.
(7) It is his understanding that a driveway should be
10 ft. from a lot line. Mr. Becker felt that the
proposed driveway for the Rhode property was too
close to the lot line.
(8) No more than 1 principal building located on the
lot.
requested that the Planning Commission should take these
.i.ems into account when making their decision.
After all the comments were heard from the concerned
parties involved, the Planning Commission discussed the
proposal before them.
In addressing the points brought ip by Mr. Becker, the
Planning Commission advised that the lot in question
was b substandard lot rather than ar, unbuildable lot.
The variance granted in 1974 and the conditions set
forth at that time were now void. However, the same
conditions could again be applied to this application.
Due to the fact that Mr. Rhode has withdrawn his
request to use the existing structure as a guest house,
`here would be only one principal building on this lot.
Concerning the driveway being too close to the lot line,
Orono code does not specify any setback requirement.
Commission also disaLtised the 7S foot lakeshore and
average setback in relation to this property and the
adjacent and nearby properties. Given all the facts,
they felt that Mr. Rhode was cooperative in trying to
resolve this matter.
MI;— JTES OF A PLk%NING Ca-r4ISSI0'N MEETING IIF.LD AUGUST 1, 1977 - PACE- S 4(#t t7c
E
ion also determined that if the proposed driveway be gravel, current proposal would be under the
dcover requirement.
There were some negative feelings on the Commission with
regard to the carriage house. Members Dunlap and Hurr
felt that there was too much building bulk for the size
of the lot and therefore the carriage house should be
removed.
Guthrie moved, Ilosfield seconded, to recommend approval
of the application subject to having a gravel driveway
in recognition of the total hardcover an the planned
house and existing building.
Motion: 4 ayes (Hassel, McDonald, Ilosfield, Guthrie)
2 nays (Dunlap, Hu-r)
1 Abstain (Hannah)
Asst. Zoning Administrator explained that this application
is for filling and grading within the lakeshore area.
This area had been dredged one time before and has filled
in over the years. Applicant is requesting permission
to refill area so as to be level of adjacent properties
and level off to make lawn area. Letter from engineer
recommended that the area should be riprapped across the
Front prior to any filling.
Mr. Metz was present. He stated that he was proposing
to use sand or area like fill for the project. Planning
Commission expressed concern about authorizing any filling
in the lakeshore area, but felt this would be the restoring
of a natural situation rather than creation of anything
new.
After some discussion, Hurr moved, Kassel seconded, to
re=ommend approval contigent on the fact that the shorelin^
be riprapped pri.,r to any filling and that the type of
fill be approved by the city engineer. Motion - Ayes (6),
Nays (0), Abstain (1) McDonald.
Planning Commission was informed that applicant had called
advising that they would he unable to attend this meeting.
Their request is for a conditional use permit for the keeping
of a horse. Applicant owns 1.13 acres at corner of Watertown
and Willow and has leased the adjoining property to the north
which is 2.68 acres. Mr. & Mrs. Gonsolus, property owners
across Willow Drive, were present and had some objections.
Adjoining property a.;n(-,r Risci ano has submitted a letter of
no objection to the maintaining of a harn on this property.
„iumah moved, Ilosfield so--onded, to table this application
JACK RHODE
(continued)
(M210)
5.,t,ee '1?77
��rnCN�cy fvi/�et./ w.".t
TI IEODORE � ETZ
4300 .'NORTH SHORE DRIVE
CONDI TI O.NAL USE PERMIT
(#286)
WILLIAM MARTIN
2 380 WATERTOIN?N R(1,D
CO.'NDITIQXAL USE PEP.MIT
HORSE X11) BARN
(N287)
until the next meeting to allow the Martin's to be present
to indicate where the harn is located on this lot and the
length of the present lease. Motion - Ayes (7), Nay$ (0).
MUNNET
IMAONER
REALTORS
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re1T1 !•S 1844
Mr. Jason Bect .:r
3145 North Shore Drive
Wayzata, Minnesota 55391
Dear Mr. Becker:
August 19, 1977
M'"O"Do
JUL ro ,moo
�' ! W07•�,
You asked that I give y-)u my opin`%n of the ramification,
of the proposed building on the lot adjoining your property.
I think that there are several things to consider and they
are as follows:
I. -Your new neighbor will be building within 1O feet
of your property line. This places him within
feet of your bedroom window. Naturally this will
affect your privac%• and also general noise Ievelr.
2. The proposed house will also partially ctjt off so^,e
of your lake views and this has the potential of
affecting you on a resale basis.
3. Since your home current?v has an approximate market
value of $2uo,000 , the proximity, size, and place-
ment on tine lot of this proposed buildinc is of the
utmost importance. In this price ranr,e another hone
juxtapositioned on yours cannot help but prove detri-
mental.
In view of the above considerations, I feel that there is a
high probability of significant adverse effects to Your
property should ti,e proposed house be built on the ac_joining
property.
Sincerely,
A b,y A dk a
Alexandra Ferris
Sales Associate
rN
eURNET
GAGNER
REALTORS
A.:
0.
August 22, 1977
Mr. Jay Recker
3145 Nortfs!iord)rive
Orono, Minnesota
Re: 3145 NorthshoreUrive
Dear JAY:
Pursuant to your request I have inspected the above
captioned property and the surrounding neighborhood
aq to its character and continuity. Rased upon this
inspection I `save reached nv couclusior. respecting
your question as to whdt effect, if any, will be
caused by construction of a new home on the vacant
lot imnedintely to the west of your home. The extent
to which your property and the property of the neis;h-
borhool homeowners of such construction would depend
entirely upon the location of the future hone on the
lot.
If the hone is built directly a6jacent to and on line
with your home, it is my considered opinion that it
would not only restrict the size and quality of the
resale market you could expect for your home, but
would also have a deleterious effect on its value.
In addition such a situation would seriously digrupt
the existing character and continuity of the nligh-
horhood. Specifically, it has been my professional
experience that there are very few neiphborhoods
9tirrotmding Lake Minnetonka which enjoy the compati-
hility of sire, design, land utilization and value
that currently exists in vour neighborhood. Completion
of a home as above discussed would take awav the feeling
of openers and privacv and replace it with the hrnphaz-
,t,l conditions one sees so often in the surroundinc
Lake :iinnetonka areas.
August 22, 1977
Re: 3145 Worthelk,reprive
aOft%
In that vein, I would urge and surpest that the future home he
somewhere within the immediate vicinity of the structure which
now exists on the lot. I make this suggestion for the follow -
in;; i casons :
1. The value and marketability of the future home.
as well as yours, will be enhanced and preserved;
2. The continuity of the neighborhood -ill remain
unaffected;
3. The vies overlooking; Cie lal.e of the future home
will not be adversely affected;
4. Problems of noise and congestion occuring between
.our home and the future home due tc use of the
lakeshore easement which would run between the
houses would be avoided;
5. It would not cause any undue hardships upon the
owner of the neighboring lot.
If you have any further questions concerning any of the above. do
not hesitate to let me know and I will attempt to answer them for
iou. Oth,srvise. I appreciate the opportunity to have been of ser-
vice and I extend to you my very best personal regards.
Very truly yours.
Thomas S. fierce
Sales Associate
COPY op c.17•' s
Resolution No. H-)l
RESOLUTION GRANTING JACK PlInDE A CITY OF OPONO
VARIANCE TO ALLOW CONSTRUCTION ON THE
LOT KNOWN AS 1 '0 BOHN'S POINT ROAD
WHEREAS, Jack Rhode ipplied for variances to allow
for the construction of a s.i„yi.e family rosidential home on
his lot cownonly known as 1410 Bohn's Point Poad, 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
W1IF.10-'AS, 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 Bucker and his
attorney, Jerry Rice, Esq., and
WHEREAS, the city council has reviewod 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 tt.e 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 appli ants, his agents,
the neighbors adjacent thereto and their agents and city st.i.f,
the city council grants the variances as noted hereinafter for
the following reasons:
I. FINDINGS OF FACT
1. rhat Jack Rhodes's lot, comm->nly known as 1410
Bohn's Point Road, is a lot of record existing upon
January 1, 1975, under singl^ Rt-parate owncraship in an
LR-1B use district.
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-lB 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 lakoshore 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 :jingle family
dwelling meets the 35 foot front yard, 10 fort- side
yard and 30 foot rear yard requirements.
6. The existing carriage house is located 14 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.
B.
The
easement
runs over
one of the
side yards.
a.
The
easement
excludes
any driviny
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.
(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 dwell'
is set back more than 75 feet from the shoreline as require
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 mast 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 i. 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 250 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 ex.i:;fence a purported walk-
way and lake access easement that runs over the land and pur-
portedly allows the easement holders to c-onst.ruct 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 clank 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 Rhod-'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: t1w 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 tho 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 rc:;ult from the pro-
posed construction o` 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 tnan 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 •erage set back" rule, to -wit:
it will not be contrary t,e intent of the Zoning Code and
there will be no adverse _Ltects.
27. The planning commission, after h0dring 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 Douse 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 attachk.-d hereto and
that prior to any construction that a survey be conducted
to insure that the house is locaLed as noted on Fxhbit A
and that the city zoning and planning .i,lini ni strator is
informed of the conunencement of cony;t ruct icon at least 24
hours prior thereto.
13. That there be only one clock alluwc.d on the Rhode
lot which clock shall be no greater than 100 feet in length.
C. That on
the Rhode
lut either
it i ached 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 ]ti rc.hy finds as
follows:
(1) That the existing easements which purport to
grant dock rights and walkway ri-ihts to the lake are
invalid in that they were granted in 1974, and the sub-
division ordinance in effect at th.+t time .ind to this
point in t,me requires that any division of land of
that size eluding a division for (,asement purposes,
required compliance with the subdivision ordinance of
the City of Orono and these ea!;oment s did not meet
those requirements.
(2) That the action by the city council '-ipprovi ng
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 deck 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 ooats of any size or shape moored at i-.he dock, in
front of the lot, or on the property at any time.
G. A dock is an accessory ii:>e .and w-ust be attached
directly to the residential lot for which it is dosiyned
to serve.
H. The three boats allowed to this resolu-
tion may be owned only by Rhode or flit! two pro!;ont easement
holders, Gregg Hannah and Darrell 51, ...art.
I. This resolution does not ji.mt •any (.r)ntinuiny or
vested ricjht in Rhode or the pr,! sent or future oasen,•nt
holders to maintain or utilize the deck.
IT. GRANTING THE VARIANCES
Based upon the above findings of fact: .end )n1. i nycrnt upon
specifically those items as noted in p•,r.,clr.aphs A through I,
the city council of the City of Orono grants the following
variances:
1. A variance as to lot size •end width with resptic:t
to the lot commonly known as 1410 Bohn's Point Foad.
2. The variance from that part of Section 34.201 of
the Orono Zoning Code which provides t-hat no buildiny may be
located closer to the shoreline than tho average distance from
the shoreline of existing residents' buildings on adjacent and
nearby lots.
3. The above variances are continyent 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 fortn 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 can 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 itc_�ms are completed to the satisfaction of the
city prior to the granting of a building permit, and tiariances 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 aycs ayes .and 1 nays on
Alovember 14, 1977. --
1
iam �.-Van K--st, Mayor r.
ATTEST:
-
c. r R. .won
Clerk/Admir strator
I have read the terms of the above reso.lut icon and ayree to
be bound by them.
Jack Rhode_—_--
--Rhode----------
I
210
O&WOV Now
ry�wrNJ„r, 4040. 0AWrf•
�,,...n•r�I T..+�tM
STATE OF I-IINNESOTA
COUNTY OF IIENNEPIN FOURTH .JUDICIAL DISTRICT
CITY, OF, ORONO
-----------------------------------... _.-,. ----------------------------
Jason C. Recker and GX#
Carol Becker, /�
Plaintiffs, # 6 I
FILE NO. 743063
-vs-
FINDINGS OF FACT,
City of Orono, Orono City CONCLUSIONS OF LAW
Council, Miyor Brad Van Nest, AND ORUFR. FOR JUDGMENT
and Jack Rhode,
Defendants.
_JUDGE_ Nt�No� t� __ �`17 ? _ PW�ING:_c -------------------
This action was tried before the undersigned without a
jury coi„mencing on April 74, 1978.
Counsel appearances were:Jeron;e Rice, Esq. , for plain-
tiffs Jason C. Becker and Carol Becker;Rruce D. Mialkerson, Esq.
for defendants City of Orono, Orono City Council and 'Mayor Brad
Van Nest; and James Swenson, Esq. and Roger V. Stagebeig, Esq.
for defendant Jack Rhode.
E: Having heard the evidence � Aconsidered the '.>rirfs of
counsel, un all the files, records and proceedings herein, the
Court now makes the following findi.nl;s of fact, conclusions of
law and order for judoment:
Counsel appearances were:Jerome Rice, Esq., for plain-
tiffs Jason C. Becker and Carol Becker;Bruce D. Malkerson, Esq.
for defendants City of Orono, Orono City Council and Mayor Brad
Van Nest; and James Swenson, Esq. and Roger V. Stageberg, Esq.
for defendant Jack Rhode.
Having heard the evidence a►,d considered the briefs of
counsel, on all the files, records and proceedings herein, the
Court now makes the following findings of fact, conclusions of
law and order for judgment:
FINDINGS OF FACT
1. Defendant Jack Rhode, hereinafter "Rhode," is the
owner in fee of a lot in the City of Orono, hereinafter "Rhode
property." located at 1611) Bohn's Point Road. Orono, Minnesota.
2. Flaintiffs Jason and Carol Becker., hereinafter
"Backers," are the joint owners in fey of a tract of land in the
City of Orono, hereinafter "Becker property," located at 3145
North Shore Drive, Orc,lno, Minnesota.
3. The Rhode property is a lot of record existing upon
January 1, 1975, under single separate ownership in an LR-1B :se
district.
4. The Rhode property does not meet the minimum re-
quirements of the Orono Zoning Code as to area and width for a
single family dwelling in an 1.R-1B use district because it is:
(a) only 29,300 square feet in area and (b) only 107 feet wide.
5. The area and width are not within 80% of the mini-
mum requirements as set forth in Section 31.20- of the Orono
Zoning Code and, therefore, City Council approval of variances
was needed before a single family dwelling could be constructed
thereon.
6. The Rhode property is surrounded on all sides by
lakeshore or lots containing existing single family dwellings.
7. The Rhode property is unique and the general condi-
tions of the lot are peculiar to it.
8. The Rhode property is presently served by public
sanitary sewer system.
9. The Rhode property has been assessed approximately
$6.000, including interest, for a sanitary sewer.
10. The council approved proposed location of the
Rhode house meets the 35 foot front yard, 10 foot side yard and
30 foot rear yard requirements of the Orono Zotiing, Code.
11. A prior house, now renuved, was approximately
40 feet from the lakeshore on the Rhode property and was near the
8. The Rhode property is presently served by public
sanitary sewer system.
9. The Rhode property has been assessed approximately
$6,000, including interest, for a sanitary sewer.
10. The council approved proposed location of the
Rhode house meets the 35 foot front yard, 10 foot side yard and
30 foot rear yard requirements of the Orono Zoning Cote.
11. A prior house, now renuved, was approximately
40 feet from the lakeshore on the Rhode property and was near the
Rhode -Becker property line.
12. The Beckers live immediately north of the Rhode
property in a two story home which contains approyimately 2950
square feet Per floor and which is located only about ter, feet
further from the lake than Rhode is permitted to build under
the granted variance. The Beckers' house front is parallel to
the north end of the front building line approved for Rhode.
13. The Beckers' lot is deoper than Rhode's lot, but
the Beckers' lot has 23 feet less shoreline than Rhode's lot.
14. There are presently :n the chain of title two
easements which purport to provide for a walkway over the Rhode
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property to the lake and to provide for beach and dock use. The
easements are ten feet wide and run over the side yard which is
adjacent to the Becker property. The easements exclude any driv-
ing privileges. 'These easements were established over the Rhode
property at the Beckers' request by lied Rogers, Beckers' inmied-
iate predecessor in t4Lle, in order to replace the easements de-
scribed in the next paragraph 15 of these findings. They -are
useable by the easement holders only Lhrough the easements de-
scribed in paragraph 1.6 which were modified pursuant to the Beckers'
request referred to hereinabove. The side yard affected by the
easements over the Rhode pr:)Nerty will rennin covered by grass or
foliage. ifiere will be no building or other obstruction in the
side yard easements area. The o,ccesL, to the proposed dwelling on
the Rhode property in case of fire will remain thy, same as if no
easement existed. The light and air within the side yard along
the Rhode -Becker property line will remain the sagie as if no ease-
ment existed.
15. At one time there were two sixteen foot wide drive-
'. -ay easements which ran along they southern boundary of the Becker
property to Lake Minnetonka. These easements allowed joint use
of the beach and construction of docks on the Becker property.
16. There are presently walkway coscments over a portion
of the Becker property to ali.)w the two Rhode easement holders
to walk across the Necker property and thence across tt Rhode
property to Lake Minnetonka.
17. Prior to enteritif; into the `, `'ase ar,reemc:nt to
buy the property, Rhode was informed by Mr. Nui, th- Building
and Zoning Administrator for the City of Orono, th:►t t •one time
in the past the City of Orono had i;ranted variances foi lot sire
6011d lot width to Mr. Rogers. Ho wa.q alKu told that absent a
change in the lotting Cede or a change it. circumsLances, a similar
variance probably would be granted to hire.
18. Rhode first filed an application for the approval
of requested variances on November 22, 1976.
19. Rhode's neighbors to the south, the Lauers, informed
the Orono council that they preferred the approved location of the
Rhode house as being lakeward from fine A-t, hereinafter referenced.
20. The Beckers objected to the Rhode house location
which was authorized.
21. The Orono council considered the Rhode application
at council meetings on August 8, August- 22, October 11, October 24,
November 14 and November 28, 1977. Gurirg these mee,:.ngs Rhode
and the Beckers or their counsel, or both were present, testified
for and against the application, and sub -fitted legal and factual
memoranda and reply memoranda which addrL;sed all of the isboes
raised before the council.
22. After having reviewed se, :al drafts and revised
drafts of a resolution, including drafts submitted by Rhode and
the Beckers, on November 28, 1977, by a vote of 4 ayes and 1
nay, the Orono council adopted Resolution No. 851 which granted
zoning code variances subject to stated cond.tioi,s.
23. The easements over the Becker and Rhode properties
were grantp ' Wi tt►ouL Orono cuunci t approval an,' L! : e of dubious
.validity.
24. The variances as to lot size and dth granted
to Rhode were justified t-ecause of the undue hardship which
would result from Rhode- being unable to build a residence on the
property for which he paid $45,000 in cliance ott Mr. MUhich':c
above mentioned statetietit and the -variances are' in keeping with
the general spirit. and intent of the Orono zoning ordinances.
Th.:re is no undeveloped lat.d -1i ng the Rhode property which
could be acquired by him to i -L c►ie lot. si,c and width require-
ments.
25. The granted variance, if needed, as to set back was
justified by the follcwing facts and was in keeping with the spirit
and intent of the Orono zoning, ordinances -
(a) The Beckers home would impair the lake view from
the Rhode house if the latter were built back of line A -A on the map
attached to Resolution 851.
(b) Rhode could not build as large and attractive house
on his property as those of the Beckers and La.uers, nor suc' .
house as is economically warranted by his sizeable lot investment,
if required to build hack of that line A -A and this would depreciate
the values of the Becker and L;tuer houses.
(c) Building back of that: line A -A would necessitate
removal of some existing mature pine trees.
26. The c^uncil approved location of the Rhode house
will not impair the Beckers' view of the lake and will not de-
preciate the value of the Beck,srs' property so they have no legal
or equitable standing to challenge the setback variance granted.
CONCLUSIONS OF LAW
1. Plaintiffs' request for a permanent injunction enjoin-
ing defendants from building or perwitLiug. the building of any
structure on Lite Rhode property is denied.
2. Plaintiffs' request for a writ of mandamus ordering
the defendants City of Orono, Orono City Council and Mayor
Bradley Van Nest to enforrE ►.he Orono Building Code and/or Zon-
ing Code in such a manner as to deny the variances which are pro-
posed and which have been granted :n the form of ResoluLinn No.
851 is denied.
3. Plaintiffs' request for an injunction specifically
enjoininb defendants City of Orono, Orono Cit.y Council and
ilayor Bradley Van NCsL from grantinf; any building perr;its for
t.he construction of a buiLuling on the Rhoda property is denied.
-5-
4. Plaintiffs' request for attorneys' fees is denied.
5. Defendants City of. Orono, 'Mayor Bradley Can Nest and
the City Council and defendant ,lack Rhode shall recover from the
plaintiffs their costs and disbursements to be taxed and allowed
herein.
hereof.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Entry of judgment is stayed for 30 clays from the date
The attached memorandum is incorporated Herein and made
a part hereof.
Dated this?- day of July, 1978.
Dana Nicholson
Judge of District Court
U
-6-
101O RAN D'JM
The adoption of Resolution 851 was a quasi -judicial.
action by the Orono council. The resolution should be upheld
by this Court under established principles if it does not violate
established principles of law. It is apparent that the council
members studied the problems carefully and devoted much time and
attPnti-- ►-n hearing Pvidence ;1+ 4-t—trinnt's before adopting; the
resulutiotn. W1he stauuaru iur rev.L!w ul ({Ud51-JU1,1lLld1
of a municipal council in granting_a variance are reiterated in
Merriam Park Community Council v__Mcl)onough (1973) 297 Minn. 285,
210 H.W. (2) 416, where the Court said:
"Willi respect to decisions of municipal and other
governmental bodies having; the duty of making; de-
cisions involving judgment and discretion, this
court has repeatedly said that it is not the pro-
vince of the trial court,to substitute its judgment
for that of the body making; the deg=isi.on, but mere-
ly to determine whether that booty was within its
jurisdiction, was not mistaken as to the applicable
law, and did not act arbitrarily, oppressively, or
unreasonably, =qnd to determine whether t e evide»co
could reasonably support or justify the. determination.
Villa of. Edina v. Joseph, 264 Hinn. 84, 119 N.W.2d 809
(1962�."
Unquestionably the Orono council was acting within its
jurisdiction and did not act arbitrarily, oppressively, or un-
reasonably, but instead made a and just disposition of the
controversy presented by the opposing, positions of the Beckers
and Rhode. Therefore, the only clucstioll presented is whether the
council was mistaken as to the applicable law. The Beckers claim
that there were several mistakes: of law which will next be dis-
cussed.
The Beckers claim the size and width variances should
not have been granted because Mr. Fred Rogers, the imttrdi.Ate
predecessor in interest of both the Beckers and Rhode, had ron-
trolling interest in bath the Becke,- an,1 Rhode propet ties C nd
could have combined them to comply with thr size and width re-
quirements. Clearly Rogers did not have such controlling interests
-7-
in both properties when the 1975 zoning; ordinance became effective
on January 1, 1975. Rogers had no interest- in the Rhode property
until he contracted for its purchase on September 9th or during the
early part of Aug;usL, 1974, and by either of those dates Rogers had
lost control of the Becker properL, by contracting; on August- 1,
1974 to sell it to the Beckers. Therefore, Rogers never cou'1 have
legally joined the Lwo properties in sole ownership.
In asserting; this contention the Beckers rely on
llederim,_v. Johnson, (1976) 307 Vinn. 315, 2.39 N.W. (2) 913.
Uedering is disLinguishable because there two adjoining undeveloped
lots were owned in fee by the same party when the zoning ordinance
was adopted, because the court there relied on pollution avoidance
as an important factor warranting; denial of a variance -nd because
the governing body had denied, rathei than approved, tale variance.
