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HomeMy WebLinkAboutResolution 7670 Denying CUP Retaining Walls 1200 Wildhurst Trl Council ` Exhibit A sOiv- CITY OF ORONO RESOLUTION OF THE CITY COUNCIL e c, NO. 7670 tikES H O'2:" A RESOLUTION DENYING VARIANCES AND A CONDITIONAL USE PERMIT PURSUANT TO MUNICIPAL ZONING CODE CHAPTER 6.12 SECTIONS 1450, 6240 & 6940 FILE NO. LA25-000036 WHEREAS, Brian Roath (hereinafter the"Applicant"), applied for after-the-fact approval of variances and a conditional use permit("CUP") pursuant to the City Code for the property addressed 1200 Wildhurst Trail and legally described as: Tract B, Registered Land Survey No. 1450, Hennepin County, Minnesota; Torrens- Certificate of Title No. 1585718 (hereinafter the"Property"); WHEREAS, in July of 2024, the City received a complaint regarding retaining walls and patio improvements constructed without permits and located within required setback areas on the Property; and WHEREAS, on July 23, 2025, the Applicant submitted an application to the City of Orono for an after-the-fact variance from Orono Municipal Zoning Code Section 6.12.1450 to allow a patio, landing, and associated improvements constructed within the required side yard setback; and WHEREAS, the Applicant also applied for an after-the-fact variance from Section 6.12.6940 to permit new and replacement retaining walls exceeding two (2)feet in height to be located up to the side property line, where a minimum five (5)foot setback is required; and WHEREAS, the Applicant further applied for after-the-fact consideration of a CUP pursuant to Zoning Code Section 6.12.6240 to allow new and replacement retaining walls within the shore setback zone, located less than 75-feet from the ordinary high-water level ("OHWL"); and WHEREAS, on August 18, 2025, after published and mailed notice in accordance with Minnesota Statutes and the City Code, the Planning Commission held a public hearing, at which time all persons desiring to be heard concerning this application were allowed to speak thereon; and WHEREAS, during the public hearing, a member of the public identified the presence of a lake yard shed constructed on the Property within required setback areas without prior City approvals; and g0N- CITY NO. 7 OF 670 ORONO RESOLUTION OF THE CITY COUNCIL tiF G� kESHOQF WHEREAS, on August 18, 2025, the Planning Commission tabled the application and directed the Applicant to submit additional materials necessary for review, including a current certificate of survey, updated hardcover calculations, and detailed construction plans; and WHEREAS, the application was received and deemed complete on July 23. Pursuant to the 60-day statutory review timeline, the initial review period was set to expire on September 21, 2025. Staff exercised the option to extend the review period an additional 60 days, establishing a revised deadline of November 20, 2025. Additional time was required to process the application, and a further extension was requested by the Applicant. The current extension period is set to expire on March 20, 2026, and WHEREAS, on February 23, 2026, following such review and deliberation, the City Council voted unanimously (5-0)to direct staff to prepare written findings supporting denial of the after-the-fact variance and Conditional Use Permit applications; and WHEREAS, if granted, the after-the-fact zoning applications would have remedied the zoning violations; and NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Orono, Minnesota, that the requested Conditional Use Permit and variances described above are hereby denied based upon the following Findings of Fact relating to the Property, the applicable provisions of the Orono Municipal Zoning Code, and the record established before the Planning Commission and City Council: FINDINGS OF FACT: Al. The analysis contained within staff memos and the exhibits attached to the aforesaid memos, all minutes from the above-mentioned meetings, and all other materials distributed at these meetings are hereby incorporated by reference. A2. The Property is located in the LR-1 B One-Family Lakeshore Residential Zoning District. A3. The Property contains 0.63 acres in area and has a defined lot width of 93 feet. A4. The Property is within Tier 1, and hardcover is limited to 25% according to the Stormwater Quality Overlay District. A5. The Applicant has applied for after-the-fact approval of the following: a. Side Yard Setback Variances b. Conditional use permit for retaining walls within the shore setback zone 2 �0� CITY OF ORONO RESOLUTION OF THE CITY COUNCIL y� • NO. 7670 t-i''EsH&-(" A6. In considering this application for after-the-fact variances and CUP, the Council has considered the advice and recommendation of the Planning Commission and the effect of the proposed application upon the health, safety and welfare of the community, existing and anticipated traffic