Conmion fee ownership of the two lots was ruled to be
not
a sound basis for denying ( the variance but was/stated to pro-
hibit the granting of a valiance. The court there said at page
322:
"In denying; a conditional -use permit. and variance
to appellant, who acquired it substandard lot with full
knowledge of ita deficient size, the Isanti County
Board of Commissioners was furthering, the purpose
of Lite shorelands provisions of that county*s zoning;
ordinance and the shorelands policy of the state of
Minnesota. A county hoard cannot arui.trarily deny an
applicant a variance from local coning restrictions.
See, Zylka v. City of Crystal, 283 Minn. 192, 1.67 N.W.
2d 45 (1969) . Nourever, where, is here, t he act inns
of the county hoard are based on substantial evidence
which it considered in analyzing; the Proper future
coure in this important .and sensitive land-ttse
field, a court must uphuld Lhe board's decision.
See, Arcadia Development Corp. v. City of Bloomington,
267 Minn. 221, 125 N.W. 2d 346 (1964).
In Curry v. Young, (1969) 285 Minn. 387, 113 N.N. (2)
410, the court mandated Lhe allowance of a variance to a zoning
setback requirement after the council had denied the variance.
Thera two lots had been owned by one party for it period after the
zoning; setback c-rditiance was adopted at 1 t.hat owner conveyed Lhe
two lots to the plaintiff And another owner. The court pointed
out that the variance ordinance permitted a variance for hardship
only if the hardship "has not been created by any persons presently
having an interest in the parcel of land." The court approved the
variance because "to take away from this lot the right to a vari-
ance by the adoption of this ordinance would be, as the trial court
found, a violation of due process in that it would deprive the
property of any vnlue."
By this last expression the coin:t seems to have been
considering the lot alone as being a unit which could not be taken
from the owner without rendering; it valueless. This is an attribute
of a lot enjoyed by its owner which should not be affected by the
prior statez of ownership of an adInining; parcel, except whe-:e
health policy considerations permit the result as in Dedering.
The Orono zoning ordinance provision relating; tee variances
(Section 32.340) seems to recognize the right of a present owner
to have his property right protected regardless of the chain of
title of his and adjoining laddswhen it provides in subparagraph
(c) as follows:
" (e) thc. granting of the application is necessary
for the preservation and enjoyment of a substantial
property right of the applicant."
to have his property right protected regardless of the chain of
title of his and adjoining larids when it provides in subparagraph
(c) as follows:
"(c) the granting of the.. application is necessary
for the preservation and enjo;rn►ent of a substantial
property right of the applicant."
The applicant Rhode had a substantial property right
which should be protected even though his immediate predecessor
in title may not have had a property right entitling him. to
protection because he might conceivably have combined the Rhode
lot and the Becker lot to meet the size and width requirements
of the zoning ordinance.
The statute authorizing variances, M.S. f462.57 (6)
does not limit the granting of variances because an applicant's
predecessor in title could have avoLlide.d the hardship.
The Deckers second objection to the granting of the area
and width variances is the existence of the Lwo beach easements
Over the Rhode property. 11�iving caused these easements to be
created and having easements oii thE.ir own property necessary to
enable the enjoymei,, ui. these beach easements, the Keckers are
-9-
estop) -d vcictl tably from asserting that these two easements bar
the use of the Rhode property l'or a residence.
Either these easements are invalid as not permitted by
the zoning code which was what the council concluded, or their
existence plus the addition of the Rhode house does riot violate
the code. If either proposition is sound, then the Beckers'
contention is not sustainable. In any event, the council•could
have granted a zoning variance to permit Lite co -existence of
th^ easements and the Rhode residence since otherwise the Rhode
property would be without value and the Becker -created easements
would establish an undue hardship justifying* the variance.
There being no sound legal objection to the granting of
the size and width variance, those variances were properly
granted because otherwise Rhode would be deprived of any use
of his property as was ruled in Curry v. Young, (1969) 285 Minn.
387, 173 H.W.(2) 410.
The Beckers object to the granting of the se.4ack variance
claiming that there 13 tlo undue hardship which justifies this
variance. They seers to insist that a setback var•lance may be
justified only when necessary to make property buildable as
urged at page 11 of Plair►tii'fs' lost -trial br•iel'.
Merriam Park Community Council v. HcUonoulh, (1973) 297
Minn. 210 W.W. (2) 416, clearly establishers that there ir• no
reed to prove that land will be: valueless un,-,ss variances
nr•- ri-anted as to zoning setback and other requirements. The
court there sa► ld :
0
"PI altitll'1':: .,nil thattit(• wurii: (if' Minn. St,.
462. 3'.)7, suhd. (,, t— qu.1 re that t ho mi,ho, h;ivd-
shil) must 1'1'um unl'1,1.• t„
the 11C0 tho• (1wni'1•, tiU►'t `Und-
tni� n(.•irlib-Hi-1`•1, ••c—nciml fe nathi I lty, or Ilk -
elements ... ! t' e.hta line c)1' reasunliw, i:. followed,
the granting of: any variance, no nar.tvr how mini-
mal, would be practically impossible except where
the topographic conditionr, of a specific parcel of
land wotild render the tri,et of land in question
otherwise valueless.....i.t does nog. prohi-bit prant-
irtp, non-u .e variances such as thor,e of area, height,
setback, density, and parking requirements, if the
granting thereof is in keeping With Ole spirit and
intent: of the ordinance and the refusal to grant
them would cause undue hardshi.p."
In Merriam Park the St. Paul. City Council had granted
variances to the front and side setbacks, buffer area, density,
and building coverage requirements of it.s zoning code. :he
setback requirement was an average setback limitation. The
trial court found the following undue hardships or other justi-
ficationsfor the variances:
(1) "that the required 35-foot seLhack, under they
conditions presented, was an undue hardship
to the development of tElm tract for multiple -
residence purposes; that the tract could not
he reasonably and economically developed wi;:h-
out the reduction of the setback requirement
to 16 feet."
(2) "that the delay in processing lefendant's re-
quests for variances constituted a hardship
peculiar to the tract Ale to the fact the ord-
inance r.equirin; they additional offstreet park-
ing space was passed during that: delay."
(3) 'that the anticipated demand for offstreet park-
ing was not greater than that provided after
granting the variance regtiested."
(4) "that the variances for density, f-round coverage,
and side -yard clearances were minimal in nature
and would have little, if any, effect upon the
valuation of adjacent properties;."
(5) 'that the construction of a in) -or 11-unit apart-
ment on the tract would be economically unfeas-
ible and totally impractical because of the high
land cost involved."
(6) "LLat the grantin-,, of the parking variance requested
was ccti.Asient with the public health and general
welfare."
(7) that a redaction in tl-e number of units in the
proposed aparLmenL building from 1? to 10 would
vot rt.iterially chango the de•s:i'vtl and function (if
the• bi i i d i ng anel wool d only cau :c e C011omi c hard-
ship to the appl.icattt without :any benefit Lo the
connnun i t 7. "
-11-
in ruIitir, that these harclrli ip fin i i m-, s were adequate to
justify the variance the court said:
"There was substantial evidence in this case that
sufficient. practical difficulties existed to
justify varying the provisions or the cede as ordered
by the city council. Likewise, there yr,,s a sufficient
showing to Justify the conclusion by the city council
and the court below that the varl ance:: granted were
in harmony with the general purpose and intent of
the zoning code and that the public health, safety,
and eener•al wee fare were :;ecured and substant: al
justice was done. Thus, we need only consider
whether 5462.357, subd. 6, prohibits granting the
subject varlaner-s. The trial court round that defen-
dant: would suffer undue hardship if' the literal pro-
visions of the zoning or•linance were strictly enforcer'.
The ^tatuto provides that, property ownrr !,. may re!picat
variances where strict enf'oreemerrt of the provisions
would cause undue hardship 'because or circumstances
unique to the Individual property under cerisideration.'
The trial court held that the evidence Justif'ed a
determination that if the variances were not granted
defendant would suffer undue hardship because of uni-
que circum^tatices not reflective of conditions gen-
eral to the neighborhood."
The hardships in Merriam Park were based on economics, rea-
sonableness and practicality. Similar hardships exist to justify
the Rhode variance as to setback.
The Beckers object to the council.'s interpretation of the
setback ordinance as not forbiddirig the approved house locat,ior,
wt,,t?n the beckers, and not the Lauers object. to that location.
That ordinance (Section 34.201)E;rovides:
The Beckers object to the courrcil's interpretation of the
setback ordinance as not forbidding the approved house location
when the Beckers, and riot the Lauers object: to that locatlon.
That ordinance (Section 34.201)provides:
"The setback frorn the shoveline fnr lrrkeshore lots
shall be at; least seventy-flve feet and no building
may be locat-,d closer to the s hor-ol.inc t.li rn tIW
average distance from the shoreline ref' rxisting resi-
dence builuings on adjacet►t and nearby lots."
Since this setback limitation applies only to "lakeshore
lots", the council could propet•ly construe it as being intend-
ed to protect the sight line of existing residences to the lake.
The council's interpretation of it; own ot'dinance should
be given great weight under well-recugnized principles of admini-
strative law.
So interpreted the ordinance can be def,med not to pro-
hibit the approved Rhode house location inasmuch as the Lauers
ai,e the only Ilearby nf-1E-1rbors adver•scly :.ffect► u by the location
and they want the! house to be �rtjead of Line A -A . The Beckers'
ht link, is not advcrs-ly aff'ecte-I by the location.
- 1;) -
The Rhode sight line would be adversely affected if tie were
required to bulld behind line A -A and this ordinance should be
applied so as to b. ('air to new as well as old vesiden(,es if' that
is reasonable as it Is here.
The wise enforcement of an ordinance should Five effect to
its purpose. }laving in mind the purpose of this ordinance t.o
protect neighbors' sight lines, the council could properly con-
clude that the ordinance should L. 'nterpreted and applied here
to protect the Beckers' sight line and require that the Rhode
house be set back as far as needed for that purpose but no further.
The ordinance is clearly ambiguous in that it does not
limit the number, of residences to be considered in determining
the "average dist.unce" other than to mention "adjacent and iiearh
logs." Presumably adjacent lots were Included because their,
sight lines would be most apt to be adversely affected. Nearby
lots logic;lly could have been included to protect them in the
event an adjoining neighbor whose sight line was adversely affected
had no objectl(,n. To Illustrate, let us assume_• this situation.
The Beckers' house is 115 feet and the• Lauer hoilso is 160 feet 1'rom
the shoreline. IL' a Jones' house was next north e!f' the Becker house
arid was 12U feet from the shoreline, Jones could obviously not
object to a Rhode setback parallelAng the Becker house because
h- would not. be adversely affected. 11liwever, If a Smith house
was next south of the Lauer•s and was 11jO t'vet from the shoreline,
he coul,i object ever► though the L.rruers dill riot object to the Rhode
P,cation becauc:e his sli lit line• would be adver•::ely aff'ected. The
inclusion of "nearby" lots show:; that preservitit; Fight lines was
the purpov..e of the or•d:nance. standard ot1wr than sit -lit, lime
(',)uld be u:,t•d t.rr tl(�tr•ritOne which lot.r. art- "near•t y" within the m—ining
of this or(11 n;il,t t :1.111oe• no othe•1• 1jr,c,t,011 t :1ntf,il 1 an lit• "(110e1ve d.
If' no st;11Nl1artl 1 "i for the Ili 11't)y 1(0t 1 o bt' UIISicit'rt d Lheree is
tin spec i f't c neth:ic k ri-qu t red .
The Beckers in championing*, line A -A as the required setback
line are basins.; this on the line of sight from the Lauer house
ana thus are impliedly approving, the sight line interpretation.
An arithmatical average setback based on the Decker -Lauer set-
backswould be half the total of the Becker setback of 115 feet
and the Lauer setback of 160 feet, or 137.5 feet. Using this 137.5
feet figure would place the setback on a line which is about 20
f-0. inshore from line A -A on Hhode's north house setback line
and 8 feet lakeward from line A -A on Rhode's south house setback
line.
In Cuvr•y v. Young, (1969) 285 Minn. 387, 173 N.W.(2) 410, our
Supreme Court said that a "definite setback" (-,F.n be required "so that
the appearance will be uniform." If that fs the purpose of this
ordinance, then reasonable uniformity, not an exact mathematical
uniformity, seems logically to be all that can be required. Rea-
sonable uniformity is achieved by the setback ordered by the council
since it achieves some tapering; of the southerly side of the Rhode ✓
house between a line drawn froti, the southerly 1'ront of the Becker's
house to the southerly front of the Lauer's house. The initial
departure from uniformity was achieved by the Beckers locating
their house so much closer to the lake than the Lauers, so the
Beckers are not in a sound -al position when they object to
.another house being about se to the lake as theirs.
If the Lauer house we; ) 115 feet from the shoreline,
obviously the Beckers could ha no pos.lble objection to the
approved Rhode setback. It 's only the. Becker induced fortuity
of the long and shorter setback:: of the Lauer and Becker houses
which gives the beckevs any basis .'or an art umettt that the approved
setback is improper. Under established princIples the berckers
have no leg•;al :standing; to chaI1n1'(. i1q)..:v(.d house
location beca+r;;e• of, the farther setback )f th- hou:;e.
Thus, in "c}iuW.: V. Kl .,-Al, (11.139), �'u�� �;.ir►n. `.:��� �b4 N.W. 7h'�
the court said ;it '06:
"It is elementary that a party inay riot, deaf(-nd an
action by asserting facts or rights which uo not
concern film and in which he has no lawful interest,
* * * just as he cannot predicate a cause of acti,
upon such face-.s or rights. * * * This is true for,
the very simple reason that a party may assert and
champion only his own rights, not those of others.
* * *" (asterisks show omitted citations.)
The Beckers claim that they were denied due process for
several reasons. In view of the many planning commission and
council meetings held where the Beckers were present and represented
and the opportunity given to them to submit briefs and a proposed
resolution to the council, as well as the extended time devoted
by the council to hearings, there is simply no basis on which the
Beckers can reasonably assert that they were denied due process.
The Minnesota Supreme Court has recognized that. only limited due
process rights are granted in quasi-judicial hearings before a
1; )verning body. In Bartun Contractirrt; c:o,L 11,t:, v. Clty of Afton,
(decided April 111, 1978) the court said:
"When the governing; bo•'y considers an application
for a special -use permit pursuant to such ortinance,
Its action no longer bears on an open cla; s -,f per -
soils but directly on the particular Inters :t of the
applicant, in which cu3e it actr, in what is usu,illy
called a qua-;i-Judicial c•apacit.y. .,un 01 i Co. v.
Vil l,W► - of New (lope, supra. The tea:sic rights of
prose, .ra l clue peoeess required in that. c,-►s o are
reasonable notice of hearing an.) a ►-eanonable oppor-
tunity t o hr heard. The so quasi_Ju,licLl l,roceedtngs
do not Invoke the full patioply of procec!ure + required
In regular ,judIc cal procecltnt,3, civil or criminal.
rnarfy of wtilc•h would be plainly Inappropriate in these
quasi-judicial settings."
A i asonab,,t opportunity to be heavd and 1'rvsent evidence
and arguments I., a I I that due process r•equi reps and the Becker's
were given that upportunity.
Dated: July ?4, 1�)/lt. * •-t
Dana
Judi- c,C' DISt,r•lct Court
May 250 1979
'ir. i.1.
t ity
(1ronc ''i!) ii
Cryst -1 ,i532?
tie?! O,v,' t=.hoie
ilear '+2-. ois,:i-v
' .1 1ncii neatin7 on Tuosda, , question
eAros, Ar. Rhc ?e v:oul:1 II.ive to .(:at ion
f.)n C:ne ycar variance o+rvcn 33nss
annot be the ca:.� 1:1,1 t. t ,r±. - nariol
ghoul ���,� ,:� r +.n until }�. �,jucnt try �f=:-, Lien if
+_ire 1 i :� r i : _y `r �.' ;arla;lk-k. c),>>1.wnej,.I ,rnur ,noon
Lo Belt �r v. l li:i c.om►•lissio ,?r of 13ostc-r, 104 ;.;..2:1 257 (,973)
lJhBrE l.:t P ..: ( T - ,=$ to an .1: ?ea o a va riancc tolls the running
of tt.-: which the variance hx,%to he exercized.
I'-_ Lhcr.3fr re stanc-1 on the i) opoiition t%a L the varianm
grbnu, i i`; T' �sol��tf _.i ;'^ 951 is .atill effective and wo nre vicekinq
!:o ar.:_ wl Out ►3i. ariance.. Alternatively we formally request
a Cult ':-i•, , r, , year, With the 3-7a•`sted charn;;..z.
very my yours,
MACYAM . CROI .,Sr & 400F.7
fly
I. ies T. Swenson
ITS:v.
r" ! L'r uce Aal?-r - -t, esq.
,rono City V tail M. *.,era
Robert r'.. mit-aell, % ,c-
May-.. WltliM,' Van Nc *t
M,L. alld "F . 1111LON J. Lauer
J,
Lo,I
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lal11 AO
MACKALL, CROUNSE &
MOORE
LAW OFFICES
SUILDINT
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ELOYO E. NELSUN
0ONALD A. P40 it KEN
1000 FIRST NATIONAL ■ANK
�� HENRY C. MACKALL
FIR COERICK L. THOPSON
MINNEAFOL?S MINNESOTA SS402
TI/DM AS P. HELMEY
.;`ME9 O. NA N NAM
WI N.TON E. MUNSON
IL fPMUNE 16121 137-13<
CLAY R.MDORE
C CINNOR F.SCMM.IO
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YREOERICK M-•-TINCMFICL01199,19SO1
VAL M. MIa01N9
PERRY A, MOORE IIC94-1999'
LOR/NS Q. ORY NESTAD
DON ALO A. MULMES 1904-19711
WOODOURY MANOR E*S
a EORar. R-A, J0MN SON
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March l�, 19$0
R OECRT M,['�1 ROUNSE IIR' 19741
ROa,R V. STAGCOERG
AN ORE* R. CLARK
/RANK A, DVORAK
RDOERT O, aI SVOLD
MARTIN C. rV OCR
IRAN 1' P, J'N 1(1
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MARTIN V AYOEL OTT
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JOMN O. LUNJQUIST
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JAMES Y, SW(NSON
ER IC O. MADILN
MICMAEL 9. FR((iT
DONNA L. RDOA(
Mr. A_ Ol!-con
City Planner
.or- City Counci'
P . C 3ox 66
Crystal Bay,
Min. 55323
Re: Jack Rhode
141 ns Point Road
Dear Mr. Olson:
Enclosed is a copy of ; letter that 4. are sending
to all those concerned with the abo% -�pe!rty. Ple,.�-e place the
matter on the calendar for the Marcy. 1980 r)rono Cc..nc-'l meeting.
It - our opinion, that the origiri1. v1 inces are still :ifertive.
Tn i of the main letter contains a a u_,sion of thij issui.:.
I u AC-.cstand that you are contending *t Mr. Rhode must file a new
application. I will attempt to have completed and ( _vercd o
you prior to the March 24 meeting, nowever, I feel that unnece, :ary
and we will rely on origi:Ial hesDlution No. 851.
Very truly yours,
MACKALL, CROUNS7 k "007F.
By
JTS:dr
.nclosurP
cc: Mr. Bruce Mallet son
J am es T. Swenson
MACKALL, CROUN5E & MOORE
LAW OFFICES
►LOTD [.NELSON 1000 rIRST NATIONAL SANK SUI:
DONALD A. MOa0EN
rIr10. , TNowSON
AM[S. MINNEAPOLIS, MINNESOTA SS402
JNANNAN
wINa T ON L. MUMSON
CLAY w. M0009 TCLC ANON 71)])-I)II
CONNOw r.fCNMID ��pfrTQ[ - 70A
In M. NIA.'AN V� U 1L47G� Lj
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NODcw V, fT AOLa[RO
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ROSLRT O, DIf VOLO
MARVIN C. LIIoa to 1I��
♦RANI C.
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0R[OOnT J. /ULL[S �A(\fli)
MAwtIN V, ATO[LOTT (VT��_J���
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JONN ■. LUN OQUIiT ILL
JAMLs T, fw[NSON
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ODNALO • Nr, MLS 11904 19721
RoaERT Y. CRoUNs( Ills) I111741
March 10, 1980
# t1,5 (;
Orono City Council
P.O. Box 66
Crystal Bay, Minnesota 55323
Re: Jack Rhode
Gentlemen:
It has peen over 27 months since the Orono
City Council passed Resolution No. 851 granting Jack Rhode
the variance-: necessary to build a home on the lot commonly
known as 141.0 Bohn's Point Road and over three years since
the matter was fir ` heard by the council. For '3 months of
that period, both .,no and Mr. Phode were embroiled in the
Becker lawsuit reuy._ding t .e validity of the variAnces.
After that hurdle w.�s crossed, r'r. Rhod, st: l l f: , . the
prerequisite impusec by Orono of dea with the ..anndh-
Stewart easements which purportedl,, over his property
and which the council found invalid in Resolution 051.
Negotiation proved fruitless -ind on March 2, 1979, Mr. Rhode
commenced a lawsuit seeking removal of tale easements. r
calendar motion was brought resulting in an L-ar:y trial
data. Extensive briefs were filed by both sides a•i,' .Judge-.
hevy did riot reach her decision until October 17, 1979. She
ruled c.c ritrary to Resolution 851 and held 0rtL easements to
be valid. A motion for an amended deci.: ilnmediately
made by Mr. Rhode, was denied but not unto, ja.nuary 25,
1980. Mr. Rhode then appe l-iled to thc 11inr,esota Supreme
Court.
MACKALL. CROUNSE 6 MOORE
Orono City Council
Page 2
March 10, 1980
Mr. Rhode has done all he can at this juncture
to demonstrate that the easements are invalid. The current
Supreme Court calendar is such that a final decision cannot
be expected for at least another year. Mr. Rhode has already
experienced three years of double digit inflation in building
costs and is asking you not to make him wait any longer.
Mr. Rhode wishes to begin construction while the easement
appeal is pending and his ability to do so is not contingent
on the Supreme Court decision. Furthermore, he has an
even greater interest in seeking removal of the easements
than Orono has in controlling them and will continue to
fight vigorously in pursuit of that goal.
In addition to removing the Resolution 851
caveat regarding the easements, Mr. Rhode has one further
request. In passing Resolution 851, the council fashioned a
building envelope which had as a lake shore set back, a line
de:•.)tsinated as D to D to C on the exhibit to the resolution,
and on the diagram below as well. Mr. Rhode originally
wanted to build considerably closer to the lake, as is
indicated by the black dotted line below. Mr. Rhode is now
willing to compromise his goals and seeks nothing further
than that currently enjoyed by his neighbor to the north
(formerly Jason Becker). He would agree to a set back line
controlled by D to D, extended across the lot, subject to
small forward juts similar to those of the Becker house
1The council may allow Mr. Rhode Lo build at
this juncture. Judge Nic7oisen stated in his memorandum that
the addition of. the Rhide house to a lot already containing
easements (if they are valid), would not violate the Jror,o
zoning code. His exact words were:
"Either these easements are in.•alid or not permitted
by the zoning code which was what the council concluded
or their existence plus the addition of the Rhode house
does violate the code. If either proposition is
soury cn the Beckers' contention is not sustainable.
In a►, vent, the council could have ranted a_zoning
variancf� to permit the co -existence of the easements
and the Rhode residenc- since otherwise the Rhode pra-
ee rty would be without value and the Recker -created
easements would establish an undue hardship justifying
the variance. (emphasis added)" Page 10.
M A C KA L L, I-R❑ U N S E
Orono City Council
Page 3
ZI
& ❑RE .. Nt
March 10, 1980
colored in re3 below. Therefore, Mr. Rhodes's request is
conceptually shown by the red dotted line, subject to his
ability to move the small forward juts to the north or south
to accommodate his plans.
�1.
CITY OF ORONO
oriY'n.21
resotzt
for
`"er 6
QCkcr D
c
06(if P(Dpef ty
Lzk(
1(Yi,nnetonkz
19�
Resolution No
C ts1. tine
MACKALL, CROUNSE
Orono City Council
Page 4
A
"'1
d� M❑❑RE
March 10, 1980
In resolving this latter issue, Mr. Rhode
would like to remind the council that Judge Nicholson did
not even feel that a lake shore set back variance was needed,
as long as the lake facade of Mr. Rhode's house was not
situated in front of the lake facade of the home owned ')v
the lone objecting neighbor (Finding No. 25). Mc-. R1.
rew request, as indicated by the red dotted line, com,
with the set back line of the former Becker house.
One other point must be made at this juncture.
Mr. Rhode is not seeking a new resolution or new variances,
but is seeking an amendment to Resolution 8 t-ad
in the May 25, 1979 letter to the council copy attached),
the variance remains open for one year af.te n ATTACWD
affecting the same is brought to a conclusion. This request
for an amendment is still within that time period.
Yours very truly,
MACKALL, CROUNSE & MOORE
BY
.lames T. Swenson
JTS:y_
EnclosuA:e
cc: Al Olson
Bruce Malkerson, F.sq.
Jason Becker
William j. Lauer
Robert G. Mitchel:, Esq.
�f.
'relephone 473-7357
CITY of ORONO
Post Office Box 66 • Crystal Bay, Minnesota 55323 • Municipal Offices
On the ;Vorth Shore of Lake Minnetonka
March 10, 1980
Mr. James T. Swenson
Mackall, Crounse & Moore
1000 First National Bank Buildif 7
Minneapolis,
Minnesota 5�402
Re: �410 B�;hr�s oink oR a3'�
Dear Mr. Sw,
As per our teit�,phone conversation today, I am enclosing a new
variance application form. Bruce Malkerson, City Attorney, advises
that since Resolute: No. 851 was adopted on November 14, 1977, the
variance has now expired and a new application and review is required.
If you return the completed application to me before March 19, 1980,
I will have it placed on the Council agenda of March 2z, 1980 as you
requested. I cannot, however, guarantee any act -Ti at ,t meeting
as the normal variance review or variance renew. jr.ocedure will also
require Planning Commission review and full notification of nearby
property owners.
Sincerely,
�AeianP. Olson
Planner
APO:kh
Enc.
cc: Mr. Walter Benson
Mr. Bruce Malkerson
Ms. Jeanne Mabusth
FLOYD E. NELSON
DONALD A. MpRKEN
f R[OERICK L.THpR5p11
JAMlS B. HANNAH
WI. TON E. MUNSLN
CLAY R. MOORE
C ONNOR F. SCHMID
VAS M. HIG GINS
LORENS O.BRYNESTAO
WOOUEURY H. AND R EWS
GEORGE R. A. JOHNSON
ROG[R ,. STAGED E RG
ANOPEW R. ( LARK
FRANK A. DVORAK
RDBCP, D. 515VOL0
M ARVIN C. IN GBER
IRA NI P. JEVNE OI
GREGORY J.PULLE5
MARTIN V. AY OELOT-
ROBERT 5. LEE
JOHN B. LUNOOUIST
JAM ES T.SWENSON
C AIC O. MADSON
MICHAEL 5. FROST
DONNA L RORACF
MACKALL, CROUNSE & MOORE
LAW OFFICES
IOOO (FIRST NATIONAL BANK BUILOINU
MINNEAPOLIS, MINNESOTA SS402
TELEPHONE (b12) 333-134i
TELEX 29-0904
March 11, 1980
Mr. Al Olson
City Planner
Grono City Council
P.O. Box 66
Crystal Day, Minnesota 5532'
Mr. Bruce D. Malkerson
Attorney at Law
4344 IDS Center
Minneapolis, Minnesota 55402
Gentlemen:
Df COUNSL'L
HENRY C. MACKAt..
T HOMAS P.
HE, 4E,
FNEDERICK H.STINCHr IELD119BI '%SO$
PERRY R. MOGI: i 11894.1961�
�ONALO A. 'E5 41904-19131
i—SE 1993' IY741
CITY. OF, ORONO
# t4WIF " I
Re: Jack Rhode
1410 Bohns Point Road
D
My May 25, 1979 letter to Al Olson reflected my
opinion that the "statute of limitations" or period in which a
variance is effective is tolled while litigation involving the
same i.; in progress. In addition to the Massachusetts case
standing for that proposit-ion, Belfer v. Building Com'r of Boston,
294 N.E.2d 857 (1973), courts in Rhode Island, Vermont, Delaware
and Missouri support the same general tolling principle. See
Tantimonaco v_. Zoniaa_Bd _ of Review of _Johnston, 102 R.I. 594,
232 A.2d 385 (1967); Preseault v. Wheel, Vt., 315 A.2d 247 (1974);
Shollburne, Inc. v. Roberts, Del., 238 A.2d 331 (1968) ; and
Krekeler v. St. Louis County Board of Zoning Adjust, Mo., 422
S.W.2d 265 (1968).
It is our opinion that the Jason Decker lawsuit
and the suasequent Rhode lawsuit against the Hannahs and Mr. Stewart
(still in progress) have tolled the year's duration of Resolution
No. 851. Obviously, the year's period was meant to apply to
one who could take "dvantage of the variance, i.e. build. If he
or E' a did not act in a year, it would be reasonable to assume
waiver of any rights. However, in Mr. Rhode's case everything
he has done has been geared toward carrying out Resolution No. 851.
As of yet he has been unable to build and has not been in a position
to waive the benefit of Resolution No. 851 by lettinq it run its course.
MACKALL, CROUNSE d r
Mr. Al Olson
Mr. Bruce Malkerson
March 11, 1980
Page Two
On the basis c.,f the above, we feel that Resolution
No. 851 is still effective and we are merely seeking to amend the
same. The application attached hereto is submitted in response
to your request, but without admitting the necessity thereof.
Very truly yours,
MACKALL, CROUNSE & MOORE
By
James T. Swenson
JTS:dr
Enclosure
CC: Jack F. Rhode
LEONARD E. LINDQUIST
NORMAN L. NEWHALL
LAURESS V. ACKMAN
GERALD E•MAGNUSON
EDW ARE) M. GLENNON
MELVIN I. ORENSTLIN
ISRAEL E.KRAWETZ
EUGENE H. KEATING
JAMES P. MARTINEAU
RICHARD J. FITZGCPALD
PHILIP J.ORTHUN
COWARD J. PARKER
JOHN A. FORREST
VIILLIAM E. FOX
JERROLD F. SEPGFAL.K
WILLIAM T. DOLAN
JOHN H. STROTHMAN
DAVID G. NEWHALL
KURTIS A.GRCENLEY
ROSERT V. ATMORE
HOWARD J. KAUFFMAN
JOHN ■. WINSTGN
LAURA NCC R. WALDOCH
March 13, 1980
LINDQUIST & VENNUM
4:200 IDS CENTER BO SOUTH BI- STREET
Mr. Alan P. nlson
City of Orono
P. 0. Box 66
Crystal Bay, MN 55323
Re: Jack F. Rhode
Dear Al:
MINNEAPOLIS, MINNESOTA 5540P
TELEPHONE (612) 371-3k:11
CABLE ADDRE55: LINLAW
WAYZATA OFFICE
740 EAST LAKE STREET
WAYZATA. MINNESOTA 55391
C LE ���'I
D
CITY. OF ORONO
THOMAS H. GAPRETf Tnj
OAPYLE L. UPHOFF
DAVID J. DAVENPORT
MARK R. IOHNSON
RICHARD A. PRIMUTH
JEFFREY R SCHMIDT
KRISTINE STROM CRICKSON
TIMOTHY H. SUTLER
ROSERT O. MITCHELL. JR.
.., MICHAEL OADY
J. KEVIN COST, -Cy
ROSZPT J. HARTMAN
/OSE PH G. KOHLER
JACI 'TNOLD
RICH ♦ .J. M.;N C.L
ALAN at
JAMr.i P.M<CARTHY
STEVEI% J.JOHNSON
OF COUNSEL
THOMAS VENNOW
DC NN IS M. MAT—SCH
#546
I received Jim Swenson's letter of March 10, 1980. Unfortunately,
I will be out of town from March 13 through March 20, 1980. As a
result, I have no time to prepare for the Orono Council meeting
on March 24, .980. Further, it would be difficult to adequately
prepare for the meeting as I have not yet received any proposed
amerl'.�ents to Resolution 851 that Jim Swenson refers to in the
last L-tragraph of his letter. I do not know what my clients
might wish to do about Mr. Rhode's request, if anything, but we
would like a chance to better prepare for the meeting. As a
resu'' respectfully request that the matter be continued until
the meeting of the Council so that we may api,-o-
primtel.y Dnsider the matter.
Finally, I should like to reiterate the fact that the :Matter is
clearly still in litigation. That is, Mr. Rhode i)as appealed the
trial covr" s decision to the Minnesota Supreme Coirt and that
appeal i. pending.
Thank you.
Very truly yours,
LINDQUIST & VENNUM
•rt G. tchell, 1j).
ROM c cap
: Jar s T . Swenson
'.rues Malkerson
Jason Becker
William J. Lauer
r.rsy. , S . Hannah
Darrell K. StEoart
MACKALL, CROUNSE & MOORE
LAW OFFICES
rLDID C. NCLSO"
1000 FIRST NATIONAL BANK BUILDING
DONAL0 A. M0..f 11
r w[OE* C11 L. T,10.SON MINNEAPOLIS, MINNESOTA $5402
JAMES 1. NANNAN
*INS?UN E MUNSON TELEPHONE 161 TI 333-1341
C LAT P. MOoft
r
C 0NNOP I SCHMID I1. LEY 79.0904
VAI M. ,/iG DIN9
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JOHN B.LUN000.57
.IAML9 T_ SNENSON
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..ENO' C. MACKALL
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OONALO A. NOLM[S 11904•19721
wantnV M.CwOUNS[ 11063-19741
March 10, 1980
RED CVd[FLOn,
Orono City Council 00
P.O. Box 66
Crystal Bay, Minnesota 55323 CITY OF, ORONO
Re: Jack Rhode
Gentlemen:
It has been over 27 months since the Orono
City Council passed Resolution No. 851 granting Jack Rhode
the variances necessary to build a home on the lot commonly
known as 1410 Bohn's Point Road and aver three years since
the matter was first heard by the council. For 13 months of
that period, both Orono and Mr. Rhode were embroiled in the
decker lawsuit regarding the validity of the variances.
After that hurdle was crossed, Mr. Rhode still faced the
prerequisite imposed by Orono of dealing with the Hannah -
Stewart easements which purportedly cross over his property
and which the council found invalid in Resolution 851.
Negotiation proved fruitless and on March 2, 1979, Mr. Rhode
commenced a lawsuit seeking removal of th( easements. A
calendar motion was brought resulting in an early trial
Date. Extensive briefs were fill-' bT both sides and Judge
Levy did not te.?rh her (:•_ -isiol )ct(Aher 17, 1979. "he
ruled contrary to Resolution 851 held the easements tL>
be valid. A motion for an amender' Accision, immediately
made by Mr. Rhode, was denied but not until January 25,
1980. Mr. Rhode then appealed to the nesc:I.a Supr,me
Court.
M A C K A L-L. C R❑ U N S E & M O O R E
Orono City Council
Page 2
March 10, 1980
Mr. Rhode has done all he can at this juncture
to demonstrate that the easements are invalid. The current
Supreme Court calendar is such that a final decision cannot
be expected for at le: another year. Mr. Rhode has already
experienced three yep of double digit inflation in building
ousts and is asking you not to make him wait any longer.
Mr. Rhode wishes to begin construction while the easement
appeal is pending and his ability to do so is not contingent
on the Supreme Court decision. Furthermore, he has an
even greater interest in seeking removal of the easements
than Orono has in controlling them and will continue to
fight vigorously in pursuit of that goal.
In addition to removing the Resolution 851
caveat regarding the easements, Mr. Rhode has one further
request. in passing Resolution 851, the council fashioned a
building envelope which had as a lake shore set back, a line
denominated as D to D to C on the exhibit to the resolution,
and on the diagram below as well. Mr. Rhode originally
wanted to build considerably closer to the lake, as is
indicated by the black dotted line below. Mr. Rhode is now
willing to compromise his goals and seeks nothing further
than that currently enjoyed by his neighbor to the north
(formerly Jason Recker). He would agree to a set hack line
controlled by D to D, extended across the lot, subject to
small forward juts similar to those of the Becker house
1The council may allow Mr. Rhode to build at
this juncture. Judge Nicholson stated in his memorandum that
the addition of the Rhode house to a lot already containing
easements (if they are valid), would not violate the Orono
zoning code. His exact words were:
"Either these easements are invalid or not permitted
by the zoning code which was what the council concluded
or their existence plus the addition of the Rhode house
does not violate the code. If either proposition is
sound, then the Seekers' contention is not sustainable.
In any _event, the council could have granted a zoning
variance to rm�c Cite co-c— x�stF�nee of the easements
,-----
a►ri_ 'Fie Rat e-r.s,aicience since ot�ieiwi`se tfie Rai e pro-
pEg1 .+ouad�he without vaiue and the Recker -created
o-a: �r nts woufd estaTf i��i an un� her s11 just ing
ti.t� var anc'e. _(cmpfi�isi.s added) —Page 10.
MACKALL. CROUNSE & MOORE
Orono City Council
Page 3
March 10, 1980
colored in red below. Therefor,, Mr. Rhode's request is
conceptually shown by the red dotted line, subject to his
ability to move the small forward juts to the north or south
to accommodate his plans.
N
�c aeisre ley)
DriOmo Knodc
•
for
�cr sect
Ha V=6
11F
1,1)� 17 jgg(1
CITY. OF ORONO
[b
-Rvlode Property,
Lekt
YVI,kin etor+kL
ueW Rh%u
r ewe t
•
1
f--, Resojut %on No
C tS1 1►ne
M A C K A L L. C R O U N S E & M O O R E
Orono City Council
Page 4
March 10, 1980
In resolving this latter issue, Mr. Rhode
would like to remind the council that Judge Nicholson did
not even feel that a lake shore set back variance was needed,
as long as the lake facade of Mr. Rhode's house was not
situated in front of the lake facade of the home owned by
the lone objecting neighbor (Finding No. 25). Mr. Rhode's
new request, as indicated by the red dotted line, comports
with the set back line of the former Becker house.
One other Point must be made at this juncture.
Mr. Rhode is not seeking a new resolution or new variances,
Lut is seeking an amendment to Resolution 851. As indicated
in the May 25, 1979 letter to the council (copy attached),
the variance remains open for one year after all litigation
affecting the same is brought to a conclusion. This request
for an amendment is still within that time period.
Yours very truly,
MACKALI, CROUNSE & MOORE
By
JamesrT. Swenson
d
JTS:gp
Enclosure
cc: Al Olson
Bruce Malkerson, I-sy.
Jason Becker
William J. Lauer
Robert G. Mitchell, F,sy.
JASON C. HECKER
2700 WHITE OAK CIRCLE
LONG LAKE. MINNESOTA 55356
March 14, 1980
Mr. Alan Olson, City Planner
Orono City Council
P. O. Box 66
Crystal Bay, Minnesota 55323
Dear Alan:
V D 1E U 11, E i I W/ I F 0
� MM I-!* IM t
CITY Of ORONO _
�� :•lrtt'a t
I wrote Dick Benson some time ago to state I am
still the fee owner of 3145 North Shore Drive
(sold on contract for deed).
As I have told the Council previously, my work
requires frequent travel. I would hope the
Council would not follow its past practice of
scheduling meetings on 1410 Bohns Point Road
when I am out of town.
I will be out of the city (in New York, Jackson-
ville, Tampa, and Miami) from March 17-2i. I will
be in Minneapolis and could make myself available
on the following evenings:,
yt�4[ t K'ccicic <lj c
March 26, 27�,; April 2, 8, 9, 10,
11, 12, 13, �41(after 8:30 PM), 15,
/� 17, 18, 19, 20, ,'I1, 23, 24, 25,
Ic�Et r 29, and 30.
I could cancel some plans and return earlier from
New York City on April 7 if that were the only
date everyone else was available. I could arrive
by 7:30 PM on that date.
JCB:bbb
cc: Jerome S. Rice
Attorney at I.aw
Fredrikson, Byron,
Bisbee & Hansen
Yours truly,
�.c
Colborn,
s,OrC E. N►LSON
On NALO A.wOR.ItN
IwEDERIC. L TNORSD-+
J AMES E. HANNAH
W INS T ON E. MUNSON
C LA7 R. M00RE
C ONNOw �. SCHMIO
vAl M. HIGGINS
L ORtNS O.fR7NlSTAO
WOODBURY H. ANDREWS
GEORGE R. A. JOHNSON
ROGER v. ST AG Ef It wG
ANGREW LARK
FRANK A, LARK
FRANK
R Of t wT O, GI6 VD L1)
M A R V I N C. I N 18110
IRAN, P. JEVNE Gl
Gott aOw7 J. PULLES
MARTIN V. AT DEL TT
R DOERT S. LEE
JOHN e. LUN OQUIST
D AMES 7, SWENSUN
fit 'C
O. MADSON
..0 AIL S IwOST
DONNA L PURA[ r
MACKALL, CROUNSE & MOORE
LAW OFFICES
1000 FIRST NATIONAL f)ANK BUILOING
MINNEAPOLIS, MINNESOTA SS402
TELEPHONE li12)377-1341
TELEW 29-0904
March 17, 1980
Mr. Alan P. Ole 1
City Planner
City of Orono
P.O. Box 66
Crystal Bay, Minnesota 55323
Re: Jack Rhode
Dear Mr. Olson:
Of CGUMOCL
HENRY C. MACKALL
THOMAS P. N9LM9+
1.[OCR. r STIRCNWIELO' Iff1-I!!D1
PIE w. M00wt Ilfld.'fffl
DOw•LO •, HULrt! ul0�-IfTL
ROftOT M. CROUNSa 14492'I9741
o EWr�lE�^�fE D
CITY OF ORONO
5 46
I received Robert Mitchell's March 13, 1980 letter
regarding his absence from town on March 24, 1980. Inasmuch as
we are in no way seeking any amendment which would affect the
Hannahs and Mr. Stewart, I do not see how Mr. Mitchell's absence
will play in any part in the decision. The amendment to Resolution
No. 851 which ii sought herein is set forth in my March 10, 1980
letter. It consists of only two matters. One, deleting the require-
ments with respect to reaching an agreement on easements and two,
creating a lakeshore set back line similar to that enjoyed by the
former Becker house. The exact form of the resolution is something
which can L)e drafted subsequent to the hearing.
Very truly yours,
MACKALL, CROUNSE 6 MOORE
� 1
By
,James T. Swenson
JTS(dr
cc: Bruce Malkerson, esq.
Jack F. Rhode
CITY of ORON()
Pvst (►flire Nix 64i0Urvwtal Hay, Minnesota ").53:1S0Municipal Offices
Ott the worth .shore of Lake Minnetonka
March 17, 1980
TO: All Interested Parties
RE: Jack Rhode Variance - 1410 Bohns Point Road
Application #546
Gentlemen:
As of today, this office has received a new application for a
zoning variance from Jack Rhode. This office has also received
correspondence from Jason Becker and from Robert Mitchell representing
Gregg Hannah and Darrell Stewart. Mr. Rhode has requested City
Council review on March 24, 1980. The other parties have requested
delays because of various conflicts. Each writer has suggested
different dates and different schedules.
This letter is intended as a means to communicate with all of you
as best we can. The City Council and Administrative Staff have
many other items of concern besides this one. Your various positions
have placed the City in the difficult position of being able to
pleases no one.
If all of the interested parties will mutuallv agree on a date for
City Council review, we will be happy to accommodate you. If you
do not agree, we must. resume our neutral role of scheduling reviews
according to our established zoning application procedure. In that
case, it will be incumbent on each party to appear when scheduled or
to provide alternate communication.
Here are the (around rules:
1. A calendar is attached showing the regularly scheduled Planning
Commission and City Council meeting dates. No special meetings will
be held. We suggest you arrange your schedules accordingly.
2. Complete applications are required to be in my office at least
ten (10) days before a scheduled meeting or it will not be on the
agenda. Follow-up responses must be in my office no later than
Wednesday morning preceedinq each meeting in order to be included
in the agenda packet.
March 17, 1980
All Interested Parties
Application #54b (Variance)
Page 2
3. All of your requests, correspondence and inform --Lion must be
sent to all other parties. The City will not stand the expense of
multiple copying and distribution.
4. We maintain complete public files on each application. They
are open for review in our office during normal business hours. If
you expect to review a file, we would appreciate a call ahead so
the review can be accomplished without disruption of our normal
business activities. Copies will be made from the file at your
cost, ($1.00 first copy + .25 each additional copy), but do not
expect copying on -the -spot. It may take two days to copy any
volume of material.
5. Our official notice of meetini agendas is mailed from the City
Hall each Friday prececding a meeting. Because of our limited staff,
we cannot provide any earlier official notice. If you wish to check
on an upcoming meeting, you may call the office earlier in the week,
but our knowledge of the final agenda will be limited.
Now, on to specific items:
This application has been made to "modify Resolution 851". It
includes a revised plan as attached to this letter. There have been
no other plans submitted to date.
Mr. Rhode and Mr. Swenson: Your application as received on 3-17-80
is not complete. There was no property owners' list as required by
the application instructions. The plan submitted is a sketch showing
intention but is not based on a survey and includes no dimensions.
Therefore, staff review is impossible.
As you wi.11 recall from the original application No. 210, consiOerable
difference of opinion arose- concerning setback lines. Therefore, it
will be my position and my recommendation that there be no review until
all applicable items be accurately located and drawn on one certificate
of survey including at least the following:
1. Rhode lot boundaries, carriage house location shoreline and
required front, side and lakeshore setbacks. Actual proposed
house plan or greatest area to be c.)vered by a house. Lot
area, existing and proposed hardcover area.
2. "Becker" lot, house location and shoreline,
3. "Lauer" lot, house location and shoreline.
4. Private driveway easement and all other easements as recorded.
March 17, 1980
All Interested Parties
Application #546 (Variance)
Paqe 3
On March 6, 1980, you (Mr. Swenson) asked for placement on the
agenda of March 24, 1980. My reply was affirmative providing a
complete application was received, but I promised no action because
of the very concern expressed above. Because t'^.e application is
not complete, I will not place it on the agenda.
Each City Council. agenda includes time for "Public Comments".
If you still desire to address the City Council on March 24, 1980,
this would be the appropriate approach.
Mr. Becker: We have received your requests for inclusion in review
of this application. As noted above, if you can arrange a schedule
between yourself and Mr. Rhode, the City will certainly defer review
until that time. On the ether hand, if Mr. Rhode does submit a
complete application and you cannot agree among yourselves as to a
schedule, the City will have to review the application according
to our schedule in or0er to assure the applicant of a prompt hearing.
You can be assured of receiving all notices on the matter as outlined
above.
Mr. Mitchell, Mr. Hannah, Mr. Stewart: We have received your requ sts
for inclusion in review of this application. We are on notice of the
appeal to the easement suit. Our comments to you regarding scheduling
and notices are the same as made above to Mr. Becker.
To all: After all the time and expense invested in the issues
concerning this lot, I would hope that all parties could at least
agree on the points of contention and limit discussion to new
information not previously hashed and rehashed. I look forward to
receiving some kind of coordinated response from the three parties
combined.
Sincerely,
Alan ^. Olson
Village Planner
All(): kh
Sent t _;: Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Jack Rhode
Jason Becker
Gregg Hannah
Darrell Stewart.
William Lauer
Jim Swenson
Jerry Rice
Robert Mitchell
Bruce Malkerson
cc: Mr. Walter R. Benson
City Council
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CITY, OF ORONO
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6ri,V'n.2l Rhode
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JASON C. BECKER JU APR 1
1990
9200 WAYZATA BOULEVARD
MINNEAPOLIS, MINNESOTA S5426
CITY, OE ORONO
March 31, 198n
S46
Mr. Alan R. Olson
Village Planner
City of Orono
P.O. Box 66, Crustal Bay, ' % 55323
Dear Mr. Olson:
I have just returned from a business trip and found vout letter
waiting for me.
I thought that you covered the subject well and will try to abide
by the ground rules except:
1. I believe any substantial "modification" of
resolution 851 is, in effect, a new resolution
and should be so regarded by the Orono Council.
Changes to eliminate major provisions such as
the "easement issue" or relocating the house are
"substantial" modifications. '_ believe that I am
antitl-d to "due procesb" on a substantial change.
2. According to the Orono Code (32.371) variances
expire one year after date of approval. Conse-
quently, since more than one year hag passed, a
new •ariance applicatiAm IF. in order, starttny with
the Orono Planning Commission.
1 Don't ap,ree with your paragraph #3 which P-:cuses
the City from informing interested partier of
relevant Information. The ftlet that the City "wIl'.
not stand the expet,ae of multiple copvinft" is not
a legitimate reasur, for failure to notifv which
could, in turn, result in an absence of "due
process".
4. A major reason for Rrenting a , -.: ianct, to Mr. Rhode
was the Council's finding that the easements were
"illegal". Now that the courts have ruled the ease-
ments "valid", I would assume the Cotui-il would not
grant a variance since, according to B. "alkorsAm,
Alan R. Olson
March 31, 1980
Page 2
legal council to the City, the reason a variance
could be granted was that the easements were
illegal. I presume Mr. Malkorson would believe
that if the easements are valid, the lot is a
multiple use "outlot".
Sincerely,
Jason C. Becker
JCB:dmo
JASON C. BECKER
2700 WHITE OAK CIRCLE
LONG LAKE, MINNESOTA 55356
April 9, 1980
Mr. Jack Rhode
1690 Shadywood Road
Wayzata, Minnesota 55391
Mr. Darrell Stewart
3185 North Shore Drive
Wayzata, Minnesota 55391
Mr. Gregg Hannah
Bohns Point Road
Wayzata, Minnesota 55391
Gentlemen:
E IS LE � V IF
CITY OF ?NO
—5-4
I suggest we get together (witnout attorneys)
to discuss next steps with respect to the Orono
Council and 1410 Bohns Point Road. The purpose
of the meeting wou13 be to agree on a timetable
for Council meetings so we could all participate
on an equal footing.
Yours truly,
J
JCB:bbb
cc: Alan Olson, City Plannei
Orono City Council
F_^4 s/r /A
F LOYD C. NELSON
DONALO A. MO.KEN
F RE O C RICK L. THORSON
JAMES ■. HAN So
WIN6TO. C. MUNSON
CLAY R. MOORC
CONNO. F. sC NM'O
VAL M, H16GINS
LONE INS G. BRYNESTAO
WOGOBURY H. ANDREWS
GEORGE IF. A. JOH NEON
ROGER v, STAGE 0CRG
ANORCW R, CLARK
FRANK A. DVORAK
ROMCRT O, GISVOLO
H ARVIN C, INGSER
FRANZ P. JEVNC GI
L GREGORY J. PULCS
MARLIN V. AYOCL07T
RO�CRT S. LEE
JONN B. LUNOOUIS♦
JANI T, SWENSON
ERIC O.MAO SON
INICHAEL S. FROST
DONNA L no SAC.
MACKALL, CROUNSE & MOORE
LAW OFFICES
1000 FIRST NATIONAL SANK BUILDING
MINNEAPOLIS, MINNESOTA SS402
I F I F N• O N E 16 r 33 3 1 3 4 1
. I F. 29 "9C4
June 17, 1980
OF COUNSEL
HENRT C. MACKALL
1. OM AS P.
HELMCY
r REOERICK H. STINCHF ELG IISBI 19501
PERw♦ A. MOORC 11■94"a SI
DDNALD A. MOlML4 11l04' 15731
ROBERT M.C.OUNSE 11893 19741
Mr. Alan P . Olson CiTY, OF OR",
Village Planner
City of Orono
Post Office Box 66
Crystal Bay, Minnesot- 55323
Re: Jack Rhode Variance - 1410 Bohns Point Road
Application #546
Dear Mr. Olson:
Pursuant to your March 17, 1080 letter, I hereby
request that the Rhode platter be placed upon the calendar f-r the
June 30, 1980 City Council meeting. This letter has been. -fit in
order to meet your 10 day deadline. I have also enclosed the
property owner's list and the survey showing all three lots and home
locations, both pursuant to the above -referenced letter.
On March 10, 1980, I sent all ccncerned , letter
outlining Mr. Rhode's position. It remains the same except that
he has compromised still further as is indicated on the survey sub-
mitted in response to your request. No part of Mr. Rhode's house
will be situated any closer to the lake than the former Becker house
(line D to D).
I have also enF loses] a proposed amendment to Resolutior.
No. 851. The new material is all underlined for ease of reference
and that part of the original resolution which needs to be striken
is indicated by the dotted line. Mr. Rhode's apoeal of Judge Le•►y's
decision in the Rhode v. Stewart and Hannah mat r has just recently
been briefed and no decision is expecte in the gar future.
Very truly yours,
MACKALL, CRC"SE & M90RE
By-
,i`Vnes T. Swenson
JTS:dr
Enclosures
MACKALL, CROUN5E & MOORE
Mr. Alan P. Olson
June 17, 1980
Page Two
cc: Mary Butler
Walter Massengale
Norman Paurus
Jo Ellen Hurr
Mayor William Van Nest
Bruce Malkerson, Esq.
Jason Becker
William J. Lauer
Robert G. Mitchell, Esq.
Jack Rhode
TO: Council
FROM: Alan P. Olson
Village Planner
DATE: June 18, 1980
SUBJECT: #546 Variance - Jack Rhode, 1410 Bohns Point Road
You should have received by mail a request from Jack Rhode to have
his #210 Variance renewed and amended, including redesign and relocation
of his house.
His attorney requested a slot on the June 30, 1980 agenda which has been
done for discussion purposes. I have not received an acceptable survey
upon which to base a factual review.
If Mr. Rhode insists on revising his house plan and locution from that
approved in Resolution #851, then I recommend and request Council
direction to refer said new application to the Planning Commission for
formal, standard review.
." C, 6 - 30 - fro
Telephone 473-7357
1 CITY of ORONO
Pont Office Box 66 • Crystal Bay, Minnesota 55323 • Municipal Offices
On the North Shore o/ Lake Minnetonka
June 18, 1980
Mr. James T. Swenson
Mackall, Crounse 6 Moore
1000 First National Bank Building
Minneapolis,
Minnesota 55402
Re: #546 Variance - Jack Rhode, 1410 Bohns Point Road
Dear Mr. Swenson:
I have today received your request for an appearance at the City
Council Meeting of June 30, 1980. Your application is now complete
except for the survey per Page 2 of my March 17, 1980 letter to you.
The paste up xerox copies submitted show concept to me, but it is
not a certificate of survey and it can not be determined if it is
drawn to scale or not.
I will place this on the Council agenda for discussion, but I will
not be able to supply a zoning review until I have proper documentation.
As I have said to you previously, if Mr. Rhode were applying for
variance renewal to build the same house proposed the first time,
extensive factual review has already teen completed and documented.
But this is not the case; you are applying for a new design in a new
location. Therefore, a proper survey must be provided and I will
recommend a complete review by the Planning Commission as per the
City's standard procedures.
Sincerely,
'A n P. Olson
Village Planner
APO:kh
cc: Mi. Jason Becker
Mr. Darrell Stewart
Mr. Gregg Hannah
Mr. Bruce Malkerson
AMENDMENT T(,
'JUN 18 1W RESOLUTION NO. 851 # 5
F-M, /S,
VILLAGE OF ORONO RESOLUTION GRANTING JACK RHODE A
VARIANCE TO ALLOW CONSTRUCTION ON THE
LOT KNOWN AS 1410 BOHN'S POINT ROAD
WHEREAS, ,tack Rhode has applied in 1976 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 has now applied for an amendment to Resolution_ No. 851,
and
WHEREAS, •)ason C. Becker and Mr. Lauer, neighbors who
have property adjacent to that lot, have appeared and expressed
concerns relat,.,d 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
1111rREAS, #-he planning commission, -ity council and
staff have had studied this the first application at length,
and have _had_studied the testimony and memoranda previously
submitted by Mr. Rhode and his attorney, James T. Swenson,
Esy., and hawrrnee Lorens Q. Brynestad, Esq., and the
material svbmi c-ted by "C. Jason Becker and his attorney,
,Jerry Rice, Esq., and whereas the city council and staff
have studied the reapplication at length, and have studied_
all _addi_tion_al testimony, including that of the Greg S.
llannahs an_d Darrell K. Stewart,_ and all additional written
matey. ial; anA
WHEREAS, the city council has
at eity ee"nei} lRCetinJs en A"J"st
and 0o-teheV +Xr 1939T matter on
reviewed this temtie+en•-
8T }934T A"I"st 827 }944T
^_ 1980, _ and
WHEREAS, the city council is charged with the responsibility
of enforcinq the Orono zoning code in order to promote the
intents and purposes thereof including the preservation of
thei- health, g.ife_ty, and welfare of the citizens of Orono,
NOW, THIPIX ORE, 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, th., city council grants the variances as noted
hereinafter fn+ the following reasons:
I. FINDINGS OF FACT
1. That Jac,. Rhode's lot, commonly known as 1410
Bohn's Point Road, is a lot of record existing upon
January 1, 1975, under single separate ownership in an
LR-18 use district.
2. The lot does not meet the minimum requirements
of the Zoning Code as to area aid width for a single
family dwelling in an LR-1B use district.
a. The lot i. 29,300 quare feet in area, based
upon the survey L. Gabriel.
h. 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 cnnfiining existing single family dwellings.
a. Vie lot is therefore unique and the general
cviui 4 t:.ons of the lot are peculiar to such property.
4. Vie lot is presently sere• I by the public
sanitAry sewer system.
5. The proposed location of the single family
dwelling meets the 35 foot frond yard, 10 foot side
yard and 30 foot rear yard requirements.
6. The existing carriage house is located 24
to et from the rear lot line.
7. There is are presently in the chain of title
an easements benefiting Darrell K. Stewart and the Greg
S. Hannahs which purports to provide for a walkway over
' .I- lo} the lake.
8. The easements runs over one of the side
yards. -
a. The easements excludes any driving privileges.
b. the side yard affected by the easements will
rem�iln covered by grass or foliage.
-2-
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.
(3) The openness or "open space" of the side
yat-1 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 re(Ini.rod by the city ordinance.
Fl The prepesed 4eeatien of the front of
the Oedse exists a+eser than the average distAnee
trot" the sherel-ine of existing residenee bni�dings
r,nd nearby 4etsr
b- a. The "average se+. back requirement" was not
(I igned nor has it been interpreted in the past
to prevent the development as proposed on this
sort of unique angulated shoreline adjacent to
,lack Rhode's lot.
e: b. The intent of the "average sct back requirement"
wasro protect the sight lines of neighbors.
d- c. The only neighbors whose sight line or view
(,t The lake will be obstructed b-.• the proposed
location, the Lauers, have no objection to the
proposed location of the dwelling.
d. Vie s_cght line or view of the lake from the
lakeside facade of the Becker `house will not be
o_bst.>ucted b the proposed location as shown on
Exhibit A.
10. The city council has granted variances in
such r-as,,r; in the past.
11. A prior house, now removed, was approximately
40 feat from he lakeshore.
12. !Ir. Lauer wants the building to be as far
fr)rward ;v, possible.
13. Ir. Becker war t_s the building as far to the
rear ,v; 1— ;sible.
M/SM"
-- yNA?144jAC4 " X"ADO
la Less than 25% of
Le.. of the shoreline and
covered by "hard cover".
the area lying between 75
the rear lot line will be
15. The carriage houses, presently in existence on
the lot, was in existence at the time of the passage of
applicable ordinances as well as at the time when Mr.
Rhode's l,)t was created and given its description as
presently recorded.
16. Mr. Rhcde'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 structure. 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,
wouJA result in diminution in value to the surrounding
property. Plans for the house show co►.struction of
adequate garage and storage space attached to the home.
Them would be too much hardcover if the carriage house
remained and the proposed house was constructed.
4-4- There is presently in existence a p"rperteA
wa}kwmy -Ind lake aeeess easement that raps ever
tE1r" land cind pnrpertedly a}}ews the ease►ne-nh_ heider9
C." Pen'tryet a leek on the let:
197 17. There is presently in existence one dock
used jointly by the two easement holders referred to in
paragraphs 7 and 8.
19: 1R. Prior to purchasing the lot, Mr. Rhode
d i scus.,;-d the "bui ldabi 1 ity" of the same with flank
Miihich, 7oring Administrator.
26: 19. Mr. Rhode was told that lot had in the
t,,ist bt"r, determined to be "buildable" by prier council
.act inil.
21-: 20. The fact that Mr. Rhode's 'lot of record"
exists i dated from other undeveloped land makes it
unique aui different from the conditions which apply to
ether I —1 in the area.
a. The substandard width 4nd area are peculiar
to the lot and; do not apply generally to other
land i_n the area.
b. '"he lot cannot be combined with undeveloped
I aII'j .
-4-
(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
aad -in equitable interest in the lot at the same
t.imo he had an equitable interest in any adjacent
1nt-.
(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 iot. By
the Lime Rogers acquired an interest in Rhode's
lot, he had given up his interest in Becker's lot.
22- 21. It is necessary that Mr. Rhode be granted
a variancf� 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 LP-1B lot
for which he paid $45,000.
23- 22. Without the variances as t,, '-,c size and
width, Mr. Rhode would suffer the i-..,Lticular hardship
of not being able to use hi< <esidential lot for residential
I)u rpos(-s .
24- 23. �Larling the variances as to lot size and
width i:0 ' not be contrary to th., intent of the zoning
code.
a. There will be no threat to public health
occiiiring because of excessive crowding of private
sewn,.le disposal systems.
b. One more dwelling in the already developed
atoa 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
dann,,r to the safety of the neighborhood.
d. No impairment of morals will r.esilt from the
pr,-)f,•>sed construction of the single family dwelling.
e. the existence of one more dwelling in the
area will not materially increase the traffic in
the a rea .
-5-
254 24. 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 durahility of the dwelling because of soil conditions.
26r 25. The same conditions outlined above apply
to granting a variance as to the "average jet back"
rule, to -wit: i'_ will not be contrary to the intent of
the Zoning Cnde and there will be no adverse effects.
24r 26` The planning commission, after hearing
te3tlmony, iccommenaed to the council that .Tack Phode
he granted a variance from the "average set back"
requirement, which would allow him to guild as proposed.
28r 27. Any variance for the lot should not be
granted unless carriage house is first removed.
28. The situation which existed as of November
14, 19-77L -Fe-n Resolution No. 851 was passed, has not
changed w_i.th respect to the reasons underlying the
decision to use line D to D as depicted on Exhibit A,
as^the .a.ke Wore set backtine for the Rhode property.
29. That that part of line D to D to C_ r esented
_D to C_ on Exhibit A_ to Resolution -No. 851 does not
provide aTiy greater protection for the Becker's si!et
lines of the lake than D to D" extended all the wayacross LhI Rno a property. �!
30. Line D_ to D.L extended al: the way across the
Rhode_ roperrtt protects the BeckersT sight line or
view of the lake. (See finding No. 9 herein.)
The above findings of fact are in part based upon and
dependent ups►, the following findings of fact:
A. That the single family residential home is to be
built in a loC:ition noted on Exhibit A attached hereto ind
that prior to any construction that a survey be c- ducted to
insure that th-.• house is located as noted on Exh c A and
that the city Toning and planning administrator informed
of the commeri- ment of construction at least 24 hours prior
tho•rAtno.
B. That there be only one dock allowed on the Rhode
ot which dook shall be no greater than 100 feet in length.
-6-
'. That on the Rhode let either attached to the dock,
ed i fr-ant ' the lot or located on the lot, there ma-,
not ;)„ -I, l r ► nore than three bents watercraft,_ as
defined by vingul. _on 1.01, subd. 13 of LMCu regulations,
moored or st-red.
D. That a resolutior be filed in the chain of title
for the let noting that the city council hereby finds as
follows:
(1) That they 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
subdivision 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 req"irements.
(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
anyone, 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 set forth in Chapter 74 of the Orono Municipal
Code.
E. Thar the granting of a private dock rights or
private dock; -Asements on the lot is not a permitted or
conditional in that use district and that any suet-,
easements ar- invalid under the city ordinances.
F. That Mr. Rhode anif any and a H ether owners
of the let must exe7ute, prior to the effective date of this
variance, xi"st exeeete a restrietive eevenant in the form
appr"ved by the eity etterneyr which restriettve eevennnt
sets forth the above items relating to deeks and which
hereinafter w M restrfet a document to be filed in his
chain of tit_1e, which restricts the use of the property to
one Mirk �)f iOQ feet in length, with not more than three
beats of any " Ne or shape watercraft moored at the dock,
in front of th- lot, or on the property at any time.
G. A dof-k is an accessory use and must be attached
directly to th" residential lot for which it is designed to
serve.
-7-
If. Tir! three boats watercraft allowed pursuant to
this resolution may be owned only by Rhode or the two present
easement holders, Gregg Hannah and Darrell Stewart, or their
successors. `-
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.
1T. 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 v:iiance as to lot size and width with respect
to tho lot -ommonly 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. 'I'hc above variances are contingent upon and shall
not be offoctive until the existing carriage house is
removed at Mr. Rhode's expense from the property and execu-
tion and filing of the restrietive eovenant document relating
to the use of .jocks on the Rhode lot as set forth in the
findings of faCtT in a farm aeeeptabie to the eity attorney
anti a filing by Mr- Rhode of a title opinion an the property
on an 4r-ht-MMfe abstraet showing ail people with any
Wereiks 4n the prapertyT whieh people m"mt thereafter
emeembs the r-gtrietive eevenant7
4. 'Cho city council hereby finds that the variance
shall be deniel and will be considered to be invalid unless
the above items are completed to the satisfaction of the city
prior to the printing of a building permit, and variances
would have been denied except for Mr. Rhode's agreeing in
writing to th- provisions of this resolution.
-8-
This resolution was adopted by thj city council of the
City of Orono by a vote of ayes ayes and nays
Oil 198�.
William B. Van Nest, Mayor
A'rTEST:
Wa er k Aenson
C Ierk /Acimi.n ist rator
I have read the terns of the above resolution and agree to
be bound by them.
Jack Rhode
Rhode
-9-
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JAMS i. SW [NEON
MADSON
MICHA(L S rw OST
DONNA L MOSAC.
MACKALL, CROUNSE & MOOR
LAW OFFICES
1000 FIRST NATIONAL DANK BUILDING
MINNEAPOLIS, MINNESOTA SS402
•r, f. J9 [J 9 U 4
June 20, 1980
Mr. Alan P. Olson
Village Planner
City of Orono
P.O. Box 66
Crystal Bay, Minnesota 55323
Dear Mi. Olson:
Dr rDu«ul
fN*♦ C. MACNALL
THOMAS P. H[IM(.
IorO[w1Cr «,STINCHF�r LOI1((1 12S01
Prow, *. MOO*f 1-SSA IS6 S,
OONALO A. NOLMfS "904
-17711
008FRI M,C0004S[ 11597 '51/1
VILLAGE Of OR04io
Re: #546 Variance - Jack Rhode
1410 Bohns Point Road
Enclosed herewith and hand delivered by Jack
Rhode, please find the certificate of survey discussFd in
your June 18, 1980 letter and the carbon copy of the drawing
by Mr. Petersen.
Very truly yours,
MACKALL, CROUNSE & MOORE
L:.T.es T. Swenson
l
JTS:dr
Enclosures
cc: Jason Becker
Darrell Stewart
Greg Hannah
Bruce Malkerson, Esq.
1✓I_GUL1:R MEETING OF TIIF OkONO COUNCIL, ,TUNE 30, 1980 Fa(le 24
Jeanne Mabusth, uon i r,g Admi n i strdtor, (•nt A,rf!d into VAR [ : ,'.CE
the record the requUst of Michael Lynn, 1265 Rracketts 1265 Ttracketts Poi:
Point Road, for a variance dated .Tune 24, 1980, which #567
states: Mich=►el Lynn
Zoning District: 1,R-1A
A) Ft-ont yard variance required for traveled', not
platted road:
Required: 50'
Proposed: 34'
variance: 16T = 32%
B) Hardships:
1. Width of lot 175' - setback from lakeshore
of 75' ►nd s+.reet setback of 50'
2. Location of traveled road as opposed to
platted road.
The Lynns request a front yard variance setback of
16' for a tennis court 60' X 120'. The subject lot is
3+ acres, but a long, narrow l,keshore property. the
court will be constructed in eavily wooded area of
the property. The On -Site SepzLic Systems Manager
advises that the location of the tennis court will not
effect the (�xisting or future dra:nfield area. The
improv�ment will not create a hardcover problem.
The Planning Commission at their meeting of June 23,
1980, approved the variance for a tennis court based
on the hardships of configuration of the lot and the
location of the lake and sheet.
Council Meeting - June 30, 1980
Hurr moved, Paurus seconded, to approve the variance
request of Michael Lynn, 1265 Bracketts, subject to
the Planning Corrarnission recommendations of June 23,
1980. Motion, ayes (3) - Nays (0). Councilmember
Butler temporarily absent.
Alan Olson, City Planner, prepared a memo dated June 18, VARIANCE
1980, concerning a variance for Jack Rhode, 1410 Bohns l#i@--I3q ns Point
Point Road, which states: #546
—Jack Rhode
You should have received by mail a request from Jack
Rhode to have his #210 Variance renewed and amended,
including redesign and relocation of his house.
His attorney requested a slot on the June 30, 1980
agenda which has been done for discussion purposes.
I have not received an acceptable survey upon which
to base a factual review.
(Continued)
REGULAR MEETING OF THE ORONO COUNCIL, JUNE 30, 1980 Page 25
If Mr. Rhode insists on revising his house plan and VARIANCE
location from that approved in Resolution #851, then 1410 Bohns Point Rd.
I recommend and request Council direction to refer (Continued)
said new application to the Planning Commission for
formal, standard review.
Council Meeting - June 30 1980
Present were: Jack Rhode, his attorney, James
Swenson, Jason Becker, and Gregg Hannah.
Mr. Swenson presented the City Council with a leteer
from the Lauers, who live next door to the Rhode
property, stating that they agreed with the location
of the proposed relccation of the house.
Mayor Van Nest stated that Mr. Jack Rhode has shown
us the same plat prepared by the Gary Gabriel
Land Surveyors showing the proposed Rhode residence
as drawn on April 15, 1980. The surveyor states that
this is the best area to place the house, which puts
the house in the center of the lot and will allow
an area for landscaping on either end of the lot
after the carriage house is removed.
Mr. Swenson reviewed Resolution #851 stating that
they would like Mr. Rhode to build without a
restricted covenant on the easements that was originally
included in the resolution.
He stated that he does not believe that the application
should be referred back to the Planning Commission
because the Planning Commission had already recom-
mended the buildability of the lot in relation to the
easements.
Mayor Van Nest stated that we are now being requested
to change the front setback line and that he has not
heard any hardship or reason for the change. This
change should be reviewed by the Planning Commission
to determine if there is a hardship or other reasons
for a change. He stated that the easement and dock use
area be negotiated by Mr. Rhode and the two easement
holders.
Mr. Jason Becker stated that he felt it vas unfair to
him to make any decision tonight due to the fact that
he has not had time to prepare a reply. Mr. Becker
stated that he felt due process is necessary to make
any changes, therefore, he felt that the new application
should be referred to the Planning Commission for review.
Butler felt that it was not necessary to be referred
to the Planning Commission because it is still a house
on a lot and she does not feel t.-lat it is a material
(Continued)
change.
Ap
If
REGULAR MEETING % THE ORONO COUNCIL, JUNE 30, 1980 Page 26
Paurus moved, Hurr seconded, to refer the ,Jack Rhode, VARIANCE
1410 3ohns Point Road, application to the Planning 1410 Bohns Point
Commission for their meeting of July 21, 1980 to (Continued)
review the front setback line with the intent to
bring back to the City Council for their meeting of
1,i1v 28, 1980. Motion, Ayes (4) - Nays (" .
Alan ntson, City Planner, prepared a memo dated PUBLIC WATERS
June 9, 1980 concernig the Department of Natural DESIGNATIONS
Resources public water designation, %,hick states:
The Department of Natural Resources is in the process
of identifying all public waters in Hennepin County
and has asked for review and comment from the County
and each City.
We have reviewed their prel:minary map of Orono
dated May 12, 1980 and comp.,red it to our own
wetlands inventory. We agr-,e %,."-h ail their
designations and suggest aud;�,o those wetland areas
colo ed green on the map.
We recommend Council approve the Department of Natural
Resources' public waters designations with the
additions noted by staff.
Council Meeting - June 30, 1980
Hurr moved, Mayor Van Nest seconded, to approve the
Department of Natural Resources' public waters
designations with the additions noted by staff.
Motion, Ayes (4) - Nays (0).
Alan Olson, City Planner, prepared a memo dated STUBBS BAY ISLAND
June 9, 1980 concerning an island in Stubbs Say
which states:
In February, we briefly reviewed some correspondence
between the Bureau of Land Management and the Metro-
politan Council concerning Bureau of Land Management
land in the metro area. One island was noted in
Stubbs Bay which Metro suggested Orono may wish to
acquire.
On June 5, 1980, we received a letter from the
Bureau of Land Management regarding land use plans,
etc., still referencing the Stubbs Bay Island.
I recommend we inform the Bureau of Land Management
that our zecords indicate private ownership of the
island, and that Orono has a flowage and conservation
easement over the entire property. If there is own -
ship conflict, the Bareau of Land Management should
work it out with the listed property owner. (Continued)
William J. Lauer
1430 Bohn's Point Road
Wayzata, Minnesota 55391
June 26, 1980
Orono Village Council
Orono, Minnesota
To Whom It May Concern:
Mr. Jack Rhode has shown us the site plan prepared by
Demars - Gabriel Land Surveyors showing the proposed
Rhode residence as drawn on April 15, 1980.
Mrs. Lauer and I agree that the area as shown is the
best area on which to place the house. This puts the
house in the center of the lot and will allow an area
for landscaping on either end of the lot after the
carriage house is removed.
Sincerely yours,
William J. La er
WJL/lrb
MASON C. BECKER
2700 WHITE OAh CIRCLE
LONG LAKE. MINNEBOTA 55356
HIRE
-ftNr
July 8, 1980 YKJAN 06
REGISTERED RETURN RECEIPT REQUESTED " y I`
Mayor Wm. Brad Van Nest
City of Orono
1' . 0. Box 66
Crystal Bay, Minnesota 55323
Dear Mayor Van Nest:
At the Council meeting on June 30, 1980, you indi-
cated that even if the easements held by Hannah and
Stewart were legal and valid as adiudged by a court
of law, Jack Rhode should still be allowed to build
on the lot at 1410 Bohns Point Road You may recall
that when I asked why this issue wa not being re-
ferred to the Planning Commission fc discussion,
there w, ; a lot of "hemming and hawi..g" and Bruce
Malkerson made the statement that "the easement issue
did not ever come before the Planning Commission."
Jim Swenson, attorne- for Mr. Rhode, noted at this
point that the matter had come before the Planning
Commission.
1) I believe it is Procedt-all incorrect for this
matter not to 5e re_'err-ed to the Planning Com-
mission for the following reasons:
a. I believe the minutes of the Planning Com-
mission meetings will show that it was
discussed.
b. Mr. Rhode is really asking for a new variance.
There are a number of changes in tTc original
variance which are substantial. As a new
variance, it is required by Code to go to
the Planning Commission (Sec. --2.330).
C. Even if the Code did not specify that new
and revised variances should be submitted
to the Planning Commission, it is only fair
that the Commission, in making its recommen-
dation to the Council, consider the fact that
the easements which the City of Orono declared
Mayor Wm. Brad Van Nest July 8, 1980
Page 2
to be illegal subdivisions of 1410 Bohns
Point Road are now, on the basis of a court
decision, considered "legal." Also, how do
we know that the Planning Commission would
have approved a variance had it known all of
these facts: that the lot was only 67 percent
of approved zoning size (one acre), that the
width was substandard relative to the Zoning
(ode, that the position of the proposed Rhode
house violates Section 34.20: of the Code
relating to setback distance from the lake,
that building the Rhode house 26 feet from
the Becker house would substantially reduce
the value of the Becker house, that there
were two valid easements across the property
including dock rights and rights to SS feet
of beach, that a survey dated 9-3-74 proves
Fred Rogers controlled both 3145 North Shore
Drive and 1410 Bohns Point Road, and that the
easements represent a legal subdivision of
1410 Bohns Point Road. Certainly, I have a
right to know why the City of Orono is break-
ing precedent and permitting multiple use of
the lot which by the City's own definition
is an "out lot" or "illegal subdivision."
d. According to the Orono Zoning Code, if a
variance is not acted upon within a 12-month
period after Council approval, it must be
resubmitted to the Planning Commission
(Sec. 32.371).,
e. Sections 32.350 and 32.370, reasonably con-
strued, say that if part of a variance is
denied or violated, a new variance must be
submitted.
f. Section II, Paragraph 4 of Resolution 851
states that if Mr. Rhode fails to meet all
of the provisions in the resolution, the
variance will be considered denied. Mr.
Rhode did not meet the provisions of the
resolution, therefore, the variance is auto-
matically denied.
Mayor Wm. Brad Van Nest July 8, 1980
Page 3
2) Mary Butler stated that the request by Mr. Rhode
or changes in his variance request was not
ant. —
Since Ms. Butler does not want to follow the
rules of conduct as suggested by the Code,
which calls for the matter to be submitted to
the Pl"nnir.g Commission, I can only assume she
is beholden to Mr. Rhode or wishes to discrimi-
nate against me. Mr. Rhode is asking for three
changes, each one individually being material.
He is asking that the house be put in a location
different from that specified by the original
Resolution SS1. He is asking for a waiver of
Paragraph 28F calling for a restrictive covenant
between Mr. Rhode and other owners of the lot
Prior to the effective date of the variance.
Thirdly, he is asking to delete the provision
of the variance which calls for Mr. Rhode to
extinguish the easement rights for future ease-
ment holders who might purchase Mr. Hannah's
or Mr. Stewart': domicile. The request for
changing the position of the house and placing
it forward of the line specified by the Orono
City Council is, in itzclf, i maior change since
it violates the City Code which proviu
no building may be located closer to the siiure-
line than the average distance from the shore-
line of existing residence buildings on adjacent
and nearby lots (Sec. 34.2011.
3) The City Council erred in permittin& Mr. Rhode
and his lawyer to make an argument for changes
in—Reso ution 851.
Mr. Alan P. Olson's letter of June 18, 1980,
states that he would recommend "a complete
review by the Planning Commission as per the
Citv's standard procedures." I w ,s not prr pared
on JTune 30 for -ate it n�efore the Council, in
view of what Mr. Olson had said in his letter
which indicated that the Planning Commission
would be the proper form for arguments. 'llso,
in talking to Jean Mabis at ,:3C P.M. on J•-ine 23,
Mayor Wm. Brad Van Nest July 8, 1980
Page 4
1980, I was similarly informed that the Planning
Commission would be the proper form for a hear-
ing. I believe the Council was out of order in
permitting Mr. Swenscn to present his arguments
on June 30 since this will unduly prejudice the
Council in favor of changes in Resolution 851,
whereas I did not have proper opportunity to
prepare the many arguments which indicate a
change in the resolution shoild not be made.
4) The City Council seems to have forgotten the teams
o in Resolution 851 inclu _one i ci Tires
that the variances containtT n the resolution
would have Feen enie- Mr. Rhode a n t adreed
in writing to the provisions eso utlon 851
I refer you to Section II, Paragraph 4, which
states that the City Council "hereby finds that
the variance shall be denied and will he con-
sidered to be lnva i un ess the above items
are completed to tT►c- satisfaction of the City
prior to the granting -if a building permit, and
these variances would ha:,e been denied except
or Mr. ode's agree ni g i,: wrrit g to the pro-
visions of this resolution." Now that Mr. Rhode
is unwilling to abide by the c)r,iition� of the
resolution, why is the ' ty Counc, -hAnging its
point of view on this mdLter?
S) The 3uestion of the legality of the case,
has been cha-1 len ec��y Mr . Rf�o a and is Fei .
the Suvreme ourt. y
In view of the fact that the City held in Reso-
lution 8S1 that the existing easements are "in-
valid" and are a subdivision of 141n Bohns Point
Vow, why wouldn't the Council wait for a final
decision on this matter as rendered by the Supreme
Court:'
6) The City of Orono is unilaterally breakiinga
contract tTiat exists between me and the City
of Orono.
Mayor Wm. Brad Van Nest July 8, 1980
Page 5
Judge Nicholson, who ruled that Resolution 851
was valid, made several errors in his judgment.
One of these errors wa3, as he stated, "The
easements over the Becker and Rhode properties
were granted without Orono Council approval and
are of dubious validi*y" (Paragraph 23, page 4).
It is my understanding that Mr. Malkerson, attor-
ney for the City of Orono, approached my attorney,
Mr. Rice, and stated "Was there any way that
Becker would drop his appeal to the Supreme
Court?" Making a long story short, I agreed to
drop my appeal if the City of Orono stated in
writing that Mr. Rhode could not build unless
and until the easements, which the City of Orono
and Judge Nicholson declared invalid, were ex-
tinguished. The City agreed to this, as I under-
stand it, and I subsequently dropped my appeal
to the Supreme Court. Apparently, now the ity
of Orono feels t},at it was mistaken in ter. ng
the easements "invalid." I think the City C�uncil
should reflect long and hard on the .thical and
legal question of offering something to Mr. Becker
for which it received something in return a . then,
subsequently, "taking back" what it gave t yr.
Becker in exchar e for consideration, names,, the
dropping of a 1-wsuit. The Council should also
reflect on the fact that if it unilaterally breaks
its covenant with me, [ am no longer impeded from
seeking redress in the courts. I believe the
City of Orono made a "good faith" contract with
me for which it received consideration, and that
breaking this contract would be illegal.
i) Mr. S►+
on presented
to the
Council on 6-30-80
t e ar
;.J,.e.1t that the
Lauers
were all in favor of
* e new
locatir, or the
-Rhode
house.
Mr Rhode and Mr. Swenson are proposing o moxe
the Rhode house toward the lake and awa; from
the Lauer Ouse. Obviously, the Lauers gain ;n
the value to their own home in direct proportion
to the distance that the Rhode home is from the
Lauer hone. Conversely, the further away the
house is from the Lau^rs, zhe more it adversely•
affects the value of the Becker home. 11so, the
Mayor Win. Brad Van Nest July 8, 1980
Page 6
Council, in deference to the Lauers, has stipu-
lated that the carriage house must 5e torn down.
This carriage house, which is located close by
the Lauer's house, will, upon its elimination,
further improve the value of the Lauer's house.
It should be clear, therefore, that this is not
a case of the Lauers being "nice people" and the
Beckers being "bad people." It is a question of
"Whose ox is being gored?" By placing the Rhode
house close by the Beckers' house on a substandard
lot, it will decrease the value of the Becker
house, as testified to by three different people
on three different occasions. By removing the
carriage house and placing the Rhode house at a
distance from the Lauer house, the value of the
Lauer house goes up. The Council s,iould examine
its conscience on this issue alone. Should this
matter go to court again, I intend to pursue the
issue of whether the dealings with the Lauers
and the Beckers have been at "arm's length."
8) The Council is i norin�, its own Code and rulin
as stated in Resolution 851, Paragraph 1)1 .
This paragraph states that the existing easements
are an illegal subdivision of the Rhode lot.
For this reason, the Council decided that Rhode
must extinguish these easements before he has a
"buildable lot." My lawyer and I have argued
continuously and without interruption that the
easements are legal and that, therefore, the lot
has been subdivided, is a multiple -use lot, and
is, by Orono's own definition, an "out lot." It
would be used by no less than three families --
Rhode plus the two easement holders --and any
friends of the easement holders who were invited
by the easement holders to swim, loathe, or boat
on the SS feet of beach and docks granted by
the easement. That the City of Orono would
overlook the damage to the Becker property by
the multiple use of the lot is unprecedented
in the history of Orono. (I have researched
this matter by reading the iiinutes of all Council
and Commission meetin the past four years.)
Since the City, in s own resolution (8sl)
Mayor Wm. Brad Van Nest Jul), 8, 1980
Page 7
states that the easements are a subdivision of
the land, and since the City is now leaning
toward accepting the lower court's decision
that the easements are valid, then this proves
beyond a reasonable doubt that we are, in fact
dealing with subdivided land. The square foot-
age of the easements must be calculated and
deducted from the square feet cf the remaining
lot at 1410 Bohns Point Road to determine the
actual size of the lot. Furthermore, the ease-
ments cannot be included in determining the set-
backs from the f-ont and sides of the lot. In
other words, Mr. Rhode must build ttn feet from
the easement boundary, not ten feet from the
lot boundary. Most importantly, it is nix ' con-
tention that Mr. Rhode should not be allowed to
build at all because of the fact that it is a
multiple -use lct, it is a substandard lot, and
is virtually an out lot.
9) The Council is ignoring the Code provision
(Sec. 32.340) which states: "No variance shall
be granted to which the use of the property is
extended or changed beyond the use permitted in
the Zrning Code." The property's intended use
is single-family housing (one), whereas the lot
is of use to two other families as a beach and
dock area via granted easements.
10) Mr. Swenson stated that the fact that there are
two people diiving ,over a segment of my property
in order to get to t eir garages pro%ad that I
have easements on my pruperty n therefore,
that the easeml-nt-_on the Rhode property should
not be an issue.
First, I did not create these roadway easements --
they were created by Mr. Lauer who, at one time,
owned all the property. These easements allow
Mr. Lauer to get to his garage by driving over the
westerly segment of my property, and allows Mr.
Campion to reach his garage which is west of my
property. (Mr. Campion has since built another
driveway directly from North Shore Drive into his
Mayor Wm. Brad Van Nest July 8, 1980
Page 8
garage so he rarely uses this easement.) The
main point, however, is that the fact that I
purchased a house which had driveway easements
is irrelevant to whether a house should be built
on the Rhode property. First cf all, I am not
asking for a variance to build a house. Secondly,
these are not easements to the fake and do not
create a "mini -marina." Thirdly, these ease-
ments do not ;pass within sixteen feet of my
house or anyone else's house as do the walkway
easements to the lake on the Rhode property.
And, lastly, no one has challenged the validity
of the easements on my property.
11) Resolution 851 represents at least three instai,ces
of deliberate misstatements of ract:
a. Paragraph 2a, as drafted by Mr. Rhode's
counsel, says that because of soil con-
ditions and deleterious effect on property
1.alues, Mr. Rhode cannot be required to put
the house where the Code says it should be.
Soil tests claimed by Mr. Rhode before the
Planning Commission and Council were never
undertaken. Soil tests taken by a reputable
firm (braun),at my expense, can just as
easily be located in the vicinity of the
carriage house. Placing the home further
back does not adversely affect anyone's
value since it replaces a ramshackle structures --
the carriage house --with a new residence.
b. Paragraph 24C says there will be no fire
danger from the Rhode house (26 feet from
Becker's). I believe an expert witness
v ould refute this.
C. Paragraph 21(b)(3) states that Rogers did
not have an equitable .interest in Rhode's
lot while he owned 3145 North Shore Drive.
This is untrue. Rogers had his brother buy
1410 Bohns Point Road from Cutshalls (i.e.,
Purchase Contract) before I took title to
Rogers' house at. 3145 North Shore Drive.
Mayor Wm. Brad Van Nest July 8, 1980
Page 9
A survey dated 9-3-74--a week before I took
title -to 3145 North Shore Drive --shows Fred
Rogers moved the easements from 3145 North
Shore Drive to 1410 Bohns Point Road. He
could not have done this if he did not
control both properties.
d. Paragraphs 24(b) and (e) state that building
a house on 1410 Bohns Point Road won't create
overcrowding or materially increased density
or materially increased traffic. The facts
are that (1) there is already too much noise
and traffic in the area resulting from three
easements running on either side of 3145
North Shore Drive, (2) there would be at
least five boats on the two adjacent lots
plus canoes and miscellaneous small craft,
(3) any of the three easement holders, in-
cluding the one given by Duane Hoff before
he moved, can and do invite other families
to use the beach and docks, and (4) the City
of Orono has absolutely way to enforce
covenants which purport to limit (illegally)
the use of these three easements.
e. Paragraph 28D(1) states the easements are
"invalid" (as stated by Mr. Rhode's counsel
to counter Mr. Malkerson's objection to
granting a variance to a lot with easements)
since this would make the lot a subdivided
one. Having been "subdivided" the lot would
no longer be a legal building lot. Mr.
Malkerson's acceptance of Mr. Swenson's
characterization of the easements as "invalid"
rescued him from facing up to the subdivision
and out lot problems. that Mr. Malkerson
would state that these easements (and ;. �-
sumably all lake easements) are illegal
subdivisions and the casements t mselves
sf''nvaITiT 'is a gross bending of fact since,
as the courts have verified, the easements
are valid. 'There is nothing in the Orono
Code, Mr. Malkerson's comments notwith,;tand-
ing, to even sugges* that the easements are
invalid.
Mayor Wm. Brad Van Nest
July 8, 1980
Page 10
12) One June 30, before the Council, Mr. Swenson
quoted Judge Nicholson as saying tat ec er
created the easements."
This is a misstatement of fact. Judge Nicholson,
in his final ruling dated 10-5-78, said "These
easements were created over the Rhode property
by Fred Rogers."
I would hope that the City Council, exercising an
even hand in fairness to all, would agree with these
conclusions:
I. In view of the substantial revisions to Resolution
851 being proposeJ_6y Mr. Rhode, and in view of
the Code which clearly indicates that a revised
resolution would be a new variance, and recog-
nizing the Council's own language (Resolution
851, Section II, Paragraph 4) which terms the
variance invalid through nonperformance, a new
variance should be offered and should be reviewed
in full by the City Planning Commission and the
City Council. This is, as Mr. Olson states, the
"City's standard procedure." Failure on the part
of the Cit, to approach this matter in an ethical,
even- an a way will, unquestionably, result in
having to escalate the point of Vision to the
courts again. I think the Council members should
e held responsible for any discriminatory action
which results in a loss of value on my property.
In this regard, I expect the Council to be guided
by its practice as well as by its Code which has
always been to put variances before the Commission
without restrictions.
II. 1 believe that now that Mr. Rhode cannot live
within the provisions of the resolution, it is
only fair that a variance be denied. Why should
the City "automatically" revise the variance
regardless of circumstances so that Rhode can
build? Three years ago the Council said that the
easements were a barrier to granting a variance
because they constituted an illegal subdivision.
Now that the lower court states they are legal,
Mayor Wm. Brad Van Nest
July 8, 1980
Page 11
don't we have a subdivision? And, as a legal
subdivision, how can a variance be granted?
How can the area of the easements be included
in calculating the size of Rhode's lot? The
"facts"are that the lot is substandard in width
and size; that a number of families are using
the lot, making it a multiple -use lot; and that
the value of the Becker house will be adversely
affected by placing a home in close proximity
(26 feet away). Historically, when there have
been a number of conditions which make a lot a
multiple -use or out lot, and when a neighbor
who is affected objects, the Council has re-
fused a variance. Why is that practice not being
continued in this instance? In this same regard,
the neighbor on the other side of 314S North
Shore Drive has apparently granted some kind
of easement to the brick home directly behind
mine since there is now an enlarged dock with
two boats on that narrow lot (less than 100 feet)
and one of the boats is for a Nome without lake
access which requires the neighbors and their
friends to walk across the lot adjacent to mine
on the other side from Rhode's lot. This means
that there are at least three easements immedi-
ately adjacent to my lot, and at least five
families (plus friends) using the two lots on
either side of me fronting on Lake Minnetonka.
I11. I have always said that in my attempt to be fair
to Mr. Rhode, I would accept a variance to 1410
Bohns Point Road n•oviding the City stipulated
that Rhode's houst must be built in the approxi-
mate same area as the carriage house. This de-
cision, which I believe ►.•ould be fair to all parties
including the Lauers, Beckers, easement holders,
and Rhode, is the only solution I can think of
to a problem which is complex, at best. Soil
tests and statements by an impartial architect
in court prove that there is no reason why Rhode
cannot erect a house in the vicinity of the
carriage house. No one would be hurt by such a
decision since it would place a modern house on
the site of a run-down carriage house.
"Ours truly,
JCB:bbb
cc: Thomas M. Maverle
Faegre 6 Benson
from the desk of
• JAB RECKER
0
r
ri Iri�
y
TREETER
ANDRI'S
REALTORS
April 26, 1978
17717 HIGHWAY 7, MINNETONKA, MINNESOTA 66343, PHONE i612) 474-5291
Mr. and Mrs. Jason Becker
3145 North Shore Drive
Wayzata, ?Minnesota 55391
JUL It 1980
Re: Appraisal of residence located at 3145 North Shore Drive.
Dear Mr. and Mrs. Becker:
At your request, I have completed an analysis and investigation
of the above captioned real estate for the purpose of appraising
the market value of the land and the improvements thereon.
Based upon my research and investigation, my experience as a
Realtor and real estate appraiser, it is my opinion that the
above captioned property has a market value as of April 20,
1978, as follows:
BEFORE CONSTRUCTION ON RODDY PROPERTY . . . . . . $210,000.00
AFTER CONSTRUCTION ON RODDY PROPERTY . . . . . . $203,500.00
I have personally inspected this property and have assembled
and considered pertinent data, much of which is used as a test
against my judgement. Information has been gathered from what
we are confident are reliable sources and has been verified
for accuracy as far as possible.
I have no present or contemplated interest in the property
under appraisal nor is my fee contingent in any manner upon the
value reported.
RespI7tfully submitted,
w '1
Gerald R. Helg en
ApprA1ser
GRIi/11
COMMERCIAL/INDUSTRIAL DIVISIOQI
Ind —Guar MemOersn,p Souefr of indistris, Realtors • C&,I,f*d Commtruel i Ir+ves•me��t Mempersn.F N�troryl Aee[Yrel�o^
of Reelio-% • M,nnesmfa Commeresl Mu1110e Listing Sery KY • Independent Few Appre.se,s Assoctown
JASON C. DECKER
2700 WHITE OAK CIRCLE
LONG LAKE. PIINNEBOTA 55358
July 14, 1980
Ms. Jean Mabusth
City of Orono
P. 0. Box 66
Crystal Bay, Minnesota 55323
Dear Ms. Mabusth:
D r
four
U
CITY, OF ORONO
I would appreciate your notifying the
following individual of any Council meet-
ings or Planning Commission meetings per-
taining to property adjacent to 3145 North
Shore Drive:
Mr. John Busse
31,15 North Shore Drive
Wayzata, Minnesota 55391
This is as a courtesy to Mr. Busse who will
ultimately ae the fee owner of 3145 North
Shore Drive.
Yours truly,
JCB:bbb
cc: his. Alberta Strom
)Oki I
TO: Planning CoIri ssion
FROM: Alan P. Olson, Village Planner
DATE: July 16, 1980
rlU (deY
SUBJECT: 0546 Variance - Jack Rhode, 1410 Bonns Point Roar:
This application is an amendment and renewal of Ttem 210 approved by
the City Council on November 14, 1977. Due to litic:ation, and perhaps
other factors, the variance conditions were never acreed to by Mr. Rhode
(no signature on Resolution #t851) and construction has never co7,anenced.
Staff is treating Item #546 as a new application because of the time
lapse and because this proposal is for a redesigned house, with a request
to change the previously determined lakeshore setback line.
Council heard the mattrr on June 30, 1980 and re`erred it to the P'_::rining
Commission for fact finding on those changes from the plan approved in
1977, which changes include:
1. Lake setback line: determined as line D to D to C in 1977, proposed
as line D to D in 1980. Compare Fxl-ibiis 3 & S.
2. Hardcover: 1977 hardcover, inclu6ing driveway, was 6,500 s.f.
1980 hardcover proposed is 8,300 s.f. In 19 ". a gravel driveway
was proposed and was not at that time cons' to be hardcover,
therefore no hardcover variance vas require( -e Exhibit 17C.
Today, gravel 'rives are considered ;ardcove plying this
determination, 3n 8% hardcover vari -ice woalc been required
in 1977. This. compares to a 17�% •roriance pe: ibit 3. The
Council expects a recommendation for their Jul. 1980 meeting.
A cabin existed on this lot until 1974 or 1975. Vie remains were not
completely removed until aftar Mr. Rhode's purchase in 1976.
A lot area and lot width variance was approved in October, 1974 for
Fred RooErs "subject to no other var>ances, removal of the cabin
and removal .,f the (still existent) carriage house". It expired.
A renewal request (079) by Rogers in 1975 was te'lled pending completion
of the cabin demolition which ha7 been leFt half done. Tt aprA '_-ation
was never completed.
Rhode purchased the lot and applied for a lot area and lot width variance
(#t210) in 1976. The first request would have built a house at the 75 ft.
setback line all across the lot. Neighbor Becker objected and lobbied
for no variance or for p'.acinq the heJuse Lehind a 1 inc shc_•wn as A - A
on the new Plan, Exhibit 3 (6 Exhibit !0.
July 16, 1980
Jack Rhode (r546)
1410 Bohns Point Road
VARIANCE
Page 2
Most discussion recarded how close the house could be placed toward
the lake in relation to Section 34.201 relating to average '_akeshore
setback. Line A - A Has drawn between the Lauer & Recker houses with
Becker saying all construction should be behind that line. Line B - B
represents the 75 ft. setback line with Rhode initially requesting
construction to that point. Line C - C was a line drawn mlc4:ay between
lines A - A and B - B. Line D - D represents an extension of the front
line of the Becker house.
The Planning Commission recommended house placement behind line D - D
in August, 1977. See Exhibit 17. The Council c(-ntinued to review the
situation and eventually drew in line C - C as a compromise.
The final building nvelope approved by Resolution No. 851 is shown on
Exhil)its 8 & 9, wi the lakeshore setback bein. line C - C except
where the corner was cut off to preclude any construction in front of
line D - D. See Resolution No. 851, Exhibit 7, for the findings,
conclusions and conditions.
Additional concerns were raised regarding walkway easements across
this lot in favor of two properties to the rear which provided lake
access and dock rights. Becker contends these constitute a mult;ple
use of the property and therefore preclude residential construction.
See Resolution No. 851 and Judge Nicholson's findinos, Exhibit 14.
NOTE: On June 30, 1980, the Council specifically .irected the Planning
Commissiun not to reco cider this issue as there has beer. no
chance in status since 1977.
This proposal is to renew the lot width and lot area variances previously
approved, and proposes to locate the lakeshore setback position as line
D - D. Modifications to Resolution No. 851 are succ_este? by Rhode in
Exhibit 15 which would affect this chance and would also provide for
contin-ied use of the walkway easements and docks subject to annual joint
use dock licensing as required for more than two users of any dock.
This application also requires review of three other -•ar�.ances not applied
for nor previously reviewed:
1. The plan indicates the deck encroaching at one corner to within
72 feet of the shoreline contrary to Section 34.202. There is
no apparent hardship and no reason wh} the plan cannot be changed
to eliminate this encroachment.
J1.11Y � 980
Jack ..ode (# 546
1410 Fsuhns Pint -)c
VARIANCE
Page 3
2. The plan indicates an open parking space
Becker property line encroaching both the
(yard area) for parking, Section 38.201,
easement. There should be no reason why
f f _
�� pia, .•
within 5 feet of the
required 1G foot setback
and the 10 foot walkway
this can not be eliminated.
3. The plan proposed is for a larger house than that proposed in
Item 210. This plan requires a 17.5% variance for 3,414 s.f. too
much hardcover within the 75-250 ft. setback area. No hardcover
valance was dered in Roger's applications. Sep Exhibit 17C
for thr Planning .aimissi•.-r's _ '7 hardcover rev'rw of the first
Rhode ar.elication. This int s i,ot clearly made in Resolution
No. 851, although the fi. dcterm ration in finding 14 was identica
with the Planning Commission's posiLior,.
The 1980 ,filar, increases the house ai-e and jl,eral1 hardcover 1, 850 s. f .
more than the 1977 plan. If that mur !) •,-er were removed from the
current plan, then , he r -dc �r varian-ic situai*._on would be the ar-e
a-- it was in 1977. In a.._ cisr., a hardship should be demonstra`ed in
order to gran r any vz-s'i 3nc.e .
Rhode argue or a quack "renews'_" of variances iss-ied in 1977 per
suggested amEndmer,ts to Re3olutior No. 851; see Exhibit 15.
Becker ..as sc, ld his 'rouse on a cony ra- , b.i+ c, int'. r ies to argue
residence or for one located behind t._ne A - +. see his pcsitr i
Fxhibit 16.
s r',gr_est Planning Commission mer'b—s ro-: j -w tr,- ;e :,istory for
background and i,oncentrate dir^u= ;n on the , inz_,rmati n prov Jed
with this appitc3tion.
1. I recommend a f _nr., 'Ig tnat r.,m,:,%ehensive plans, --)n ord nances
and health c.onsi ,_ions such as sewer and ;nearby lot dctielcpme rt
have or have nc _ chanq A sir ^e 1977. of , then the .re should be
no change in the buildabi' i ' ct .3 of ,e lot.. From: my vant.acte
as planner, I know of n�- ch. .ue .
2. 1 recommend a f itidinq -hat the new plan doe- dor.4 conorm tL
the 73 foot t..,A shore setback.
recommend a jading that the new plan does or does not cor.i orn co
,he 10 root de and 30 foot rear ,'a.-d setfacws of tht, LF.-1P di. tr;rt.
July 16, 1980
.Tack Rhode ( # 54 6 )
1410 Bohn- Point Road
VARIANCE
Page 5
d) Approve Plan $546 as far as lake setback line (D - D) but require
redesign for no hardc(-t•er variarce (this would be less hardcover
than 1977); or
e) Revert to approval cf lake setback l in . D - ., to C as per
Resolution No. 851; or
f) Require redesign for a lake _setback ine of A - A.
July 16, 1980
Jack Rhode (#546)
1410 Bohns Point Road
VARIANCE
Page 4
4. I recommend a finding concerning the purpose of the average lakeshore
setback provision: of Section 34.202:
a) Is this provision intended to protect the views of the neighbors
toward the lake?
b) Is this provision intended to protect the views of the ,.ew building
toward the lake?
c) Is this provision intended to provide a uniform appearance from
the lake?
d) Is this provision related to storm water filtration and natural
vegetation preservation.
5. Based upon the answers to question 4, which setback line conforms to
the intent of Section 34.202 protecting the interest of all concerned
parties?
a)
line
A
- A
betwee the Becker and Lauer 1,ouses
b)
line
B
- B
at the 75 foot setback
c)
line
C
- C
midway between A & B
d)
line
D
- D
as a projection, of the front of the Becker house
e) line D - D - C as per Resolution No. 852.
�. I reenmmen' findings pertaining to hardcc ..
a) Does the `inal plan have more or less ;-Ardcover tha.i the , "17 F-,.an?
b) What hardship justifies a hardcover variai,re?
7. The final recommendation should be to:
a) Approve Plan 0546 as submitted; or
b) Approve Plan #546 less deck and parking encroachments; or
c) Approve Plan #546 less deck and parking encroachment, but
to the extent of no more hardcover than the 1977 plan; or
MINUTES OF A PLANNING COMMISSI;)N t•]EETING HELD ON JULY 21, 1980 - PAGE 3
Mabusth reviewed the subdivision for the Commission
because of the lengthy time lapse since this body
recommended preliminary approval. Adams questioned
the logic behind not requiring a park dedication fee
for a newly created residential lot - wouldn't a new
residential lot result in an additional burden on the
City park system? Mabusth stated that since a major
portion of the land involved in the subdivision was
donated to the State for nature purposes, Council had
waived the normal park fee
WOLSFELD LAKE CO.
Brown Rd & Cty R
FINAL SU14DIVISIO
(#456)
Frahm moved to reco•T^nd approval of the Wolsfeld Lake
Company's plat sul to the findings and conditions
cited in the staff r, olution prepared for this meeting.
Motion seconded by Adams. Vote: Ayes (5), Nays (0).
Motion passed unanimously.
Jack Rhode and James Swenson were present. There
were no other persons present to address this
application. Staff note., for the record that Mr.
Becker, Mr. Busse and all others on the Property
Owners list had been notified of this PC meeting
by mail, and that this date of review was publicly
announced at the June 30, 1980 Council meeting.
Swen��-.n presented to the Commission a revised site
plan that he observed was a direct result of a
conversation with the City Planner. Olson advised
hirr, that the or gi; " Aan submitted with this
application would rek ....-e a lakeshore setback and a
side yard setback variance and a major harp-)ver
variance of 17h8.
Swenson reviewed the new plan noting all setback
problems have been corrected and that the hardcover
has been reduced to an even lesser extent than the
plan submitted in 1977. Frahm confirmed that the
hardcover appeared to be 3% over the allowed 25% -
the 1977 site plan would have required an 8% variance.
Hammerel asked staff to review the policy of the City
in regaras to gravel driveways and hardcover. Mabusth
noted in 1977, the City's policy was to not consider
gravel areas as hardcover and as sult the original
application did not require a ha- er variance. Since
then, policy has changed to so ir. Je gravel driveways
as hardcover. Today, a review of the 1977 application
would require a hardcover variance of 8%.
JACK RHODE
1410 Bohns Pt. Rd.
VA
#546)
Swenson; called attention to Judge Nicholson's review of
the intent of the overage lakeshore setback provision of
Section 34.202 of the Orono Code. He reviewed the origins
of the four designated setback lines A-D and noted that
only two of those lines applied to the review of this
application: B, the lakeshore setback line and D, a line
designating the front line of the Becker house as
extended across the Phode property.
MINUTES OF A PLANNING C01MMISSION MEETING HELD ON JULY 21, 1980 - PAGE 4
Jabbour added that the Lauers have written a letter JACK RHODE
stating no objection to the location of the house 1410 Bohns Pt. Rd.
on the site and based on Nicholson's review it is VARIANCE
the neighbor to the north that we must protect. (#546) Cont.
Swenson noted t' t one of the findings of fact
cited by Nichols was that Line D was determined
to not impair the view of the lake from the
Becker house.
Planning Commission agreed that Line D appeared to
protect the interests of both property owners by
not impairing t:,eir views and by allowing the
applicant to construct a house comparable in value
to his neighbors.
Frahm questioned the 8' high deck extending 5' beyond
the D line. According to the Zoning Code this deck
would be considered a structure and subject to setback
requirements.
Planning Commission reviewed the front line of the
Becker house and noted that pertions of the main
structure extend beyond the D line. Mabusth was
asked how she would determine the lakeshore setback
for the Becker house. S:;e stated that a measurement
would be taken of a line drawn from that portion of
the house extending the fartr.est into the setback
area. The D line took into consideration the view
from the side windows of that lakeshore extension
on the Becker house. Planning Commission doubted
whether the 5' extension of' Rhode's deck given the
natural screening would interfere with the Becker
view of the lake.
Adamd moved to recommend aFprox-al of plar, #546, per
revised plan received at mfsetinq July 21, 1980,
designating line D as the setback line, limiting
hardcover to 3% variance and further finding that
8' high deck extending 5' beyond the D line not
require a variance because the Becker house extends
more than 5' beyond the D line. The Planning
Commission based their recommendation on the following
findings:
1. We find that comprerensive plans, zoning ordinances
and health considerations such as sewer and nearby lot
development have not chsnged since 1977. Therefore,
there is no change in the buildability ;thus of the lot.
MINU`1'ES OF A PLANNING COMMISSION MEETING HELD ON JULY 21, 1980 - PAGE 5
2. We find that th• new plan does conform to
the 75 foot lakeshore setback.
3. lie find that the new plan does conform to the
10 foot side and 30 foot rear yard setbacks of the
LR-lB district.
4. Ile make the following findings concerning the
purpose of the average Lakeshore setback provisions
of Section 34.202:
a) to protect the views of the neighbors toward
the lake.
b) to protect the views of the new building
towar! the lake.
Motion seconded by McDonald. Vote: Ayes (5),
Nays (0). Motion passed unanimously.
Donald Nelson was present. Mabusth reviewed the
variance application noting that originally the
application was to cover the Nelson's request to
extend a portion approximately 6' into the 75'
setback area. The reviewing process disclosed
the need for a hardcover variance for the entire
patio area being constructed.
Planning Commission reviewed the unique hardship
condition of this property. The lot is the low
point of the Walters Port neighborhood. The
steep slopes of the adjacent properties create
severe drainage problems in heavy rains. Nelson
notes the water rushes down the slopes like a
river and seems to collect to the east of the
house. The majority of the runoff disappears withir,
minutes, but in a wet season the east side of the
property will have standing water. The east portion
of the lot, adjacent to the Reese property, is the
principal retention area on the property.
The applicant stated that all outdoor activities on
a property like this must be limited to a paved area.
The request to extend into that specific section of
the lakeshore setback area was an attempt to gain
adc !.onal sunlight. The only sunlight for the
property comes in the late afternoon and does not
,:nte nd to the rear of the house.
The new patio, approximately 80' Y 201, 1,600 s.f.,
replaces an old pa,_io area of 324 s.f. The existing
hardcover on thk- itoperty was already 3% in excess
of hardcover.
JACK RHODE
1410 Bohns Pt. Rd.
VARIANCE
(#546) Cont.
DONALD NELSON
2705 Walters Pt.
VARIANCE
(#572)
Ln
TO: Council #546
FROM: Alan P. Olson, Village Planner
DATE: July 24, 1980
SUBJECT: #546 Jack Rhode, 1410 Bohns Point Road - VARIANCE
Planni , Commission reviewed a revised plan, Exhibit 19 attached;
at thee_ ,luly 2.1, 1980 meeting, as instructed by the Council on
June 30, 1980. Planning Commission reconunended approval of variances
necessary to construct the house per the attached revised plan as
follows:
Lot Area
34.452
13,897
s.f. variance =
32%
Lot Width
34.452
33
ft. variance =
23.5%
Hardcover
34.202
636
s.f. variance =
3%
I concur wiz.. their findings and recommendations with the exception
of the deck encroachment toward the lake, ahead of line D-D. If
this deck was not more than 30 inches above the ground, and not
encroaching within 75' of the lake, I would have no objection.
However, the plan now shows the neck to be 8' above the ground.
As such, I would recommend eith: -omplete conformance to line D-D,
or with issuance of a variance tk 4.201 if a hardship were to be
found.
Telephone 473.7357
CITYof ORONO
Punt Office Box (Oi • Crystal Bay, Minne-ota M323 • Municipal Offices
On the North Shore o/ Lake Minnetonka
July 25, 1980
Mr. Jason Becker
2700 White Oak Circle
Long Lake,
Minnesota 55356
Dear Mr. Becker:
The City Staff has reviewed your lets-r of July 8, 1980 Plea,_;e be
assured that at all times the City Staft and City Council has done
everything it possibly could to grant to you and to all others their
procedural and substantive due process rights and that at all times
we attempt to treat everyone in a fair and equitable manner. We
are sorry to learn from your letter that you think that on some
occasions the City has not done for you what you wish the City would
have done.
k- you know, the application made by Mr. Rhode was referred to the
Planning Commission for discussion at their July 21, 1980 meeting
and thereafter on July 28, 1980 will be reviewed by the City Council
as is required by the City Ordinances.
As before, please feel free to submit any oral or written comments
that you avant at any time to the Planning Commission and City Council
in regards to this application. As you and the applicant have
requested, we will try to review these modifications as fast as
possible so that there need not be long involvement in the review
process by the parties.
If we can help you in any way by providing you with information that
we have in the City ,staff files concerning this application, please
give me a call.
"pry truly yours,
bri P. lson
illagw Planner
r
APO:kh
I
JABON C. BECKER
2700 WHITE OAK CIRCLE
LONG LAKE. MINNEBOTA 55355
July 28, 1980
Mr. Alan P. Olson
Village Planner
City of Orono
P. 0. Box 66
Crystal Bay, MN 55323
Dear Mr. Olson:
rfl 0 �ft,�IFgTT
U11
Jul so
CITY. OF: ORONO
Thank you for taking the time and trouble to acknow-
ledge my letter of July 8, 1980.
It would be very helpful if you could answer the
following questions for me:
1) Was my letter of July 8, 1980, shown to the
Planning Commission and the City Council?
2) Did Mr. Warren Malkerson review my letter of
July 8, 1980?
3) As you know, there were a number of factors
influencing the Council's decision to specify
a location for Mr. Rhode's proposed house.
Such t,ings as location of other homes (Lauer's
and Becker's), the width of the lot, the total
area of the lot, the location of the carriage
house, and the location of the easements were
all factors influencing the decision of the
Planning Commission and ultimately the City
Council in Resolution #851. My question is:
How can the Planning Commission and Council
review only Mr. Rhode's reauest of changing
the house location without reviewing ali of
the relevant factorss meni oned in the previous
sentence?
4) Since Resolution 0851 states that the variance
will be denied and will be considered invalid
unless the conditions of the Resolution are
met, why isn't the variance he',g denied, as
stated in Resolution 0851?
0
Mr. Alan P. Olson
July 28, 1980
Page 2
S) Sin.:e the easements represent a multiple -use
situation and since the easements, according
to the City's own counsel, represent an illegal
subdivision of the lot, how can there be build-
ing on an illegally -subdivided lot?
Thank you in advance for your answers to these
questions.
Yours truly,
JCB:bbb _
J
PE ULAR MEETING OF THE OROIJO COUNCIL, J?1LY 28, 1980
Page 18
fir. Wilbur Anderser S55 Frederick Srreet, was CONDITIONAL USE PE
present and comment ghat the s' ;rtL,e was 2480 Casco Point R
expanded beyond its _.-i.ginal inL ...4 si,,e and that (continued)
the concrete blocks were poorly co,,struc:t_ed.
Mayor Van Nest moved, Butler seconded, to refs: :he
request of Cortlen Cloutier, 2480 Casco Point j4.aci,
for a conditional use j:ermit and variance to tip..
Planning Commission for staff and Commission re,
Motion, Ayes (5) - Nays (0).
Alan Olson, City Planner, entered into the record VARIANCE
the variance .request of Jack Rhode, 1410 Bohns Point has Point
Road, dated July 24, 1980, which states-' $546
c Rhode
Planning Commission reviewed a revised plan, at their
July 21, 1980 meeting, a instructed by the Council
on June 30, 1980. Planning Commission recommended
approval of variances necessary to construct the
house per the attached revised plans as follows:
Lot Area
- 34.452
13,897
sq.
ft. Variance
= 32%
Lot Width
- 34.452
33
ft.
variance
= 23.5%
Hardcover
- 34.202
636
sq.
ft. variar.-^e
- 3%
I concur with their findings and recommer3ations with
the exception of the deck encroachment toward the lake,
ahead of line D-D. If this deck were not more than
30 inches above the ground, and not encroaching within
75' of the lake, I would have no objection. However,
the plan now shows the deck to be 8' above the ground.
As such, I would recommend either com,.)lete conformance
to line D-D, or with issuance of a variance to 34.i01
if. a hardship were to be found.
Council Meeting - July 28, 1980
Counci::,ember Hannah stepped down from the Council table
due to a conflict of interest.
Jack Rhode and James ::wcnson, representing Mr. Rhode,
were present. Margar Han;. v, +;as also present.
Mr. Jame,.., Swenson revieweo ii-s clie;its application
for a variance.
Mayor Van Nest: The City needs an agreement of all
easement holders to include a protective covenant
and dock limitations for eA,.h easement holder in
their chain of title.
Wont i nued )
REGULAR MEETING OF THE ORONO COUNCIL, JULY 28, 1980
Page 19
Mr. Swenson: Mr. Rhode would agree to one dock, VARIANCE
three boats, with the issuance of a building permit 1410 Bohns Point Road
now with the stipulation that no certificate of (Continued)
occupancy would be issued until all conditions are
met.
Mayor Van Nest: I would have trouble justifying
this procedure. It makes' -it more difficult for
the City to enforce.
Mr. Swenson: My client needs to take advant, 01
the present building season.
Mayor Van Nest: You now want us to short circuit
the Court's decision.
Mr. Swenson: The intent of our approval we to
support Orono's position. Our appeal to th,
Supreme Court will take us into the late fall or
early winter.
Mayor Van Nest: The issues are:
1. Conformance to line D-n
2. Protective covenant
I want the record to show that we have no one here
representing the Beckers, I_av--s, or the Stewarts.
Mr. Rhode: The neck will r.•o: �.— eened or enclosed.
Mayor Van Nest: We do have a resolution that should
not be substituted by an agreement. There are concerns
�.th the proposed deck which can be satisfied.
Mayor Van Nest moved, Butler seconded, to modify
Resolution #851 for Council approval. ,Proposed
deck to conform to D-D line and not encroaching
within 75' of the lake. Deck not to be screened or
enclosed; one single dock structure for three boats;
resolution and agreement to be signed off before
issuance of building permit.
Butler oLfered the following amendment: building
permit to be issued 4,nmediately, occupancy certificate
issued subject to i i of ; -reement. Motion died
for lack of a secor
Original motion, passed. Ayes (4) - hays (0).
CITY of ORONO Control No. 546
Font Office Box 66*Crystal bav, Minnesotr 55323*Municipal Offices
Telephone 473.7357
TO: Jack Rhode
1690 Shadywood Road
Wayzata,
Minnesota 55391
Copies to: Swenson, Becker, Busse,
Hannah, Stewart 6 Lauer
Meeting Date
Notice Date
7-28-80
7-30-80
XX Variance
Conditional Use Permit
Subdivision, Preliminary
Subdivision, Final
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COUNCIL ACTION Vote: 4 For o Agains Abstention
MOTION Council conceptually approved you- lot area and lot width variances
per the revised plan received at the July 21, 1980 meeting. Final
approval and conditions will be per a formal resolution to be drafted by
the City Attorney for review by the Council at their August 11, 1980
meeting. Draft copies will be circulated as soon as they are available.
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DEADLINE I)ATE
for submittal of new information (application may be considered
formally withdrawn if information or explanation is noL provided).
for Work Pe —it for work to begin for work to be
application completed
WORK PERMITS ARE REQUIRED - contact Building Inspector before beginning
work.
VARIANCE APPROVAL is limited to the extent shown on approved plans.
Do not change plans. Variance authority expires one year after approval.
COYDITIONAL USE APPROVAL expires upon change of ownership or use,
or on deadline date specified above.
PRELIMINARY SUBDIVISION APPROVAL - Applicant must provide all information
and/or improvements requi-ed for final approval. Contact Zoning
Administrator.
FINAL SUBDIVISION APPROVAL Applicant must have drawings, resolution
and all other required documents recorded, with certification of Ruch
recording returned to the City by deadline date.
Certified copies of official City Council Minutesmaybe ob`t�e—J-by
emsacting the City Clerk. Allow at least three weeks from meeting date.
Telephone 473.7357
n
CITY of ORONO
Post Office Nix Ni • Crystal Bity, Minnesota 5532.3 • Municipal Offices
On the North Shure of ! ake Minnetonka
August 8, 1980
Mr. Jack Rhode
1690 Shadywood Road
Wayzata, Mn. 55391
Re: #546 Variance
Dear Mr. Rhode,
The resolution draft requested by the Council at their
last meeting has not been completed. At this point,
I expect c:iat it will be ready for review within a week
and that it will be scheduled for the City Council meeting
of August 25, 1980.
S incet /7 `r
h Olson
cc: Swenson
Becker
Busse
Hannah
Stewart.
Telephone 473.7357
A
CITY of ORONO
Post Office Box 660Crystal Hav, Minnesota 55323•Municipal Offices
On the North Shure of Lake Minnetonka
August 12, 1980
Mr. Jason Becker
2700 White Oak Circle
Long Lake,
Minnesota 55356
Dear Mr. Becker:
This letter is iii answer to the questions cc,r`ained in your letter
to me dated July 28, 1980.
1. You letter of July 8, 1980 to Mayor Van Nest was included in a
packet of material sent to the Planning Commission and Council
on July 16, 1980, before the Planning Commission meeting of
July 21, 1980.
2. Mr. Bruce Malkerson, City Attorney, receives a packet of all
materials sent to the Council and he was included in the
distribution of your letter as above.
3. I believe that all relevant factors have indeed been reviewed
by the City. Mr. Rhode's application No. 546 was accepted and
considered as a new application, receiving a complete review
as you suggest. In this case, however, the record of his previous
application contains a detailed set of concerns, issues, facts
and findings pp rtaining to this property, many of which have not
changed since 1977. 'Therefore, any emphasis on changes ^ince
that time is merely a reflection of the care taken to review new
information and proposed modifications from previous conditions.
4. Resolution No. B51 did state that certain conditions must be met
before the approval granted therein could be exercised. Any
applicant has a right to request reconsideration of City Council
action, which Mr. Rhode has now done in his current application.
Actually, the question is probably moot anyway because the previous
conditions were not met and the previous approval did expire.
That is why a whole new application was required and why a whole
new application has been reviewed. Many times the City has had
to act upon renewal of expiring or Expired variances because the
applicant, for what ever reason, had been unable to act within
the required time or had considered modifying his original request.
If the original approval expires, there is no need to deny it, and
such expiration or modification is no reason to refuse consideration
of a new request.
August 12, 1980
Mr. Jason Becker
Page 2
5. Judge Nicholson addressed the issue of the walking easements
and whether or not they constituted multiple use o: the property.
He found that it would be possible for the City Council to allow
coexistence of the easements and the Rhode house. The City does
maintain that the easements have not received the required subdivision
approval, but the City has never maintained that the lot iteelf waa
created by an illegal subdivision. In any event, there is nothing
in the Orono ordinances that says an illegal usA or property in,.Yalidates
any other legal property right, but that the City has the authority
to review and regulate all property use for the most general public
benefit.
There may be other facts which a more thorough review of the record will
reveal, but I hope that the above are satisfactory answers to your
questions.
Sincer ly
Olson
Ilage Planner
APO:kh
CITY of ORONO Control No. 546
Punt Office Box 669Crystal Bay, Minnexola 55323 0 Municipal Offices
Meting Date August 25, 1980
Telephone 473-7357 Notice Date August 27, 1980
Mr. Jack Rhode
TO: "
1690 Shadywood Road XX Variance
Wayzata, Conditional Use Permit
Minnesota 55391 Subdivision, Preliminary
Mr. John Busse Subdivision, Final
Copies to: Mr. Gregg Hannah
MMr. Darrell Stewart
COUNCIL ACTION Vote: g_ For n Against Abstention
MOTION Council tabled action on the proposed resolution until the
September 15, 1980 meeting to allow further re -,-Jew by Hannah and to make
several editorial corrections on the draft.
DEADLINE DATE ';eptember 8, 1980
_XX_ for submittal of new information (application may be considered
formally withdrawn if information or explanation is not provided).
for Work Permit for work to begin for work to be
application completed
WORK PERMITS ARE REQUIRED - contact Building Inspector before beginning
work.
VARIANCE APPROVAL is limited to the extent shown on approved plans.
Do not change plans. Variance authority expires one year aft=r approval.
CONDITIONAL USE APPROVAL expires upon change of ownership or use,
or on deadline date specified above.
PRELIF.INARY SUBDIVISION APPROVAL - Applicant must provide all information
and/or improvements required f(�r- final approval. a)ntact Zoning
Administrator.
FINAL. SUBDIVISION APPROVAL - Applicant must have drawings, resolution
and all other required documents recorded, with certification of such
recording returned to the City by deadline date.
Certified copies of official City Council Minutes may be obtained �y
contacting the City Clerk. Allow at least three weeks from meeting date.
/�
TO: Council
FROM: Alan P. Olson, Village Planner
DATE: September 3, 1980
SUBJECT: #546 Jack Rhode, 1410 Bohns Point Road - VARIANCE
Attached are pages from the resolution draft having been corrected
from comments made at the August 25, 1980 meeting, as noted t?n each
page.
I believe Gregg Hannah wishes to further discuss Paragraph D on Page 10.
I would hope Jack Rhode would be willing to sign this resolution at
the September 15, 1980 meeting showing his agreement to the conditions
per #6 on Page 12.
CC: Jack Rhode
City of ORONO
RESOLUTION OF THE CITY COUNCIL
NO.
AMENDING RESOLUTION NO. 851 AND GRANTING
JACK RHODE VARIANCES TO ALLOW CONSTRUCTION
ON THE LOT KNOWN AS 1410 BOHNS POINT ROAD
LEGALLY DrSCRI3ED AS THAT PART OF GOV'T
LOT 1 LYING E OF W 442.93 FT. THEREOF AND
N OF S 1058.3 FT. THEREOF 6 S OF RLS 269
WHEREAS, Jack Rhode applied in 1976 for variances to allow
for the construction of a single family residential home on his lot
commonly known as 1410 Bohns Point Road, and has now reapplied for
the same variances and for amendment to Resolution No. 851; and
WHEREAS, Jason Becker and William 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, the
Planning Commission and City Council have raised at different times
numerous facts an3 legal questions concerning the application for
variances; and
WHEREAS, the Planning Commission, City Council and City
staff studied the first application at length, including the testimony
and memoranda previously submitted by Mr. Rhode and his attorne s� -w- �`l.�M
James T. Swenson, Esq., and Lorens Q. Brynestad, Esq., and the material
submitted by Mr. Jason Becker and his attorney, Jerry Rice, Esq.; and
kHEREAS, the Planning -'ommiss:on, City Council and City staff
have studied ilh 98 eapplication at length, and have studied all
additional testim , including that of the Gregg S. Hannahs and
Darrell K. Stewart and all additional written material submitted by
Rhode, Becker and Lauer; and
WHEREAS, the City Council has reviewed these applications and
all testimony at City Council meetings held August 8, 1977, August 22, 19771
October 11, 1977, June 30, 1Q30, July 28, 1980 and August 11, 1980; and
WHEREAS, the City Council is charged with the responsibility
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,
PAGE
City of ORONO
RESOLUTION OF THE CITY COUNCIL
NO.
5. The lot is presently served by the public sanitary
sewer system, and has been assessed for such service,
including assessment of one unit charge.
6. The proposed location of the single family dwelling
meets all the stipulated setback requirements of the
Zoning Code -including:
a) 75 ft. minimum setback from the l,akeshore
b) 35 ft. minimum front yard
c) 30 ft. minimum rear yard
d) 10 ft. minimum side yards
7. An existing carriage house, located 24 feet from the
rear lot line, is proposed to be removed prior to
construction of the new house.
B. There are pi :_ently in the chain of title easements
benefiting Darrell K. Stewart and the Gregg S. Hannahs
which purport to provide for a walkway over the lot to
the lake.
9. The easements run over one of the side yards.
a) The easements exclude any driving privileges.
b)
The side yard affected by the easements will remain
'
covered by grass or foilage and ►all corner of
driveway as shown on Exhibit.
c)
There will be no building or other obstruction
in the easement area.
1. The 10 ft. width and location of the easements
is identical to the 10 ft. wide minimum side
yard se�back area.
2. The access to the proposed dwelling in case of
fire will remain the same as if no easement
existed.
3. The light and air within the side yard will
remain the same as if no easement existed.
4. The openness or "open space" of the side yard
will remain the same as if no easement existed.
PAGE I OF 1
City of OR,ONO i
RESOLUTION OF THE CITY COUNCIL
NO.
29. The Ordinances, Comprehensive Plans and practical
situation which existed as of November 14, 1977, when
Resolution No. 851 was passed, has not changed with
respect to the reasons underlying the decision to
grant a lot width and lot area variance or to use line
D to C, as depicted on Exhibit A, as the lakeshore
setback line for the Rhode property.
30. That the part of line D to D to C represented by
"D to C" on Exhibit A to Resolution No. 851 does
not provide any greater protection foc the Bec-ker's
sight line of the lake than "D to D" extended all
the way across the Rhode property.
31. Line D to D, extended all the way across the Rhode
property, protects the Becker's sight line or view
of the lake. (See Finding No. 11 herein.)
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 ensure 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 tocated on the lot, there may not
be at any time more thanNthree watercraft, as defined by
Regulation 3.01, Subd. 13.of LMCD Regulations, either
docked, moored or stored.
d.clCx �` pYf �Ec �'TED
(b..4s. or
PAS;E 0F ��
City of ORONO
Vim RESOLUTION OF THE CITY COUNCIL
NO.
G. The three watercraft allowed pursuant to this Resolution
may be owned only by Rhode,
o I- subject property 1,egallyMde:�criba&-ia..the_r; le.
this reS�lj,pn, or the two present easement holders,
Gregg Hannah and Darrell Stewart, or their successors in
title to property legally described as Tract I, R: 269
and combined Tracts G & H, RLS 269 respectively.
ii. This resolution does not grant anv continuing or vested
right in Rhode or the present or future easement holders
to maintain or utilize the clock except in compliance with
the terms and conditions of the annual license and all
other applicable City or LMCD ordinances.
II. GRANTING THE VARIANCES
Based upon the above findings of fact and contingent upon
specifically those items as noted in Paragraphs A through H,
the City Council ('" the City of Orono grants the following
variances:
1. A variance to Section 34.452 as to lot size and width
with respect to the lot commonly known as 1410 Bohns
Point Road.
2. A variance to Section 34.202 as to maximiun permitted
hardcover to the extent of 3% such that no more than
5,520 s.f. of hardcover consisting of house, driveway,
sidewalk, deck, patio or any other impermeable surface
may be erected or maintained on this lot, and that all
such hardcover shall be located beyond 75 ft. from the
sh,)reline of Lake Minnetonka.
3. An interpretation that lin(- D-D as designated on Exhibit
A constitutes the average lakeshore setback line of
Section 34.201 which line protects the lakeshore views
from the Becker house.
(A) That the Rhode house and all appurtenances thereto
be constructed entirely behind line D-D, being no
closer to the lakeshore than line D-D, except as
follows:
1. An open, unscreened, unroofed, uner,,:losed
balcony as shown on Exhibit A, not to exceed
30 ft. long, 5 ft. wide or 150 sq. ft. in area,
may encroach ahead of line D-D a distance not
to exceed 5 ft. from line D-D.
PAGE _._1`OF - /_-,
REGULAR ME:E:TING OF THE ORONO COUNCIL, SEPTEMBE:R 15, 1980 llacle 3
Mr. Hannah entered into the record a survey clone VARIANCE
in 1974 showing the easement that ran with the 1410 Bohns Point Road
property. tie also informed the Council that he (Continued)
was not aware of Resolution #851 until six months
after adoption.
Mr. Swenson, Jack Rhode's attorney, was also present.
He informed the City Council that he was not aware
of the amended resolution and needed more time to
review it.
Paurus moved, Mayor Van Nest seconded, to table
this application until the next Council meeting.
Motion, Ayes (4) - Nays (0).
Mr. Orton Wisegarver, Keller's Market, was present
to discuss his application.
Discussi.,n centered around the non -conforming use
status of the property for the former owner and the
present expansion of the property by Mr. Wisegarver.
Numerous violations of the present owner were
reviewed by the City Council.
Mayor Van Nest moved, Butler seconded, to table the
application for Orton Wisegarver, Keller's Market,
until the next Council meeting in order for Mr. Wise-
garver to prepare more information. Motion,
Ayes (5) - Nays (0).
CONDITIONAL USE PERMI
3800 Wayzata Blvd.
Keller's Market
Mrs. Donald Nelson, 2705 Walters Port Lane, was present
concerning her variance application.
Butler moved, Paurus seconded, to adopt Resolution RESO:UTION #1199
#1199, A Resolution Acting On Hardcover Variances 2705 Walters fort Lan
For Donald Nelson, 2705 Walters Port Lane. Motion,
Ayes (5) - Nays (0).
Mr. Robert Nortenson was present to discuss his CONDITIONAL USE PERMIT
application for a conditional use permit for a 3280 Watertown Road
greenhouse at 3280 Watertown Road. 0572
Robert Mortenson
Several neighbors from the area were present to
discuss their opposition to the greenhouse stating
that a business in the area would -!reate more
traffic problems, it would have a deleterious
ef'ect on the neighborhood, and that it wlrs a
commercial business not a hobby.
Mayor Van Nest moved, Paurun secs —,led, to table
the conditional use permit request of Rotxart
Mortenson for a greenhouse at 3290 Watertown ;toad
r.,r two weeks for rvvie w �,f the infurmat ion presented.
Pkition, Ayes (5) - Nayra (1)1.
tEGULXR MEETING OE' THE: ORONO COUNCIL, SEPTEMBE:R 15, 1980 page 2
Butler moved, Hurr seconded, to approve the MINUTES*
Minutes of the Federal Rev,--nue Sharing Public August 27, 1980
Hearing of August 27, 1980. Motion, Ayes (5) -
Nay€s (0) .
Butler moved, Hurr seconded, to approve: the:
Minutes of the public information meaetiny of
September 4, 1980. Motion, Ayes (5) - Nays (0).
Butler moved, Hurr seconded, to approve the
Minutes of the Asscssme.�nt Hearing meeting of
September 8, 1980. *t, ), ion, Aye. s (5) - Nays (0) .
No comments from thus Park Commission.
No comments from the Planninu Commission.
No comt.sents from the Lake Minnetonka Conservation
District Repr.easentative.
Butler moved, Hurr sec .)nded, to approve the: City
of Plymouth's Comprehensive Plan Review.
Motion, Ayes (5) - Nays (0).
Butler moved, Hurr seconded, to approve the City
of Wayzata's Comprehensive Plan Review. Motion,
Ayes (5) - Nays (0).
No cr)mments from the public present.
M I N11TE: *
September 4, 1980
MINUTES*
September d, 1480
PARR COMMISSION
PLANNING COMMISSION
LMCD REPORT
COM?REHENSIVE PLAN*
City of Plyrwjuth
COMPREh NSIVE PLAN*
City of Wayzata
PUBLIC COMMENTS
Councilman Gregg Hannah vacated his seat at the; VARIANCR
Council table to discuses the variance: and resolution 1410 bohns Point NNA
regarding the .lack Rhode property at 1410 Hohns Point
Mr. Hannah sta.'.ed that he has no ob jerct iuns to Mr. khodr.
building !. ' h )uoe can this property but that he would
like to stater his Nasitiun concerning the easement to
the lake. He cummunted that when Fred Rugers, then the
owner of the props rty, se,td a lot to 0ason Becker, Mr. Rogers
moved the easement t�) another lot to accomrwdato Mr. Becker.
Mr. Hannah stated that he was uncomfurtab)v about the
vasument and chocked with than City (,f of ,,no and tlnee Lake-
Minnetonka C'unservat ion i)istr lct ano )xith intotmid him
that there was no Nrulilent with the e:a.
40ontinuesd)
UU
SEP 19 LOM
1-
.t=6at
tti^�
City of ORONO
I f
RESOLUTION OF THE CITY COUNCIL
►' , NO.
D. That a resolution may hereafter be filed in the chain
of title for the lot noting that the City Council hereby
finds as follows:
nn
0 [��JEL, cl�
�Ep 19 1980
06 0'0"'
That the q.<isting easements wh purport to grant
dock ri is and walkway righ to the lake,ar invalid
in th they were y-anted n 1974, and the bdivision
orXerequi.res
ance in effect at at time and to t s point in
ti that an division of land f that size
eluding a divisio for eas-ment purp ses, required
ccnpliance with a subdivision ordi nee of t':e City
of Orono and t se easements did n meet those
requirements
That a dock is an accessory use and must be attached
directly to the rio_arian residential lot it is designed
to serve.
That /actn byXles.',.ore
uncil approving this
varianot t.onstitute pproval of
the jof ton tha lot by anyone,
the jof athat lXe
, or the existence
of thed eo the 1.
XAny joint use of the dock presently and in the future
may be only pursuant to an annual joint use dock
periit as set forth in Chapter 74 of the Orono Municipal
Code.
B. That th granting of private dock rights or 1vate dock
easem is on the lot i not a permittf:d or -onditional
use/n that use district and that any su easements are
in alid under the,,,'City ordinances.
�t 1 P. That .Mr. Rhode must execute, prior to the effective date of
this variance, and in a form approved by the City Attorney,
a document to be filed in his chain of title, which restricts
the use of the property to one dock of not more than 100 feet
in len(jLh, with not more than three watercraft moored at the.
dock in front of the lot, or on the property at any time, and
that all installation or use of said dock shall only be
pursuant to the terms and conditions . ` an annual joint use
dock license and other applicable Cit. -)rdinances regulating
the location, construction and use of .pocks and mooring areas
Rhode and the easement holders shall apply for said license
annually on forms provided by the City and in accordance with
all application requirements and license fees required of
similar joint use dock 1icenc s.
PAGE . 0 OF �} _
A
City of ORONO
7 RESOLUTION OF THE CITY COUNCIL
NO.
CjC) �V' The three watercraft allowed p{irsuant to this Resolution
may be owned only by Rhode or the two present easement
holders, Gregg Hannah and Darrell Stewart, or their
successors in title to property legally described as
Tract I, RLS 269 and Tract Ii, YI,S 269 respectively.
This resolution does not grant any continuing or vested
��►� right in Rhode or the present or f{iture easement holders
to maintain or utilize the dock except in compliance with
the terms and conditions of the annual license and all
other applicable City or IMCD ordinances.
GRANTING THE VARIANCES
Based upon the above findinv:r of fact and contingent upon
specifically those items as noted in Paragraphs A through H,
th(. Ci`y Council of the City of Orono grants the following
variances:
1. A variance to Section 34.452 as to lot size and width
with respect to the lot corrunonly known as 1410 Bohns
Point Road.
A variai, . �ctiun 34.202 as to maximum permitted
hardcover to L,,_ exten'- :uch that no more than
5,520 s. f. of hardcover consisting of h( , ' ivr-
sidewalk, deck, patio -or any ether impermeable surface
may be erected or maintained on this lot, and that all
such hardcover shall be located beyond 75 ft. from the
shoreline of Lake Minnetonka.
3. An interpretation that line. D-D as designated on Exhibit
A constitutes the average lakeshore setback line of
Section 34.201 which line protects the lakeshore views
from the Becker house.
(A) That the Rhode house and all appurtenances thereto
be constructed entirely behind line D-D, being no
closer to the lakeshore than line D-D, except as
follows:
1. An open, unscreened, unroofed, unenclosed
balcony as shown on Exhibit A, not to exceed
30 ft. long, 5 ft. wide or 150 sq. ft. in area,
may encroach ahead of line D-D a distance n-t
to exceed 5 ft. from line D-D.
PAGE 11 OF 13
Cr
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Coll& —
4.06..
IOOLA-
--e--( 14L 4L C
TO: Council
FROM: Alan P. Olson, Village Planner
DATE: October 6, 1980
SUBJECT: #546 Jack Fhode, 1410 Bohns Point Road - VARIANCE
The attached resolution has been amended in response to the concerns
of Mr. Swenson (Rhode) and Mr. Hannah as discussed at the Council
meeting of September 15, 1)80.
A
JS
ell
it/ wee
C1"
l'
City of OR ONO
RESOLUTION OF THE CITY COUNCIL
NO.
A14ENDING RESOLUTION NO. 851 AND GRP.NTING JACK RHODE
VARIANCES TO ALLOW CONSTRUC',"1014 ON THE LOT KN^T•hI AS
1410 BOHNS POINT ROAD LEGALLY DESCRIBED AS TIIAT PART
OF GOV'T LOT 1 LYING E '?F :l 442.93 FT. T11EIREOF AND N
OF S 1058.3 FT. THEREOF S 'r' RLS 26?
WHEREAS, Jack Rhode applied in 1976 for variances to allow
for the construction or a single family residential hoir.e on his lot
commonly known as 1410 Bohns Point Road, and has now reapplied for
the same variances and for amendment to Resolution No. 851; and
WHEREAS, Jason Becker and William Lauer, neighbors who have
property adjacent to that lot, have appeared and expressed concerns
related to the possible construction sites on that lot; ana
WHEREAS, the applicant, the neighbors, City staff, the
Planning Commission 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 City
staff studied the first application at length, including the testimony
and memoranda previously submitted by Mr. Rhode and his attorneys,
James T. Swenson, Esq., any'. Lorens Q. Brynestad, Esq., and the material
submitted by Mr. Jason Hecker and his attor^.2y, Jerry Rice, Esq.; and
WHEREAS, the Planning Commission, City Council and City Staff
have studied the 1980 reapplication at length, and have studied all
additional testimony, including that of t:'.eGregg S. Hannahs and
Darrell K. Stewart and all additional written material submitted by
Rhode, Becker and Lauer; and
WHEREAS, the City Council has re:dewed these applications and
ail testimony at City Council Me,-tings held August 8, 1977, August 22, 1977,
October 11, 1977, June 30, '1980, July 29, 1.980, August 25, 1980,
September 15, 1980 and the date of this s'?_,solution; and
WHEREAS, on Septeml . r 15, 19 d , , S r.2,;g Hannah arse fired before
the Council and entered into record a :opy of a 1974 too..-vey showing
the walkway easements across t'ie subjec_ lot (atta(.hed hereto as Exhibit_ B)
ar.d related details of his involvement witti tht, sub e_-c lot and the
easements located thereon, including st +.- that he and his attorney
na,l called the _z and t.,1_ r.>c ]: .._._ iil. 'I`r of changinq the
casements in 1974, that C,.'_y +.n.d L',.' 3tJte°,: [.,.) objections tJ
tl: ± east r'a :t8, that the L lt! -1i,3 I.,`! _„ )r ,any '?ndorsement,
`c�t'1'1cl1 review, cr approv31 for "-.... is ': 1, and regarding his
la,-k of inv.)l-i-nent with the Ca, nci 1' it +I - t the original Resolution
Oil in 19' and
PASI __Z_CW
City of OR,ONO
RESOLUTION OF THE CITY COUNCIL
NO.-f
WHEREAS, the City Council is charge3 with the responsibility 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; and
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 by City staff, the
City Council grants the variances as noted hereinafter for the following;
reasons:
I. FI-QINGS OF FACT
1. Tnat Jack F.hode's lot, commonly known as 1410 Bohns
Point Road, is a lot of record existing upon
January 1, 1975, under single separate ownership
in an LR-1B use district.
2. A cabin existed on this lot until 1974 or 1975 and
that all remains of the cabin were not removed until
after Rhode acquired the lot in 1976. The cabin had
been located in the northeast corner of the lot,
within 30 feet of the shoreline.
3. The lot does riot meet the minimum requirements of the
Zoning Cod- as to area and width for a single family
dwelling in an LR-13 use district.
a) The lot is 29,660 square feet in area, based upon
the sur-._-y of Gary L. Gabriel, dated April 13, 1980.
b) The lot is 107 feet in width at the rear and 130 feet
in width along the shoreline.
c) The area and width are not within 80% of the minimum
roquirerients and therefore Council approval of a
variince is net23e-3 be' -,--,re a simile fami',.v dwelling
can be constructed thereon.
4. Th(_• lot is isolate(l from -)ther undeveloped land. I`
is surroun.:•-d on all aides by lakeshore or by lots
containin i exi tin; 3iny1N family dwellings.
,3) Th•: lot is ther,�f')re ur,i_.i•.:c. anJ the general coriolti,na
of the lot ara:: Pt"-, A. to such prr)perty.
b) Ther- i i n,3 lanai which could be added
t.he lo* 3-e' .-f.-nfo rmity of this
City of ORONO
RESOLUTION OF THE CITY COUNCIL
NO.
5. The lot is presently served by the public sanitary
sewer system, and has been assessed for such service,
including assessment of one unit charge.
6. The proposed location of the single family dwelling
meets all the stipulated setback requirements of. the
Zoning Code including:
a) 75 ft. minimum setback from the lakeshore
b) 35 ft. minimum front yard
c) 30 ft. minimum rear yard
d) 10 ft. minimum side yards
7, An existing carriage house, located 24 feet from the
rear lot line, is proposed to to removed prior to
construction of the new house.
8. There ire present:l; in the chain of title easements
benefiting Darrell K. Stewart anc: the Gregg S. Fia►inahs
which provide for a wall -way over the lot to the lake.
9. The easements run over one of thr side yards as indicates
on Exhibit S.
a) The easements exclude any driving privileges.
b) The side yard affected by the easements gill remain
covered by grass or foilage and a small corner of
driveway as shown on Exhibit A.
c) There will be no building r other obstruction
in the easement area.
I. They 10 ft. width and location of the easements
is i.!entical to the 10 ft. wide minimum side
yar d setback .trea.
2. The access to the proposed dwelling in case of
fire will remain the same as if no easement
existed.
1. The light. and air within the side yard will
remain the same as if no easement existed.
4. The op*rnness or *, j, A c: f `hp side yard
will remain th- same as if no easement exiat*d.
City Of. ,_)RONO
RESOLUTION OF THE CITY COUNCIL
10. The proposed location of the single family 'welling
including all decks, patios or other appurtenances,
is set back more than 75 feet from the shoreline as
required by the City ordinance.
11. QuestionF were raised regarding the intent, interpre-
tation and application of Section 34.201 which states
that no building may be 'ocated clos�_r to the shoreline
than the average distance from the shoreline of existing
residence buildings on adjacent and nearby lots".
a) The Becker house is located 115 feet from the
shoreline.
b) The Lauer house is located lfl feet from the shoreline.
c) other homes within 50U feet of the Rhode lot vary
from no setback at all to 336 feet from the shoreline.
d) A mathematical averaginq of setback distances bears
no practical relationship to other existing house
locations or to the purpose of requiring a lakeshore
setback line consistent with that of adjacent proper :es.
e) The intent of the "average setback requirement`- was to
protect the sight lines of neighbors as they view the
lake from their homes.
f) Whenever a question is raised as to the existing view,
the practice of the City is to carefull.; review all
the facts such as topography, vegetation, and existing
sight lines from the windows and/or lakeside yards
of the affected neighbors.
(1) The proposed location of the i?t:odH house is set behind
a line designated as DD on Exhibit A driwn as an
extension of the front, lakeside or he Becker house.
h) Be::aiise of the angle of the Becker .use _ompared to
the an<31e of the s� -,reline, "cker ,as no view of the
lake behind 1,-o L-.-), and has restricted views of the
lake across the Rhoele lot ahead of line D-D bec3u,t! of
t!xi.sting ve,7e*ation on the Rhode lot.
i) Tht-. prior existing cabii on the Rh -cue lot was directly
in th- line of vision between the 3ecker house and
the lake but also was s(mewhat obseurred from the Becker
he-ise bec,11_130 of the same veget stion mentioned above.
City of ORONO
RESOLUTION OF THE CITY COUNCIL
NO. l2 /ice
j) The sight line or view of the lake from the
lakeside facade of the Becker house will not be
obstructed by the proposed location as shown on
Exhibit A.
k) The only neighbors whose sight line or view of
the lake will be obstructed by the proposed location,
the Lauers, have no objections to the proposed
location of the dwelling and have provided a written
statement in support of the proposed location.
1) The "average setback 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.
m) The City Council has granted variances in such cases
in the past, based upon the same standards and
interpretations as applied in this case.
12. Mr. Lauer wants the buildinq to be as far forward as
po-�;sibl`.
13. Mr. Becker wants the building as far to the rear as
possible.
a) B . ildiny th-� Rhode hous^ in the carriage house
location suggested by Becker would. cause the Rhode
house to be locates farther frorthe lakeshore
than is the Becker house.
b) The Rhode view of the lake might be obstructed by
the Becker house if he were required to build
behind line D-D, a l would be obstructed if h,- were
required to build .: the carriage house location.
14. The plan presented for approval at the July 21, 1980
meeting contains 5,520 s.f. of building, driveway,
sidewalk and deck "hardcover" within the lot, which
hardcover is 636 s.f. more than the maximum 25'%
(4,684 s.f.) permitted in an area located between
75 ft. and 250 ft. from the shoreline.
a) This is d variance of 3% from the ordinance require;Ants
of Section 34.202.
PAGE S OF /3
City of OR ONO
RESOLUTION OF THE CITY COUNCIL
NO. laZ_
b) This is 2,780 s.f. less hardcover than proposed
in the plan received on June 20, 1980.
c) This is 980 s.f. less hardcover than the 6,500 s.f.
proposed in the plan approved by Resolution No. 851.
d) A finding of Resolution No. 851 was that no hardcover
variance was required because in 1977 the gravel
driveway proposed was not at that time considered
to be hardcover, in which case the total hardcover
would have been less than the -n3xi.mum 25" permitted
by 34.202.
e) If the gravel driveway had been considered to be
hardcover in 1977, the plan as approved by Resolution
No. 851 would have require -nn 8° hardcover variance.
f) Since 1977, the policy and interpretation of the
Planning Commission and Council has changed because
of reviews of other applications and now gravel
surfaced driveways are considered to be "hardcover"
for purposes of Section 34.202.
q) Considering the 2riveway to be hardcover in both
instances means that the 1980 plan contains less
total hardcover than the previously approved 1977
plan.
15. The carriage house, presently in existence on the lot,
was in existence at the time of the passage of applicable
ordinances as well as at the time when Mr. Rhode's lot
was created and given its description as presently recorded.
16. Rhode's original 1977 plan proposed conversion of the
existing carriage house into a quest house. This plan
was later amended to use of the carriage house as an
accessory building for storage only.
a) Resolution No. 851 made a finding as follows:
"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 structure. The carriage
house is in excess of the size limitations for an
accessory use. Such a continued use of *he carriage
house woull be adverse to the intent and purposes of
the. Zoning Code, would result in diminution in value
to the surrounding oroperty. Plans for the house
show construction of adequate garage and storage space
attached to the home. There would be too m.ich hardcover
if the c3rri:igN house remained and the propose•_i house
was cnn.irrucf�ed."
City of ORONO
RESOLUTION OF THE CITY COUNCIL
NO. _ /11/,2_
b) Rhode's current application calls for complete
removal of the carriage house consistent with
the conditions of Resolution No. 851.
17. There is presently in existence one seasonal dock
used jointly by the two easement holders referred
to in paragraphs 8 & 9 above.
18. Prior to purchasing the lot, Mr. Rhoae discussed
the "buildability" of the same with Hank Muhich,
then Zoning Administrator for the City.
19. Mr. Rhode was told that this lot had in the past
been determined to be "buildable" by prior Council
action, namely a lot area and lot width variance
approved for Fred Rogers in October, 1974, based
upon a September, 1974 survey attached as Exhibit B.
20. 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 appl,• Generally to other
land in the area.
b) The lot cannot be combined with undeveloped land.
21. It is necessary that Mr. Rhode be granted a variance
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-IB lot for
which he paid $45,000.
22. 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.
23. Residential use of the Rhode lot is a "permitted" use
in the LR-1B district, even though th• lot is substandard
in area and width accor inq to current zoning standards.
PAGE 2_OF 1„�,
city Of ORONO
O
RESOLUTION OF THE CITY COUNCIL
NO. /21-�
24. Granting the variances as to lot size and width
will not be contrary to the intent of the Zoning
Code or to the intent of the Comprehensive Plan.
a) The lot is sewered; consequently, there will be
no threat to public health occurring because of
excessive crowding of private sewage disposal
systems.
b) One more dwelling in the already developed area
will not materially increase the density of the
neighborhood, as long as the present carriage
house is removed first, prior to construction of
the new house. This is particularly true because
the lot previously contained the cabin dwelling.
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. All required
setbacks are met by the proposed _plan.
d) No impairment of morals will result from the
proposed 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 in 1977 would amount to a practical difficulty
as it would have a deleterious effect on the property
values of all concerned and because soil conditions may
adversely affect the strength and Durability of the dwelling.
26. The same conditions outlineO abov -ply to granting a
variance as to the "average setbi, -ule, to wit: it
will not be contrary to the inten�_ the Zoning Code
or Comprehensive Plan and there will be no adverse effects
on n-ighborinrl properties.
27. The Planning Conunission, after hearing testimcny,
recommended to the Council that Jack Rhode be grantee:
a variance from the "average setback" requirement, which
would allow him to build where proposed.
28. Any variance for the lot should not be granted unit,-,s
the carriage house is first. removed.
FACIE OF 1-3
City of ORONO
RESOLUTION OF THE CITY COUNCIL
NO.
29. The Ordinances, Comprehensive Plans and practical
situation which existed as of November 14, 1977, when
Resolution No. 851 was passed, has not changed with
respect to the reasons underlying the decision to
grant a Lot width and lot area variance or to use line
D to D, as depicted on Exhibit A, as the lakeshore
setback line for the Rhode property.
30. That the part of line D to D to C represented by
"D to C" on Exhibit A to Resolution No. 851 does
not provide any greater protection for the Becker's
sight line of the lake than "D to D" extended all
the way across the Rhode property.
31. Line D to D, extended a'1 the way across the Rhode
property, protects the cker's sight line or view
of the lake. (See Find.ng No. 11 herein.)
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 ensure 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
and which dock is intended to serve only Rhode ar_d his
successors in title and the current easement holders
Hannah and Stewart and their respective successors in
title, and which dock must be constructed in accordance
with all applicable City and LMCD ordinances.
PAGE -2-C ,X_
City of ORONO
RESOLUTION OF THE LITV COUNCIL
NO. 0117 42
C. Thut on the .hode lot either attached to the dock, moored
in front of :he lot or located on the lot, there may nor -
be at. any time more than three watercraft, as defined by
Regulation ::.01, Subd. 13 of LMCD F— ulations, either
docked, mooed or stored.
D. That a short form of this Resolution may hereafter be filed
in the chain of title for the lot noting tlh,st the City
Council hereby finds as follows:
1. That a dock is an accessory use to residential
property and must. be attached directly to the
riparian residential lot it is designed to serve.
2. That any joint usc- of a dock on this property presercly
and/or in the future may be only .pursuant to an anneal
joint :.se dock license as set forth in Chapter 74 of
the OrDno :Municipal Code.
E. That Mr. Rhode must execute, prior to the effective date
of this variance, and in a form approved by the City
Attorney, a document to be filed in his chain of title,
which restricts the use of the property to one dock of
not more than 100 feet in length, with not more Chan three
watercraft moored at the dock in front of the lot, or on
the property at any time, and that all installation or use
of said dock shall only be pursuant to the t-2rms and
conditions of an annual joint use dock license and other
applicable City ordinances regulating the location,
construction and use of docks and mooring areas. Rhode
and the easement holders shall apply for said license
annually on forms provided by the Cit% and in accordance
with all application requirements and license fees required
of similar joint use dock licenses.
PAGE X�2 OF 1--3
City of ORONO
RESOLUTION OF THE CITY COUNCIL
NO. 7
F. The three watercraft allowed pursuant to this Resolution
may be owned only by Rhode, or his successors in title
to the subject property legally described in the title
of this resolution, or the two present easement holders,
Gregg Hannah and Darrell Stewart, or their successors in
title to property legally described as Tract I, PLS 264
and combined Tracts G & H, RLS 269 respectively.
II. GRANTING THE VARIANCES
Based upon the above findings of fact and contingent upon
specifically those items as rioted in Paragraphs A through H,
the City Council of the City of Orono grants tn,� following
variances:
/�. A variance to Section 34.-.52 as to lot siae and width
with respect to the lot com.:.only known as 1410 Bohns
Point Road.
r 2. A variance to Section 31.2^? as to maximum permitted
hardcover to the extent of 3� such that no more than
5,520 s.f. of hardcover consisting of house, driveway,
side,alk, deck, patio or any other impermeable surface
may be erecter: or maintainel on this lot, and that all
such hardcover shall be located heyon_? 15 ft. from the
shoreline of Lake Minnetonka.
10" 3. An interpretation that line D-D as designated on Exhibit
A constitutes the average lakeshore setback line of
Section 34.201 which line protects r: lakeshore views
from the Becker house.
(A) That the Rhode house and all appurtenances thereto
be constructed entirely behind line D-D, being no
closer to the lakeshore than. line D-D, except as
follows:
1. An open, unscreen2d, unroofed, ur:en losed
balcony as shown on Exhibit A, not to exceed
30 ft. lon3, 3 ft. or 150 3 . ft. in area,
line
PAGE // OF /3
City of ORONO
RESOLUTION OF THE CITY COUNCIL
NO. /2 /.-;_�_ �_
2. An open, unscreened, unroofed, unenclosed deck
or patio not to exc•ec:d 30 inches in height above
the ground at any point may be constructed
according to City ordinances between the house
and the 75 ft. setback line from Lake Minnetonka,
provided the total lot hardcover does not exceed
the maximum 5,520 sq. -t. as approved in :io. 2
above.
4. That if the interpretation of average lakeshore setback
line as made in No. 3 above should be found to require
a variance from Section 34.202, that such a variance shall
be and hereby is granted finding no opposition of the
Lauers, a hardship of unusual lot configuration compared
to the location of the shoreline and to the Becker and
Lauer houses, and that such a location behind line D-D
'does in fact adequately protect the sight lines and property
values of the Becker property.
5. 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 document relating to the use of docks
on the Rhode lot as set forth in the findings of facts.
This document must be recorded before the City staff is
authorized to issue ar;_: building permit for this lot.
6. The City Council hereby finds that the variances shall be
denied and will be considered to be invalid unless `.he
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.
7. This variance approval ::Nall terminate and expiry one
year from the date of City Council adoption of this
Resolution, consi3teut with the provis_ons of Section
32.371, unless all the conditions of tnis approval have
been mot and a building permit has been applied for in
compliance with this approval.
PAGE OF 1�
City of ORONO
RESOLUTION OF THE CITY COUNCIL .z NO. /07 / -
This Resolution was adopted by the City Council of the City
r Or o y,a vote of __3 ayes and _4 nays on the day of
1980.
Q__
•'
William #z
Van Nest, M yor
ATTEST:
`Wa1tQf R. enson Cite Ad, Lnistrator
I have read the terms of the above Resolution and agree j be bound by
them. (Jack Rhode and any other party with property inter_st)
Jack Rhode
STATE OF MINNESOTA
ss
COUNTY OF HENNEPIN
On this ZL day of (� 198a, before tti§, a no Lary
within and for said county, rsonally appeared.-
_ to me known to be l:erscns described -
in, an who execute the foregoing :nstrun*.F.nt, and acknowledged that
they executed the same 3s their free act and deed.
`lot ry 8
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vio9awww • asssn. AWLM fr
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PAGE I3 OF /
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REGULAR MEETING OF THE ORONO COUNCIL, OCTOBER 14, 1980 Page 3
Councilmember Hannah vacated his seat at the City L VARIANCE
Council table for the following item. 1410 Bohns Point Road
#546
Mr. Jack Rhode and his attorney, Mr. Swenson, ,lack Rhode
were F—sent regarding a variance for 1410 Bohns
Point Road.
Discussion centered around the history and
policy of the City regarding easements.
Paurus moved, Hurr seconded, to adopt Resolution RESOLUTION #1212
#1212, A Resolution Amending Resolution #851 And 1410 Bohns Point Road
Granting Jack Rhode Variances 'I Allow Construction Jack Rhode
On The Lot Known As 1410 9ohns Point Road Legally
Described As That Part Of Government Lot 1 Lyinq
East Of West 442.93 Ft. Thereof And North Of South
1058.3 Ft. Thereof And South Of Registered Land
Survey #269. Motion, Ayes (3) - Nays (0).
Councilmember Hannah returned to the Council
table.
Butler moved, Hannan seconded, to adopt Re50—'*.ion RESOLUTION #1213
#1213, A Resolution Approving A Metes And Bounds 625 North Ferndale Rd.
Subdivision For William. Fielding, 625 North Ferndale #558
Road. Motion, Ayes (4) - Nays (0) . William r iz 1ding
Mr. Wisegarver and his attorney, Mr. Oberhauser, CONDITIONAL. USE PERMI?
were preser- 3800 Wayzata Boulevard
# 561
Discussion included the past history of the :naiyet, Keller's Market
access to the mazk,t off of Highway #12, the cola
storage shed, and thw greenhouse.
Paurus moved, Hurr seconded, to deny the transfer
of the conditional use permit as presented based
on the original intent of the permit; original
permit was for a fruit -and vegetable stand; many
ea:.ensions have been added to the original building,
property and business, whereby the City Ce,ir,cil has
seriously considered to bring it Lack to the original
permit or consider rezoning as referenced by the
past history noted in Alan Olson's memos dated
s e 1. 9 , August / 8 , and September 3, 1980. Motion,
Ayes ( 4 ) - :iay s 10 ! .
Discussion followed concerning the greenhouse.
Mr. W.segarver stated that it would be removed
by October 30, 1980.
moved, Hannah seconded, to table the variance
request for a proposed greenhouse for Keller's
Market antil the next muting. Motion, Ayes (4)-
Nays (0) .
VAR' ANCE
3800 Wayzata Boulevard
Keller's Market
CITY of ORONO
Control No. 546
114iNt Office Box fifi*Crystal Ray, Minnesota 55323•Municipal Offices
Telephone 473-7357
TO: Mr. Jack Rhode
1690 Shadywood Road
Wayzata,
Minnesota 55391
Copies to: Swenson, Malkerson & Hannah
Meeting Date October 14, 1980,'
Notice Date October 15, 1980 !
_X Variance
Conditional Use Permit
Subdivision, Preliminary
Subdivision., Final
**'*l:i�***7:�:*iY* i. **::**�%'iC7ti iC�C 7tiX :i it�t is �C�C'�i�i:if iC �CiC�:::�C�C �'±C i�'�Cit �f n iCiC�::**�.'7�C**�C'iC �CiC**�C*�'i✓�*iC�*
COUNCIL ACTION Vote: 3 For 0 Against Abstention
MOTION Council adopted attached Resolution No. 1212 approving variances as
set forth herein.
NOTE: Rhode must sign, notarize and return a copy of this Resolution - I
to the City and must execute the restrictive document cited
in E on Page 10 prior to the validity of the variance. As I
per Item 7 on Page 12, all conditions of approval must be I
satisfied by October 14, 1981 or the valiance approval terminates i
and a new application will be necessary.
�k*k�k�lnk�r*sY�k*�r*�Ic�F�*�ir�k*�ir�k�rkyF'k*�k�k**�l•*�'r�F�k�k�hk�k*CIF*9r�k****�nk*�k�k**�'*�tc: #�rArk�r�**�k**�
DEADLINE DATE October 1 1981
X for submittal of new information (application may be idered
formally withdrawn if information or explanation is no, provided).
X for Work Permit for work to begin for work to be
application completed
x_ WORK PERMITS ARE REQUIRED - contact Building Inspector before beginning
work.
X VARIANCE APPROVAL is limited to the extent shown on approved plans.
Do not change plans. Variance authority expires one year after approval.
CONDITIONAI. USE APPROVAL expires upon change of ownership or use,
or on deadline date specified above.
PRELIMINARY SUBDIVISION APPROVAL. - Applicant must provide all information
and/or improvements required for final approval. Contact Zoning
Administrator.
_ FINAL SUBDIVISION APPROVAL - Applicant must have drawings, resolution
and all other required documents recorded, with certification of such
recording returned to the City by deadline date.
Certified copies of official City Council Minutes may be obtainer
contacting the City Clerk. Allow at least three weeks from meeting date.
CITY of ORONO
V—st Office Boa 66*Cryatal Bay, MiNUSNOW 5=1 0 Municipal omc*a
On the North Shore o/ Lake Minnetonka
April 13, 1981
Mr. Jason Becker
2700 White Oak Circle
Long Lake, MN 55356
Dear Mr. Becker,
In response to you: .etter of April 7, 1981, tho-•e has been
no activity concerning the Rhode property since last fall.
The City Council adopted Resol.ut ,: No. 1212 on October 14,
1980, reapproving the Rhode vari_nces subject to the condi-
tions contained therein. Mr. Rhode has not agreed in writting
to those conditions and has not yet applied for any building
permit. Tnis approval was valid for one year and will
expire if all conditions are not met during that time frame.
Sincerel
A n P. Olson
ty Planner
cc: Walter R. Benson
James Swenson
St llAMNt, A 10V♦4, ♦' 1 a At.VIti111N c 114iN & F1%A .( 1 4', I1 A 0 ri bi K *OR0A . Y' 1 ' AS 4
AW %&I%(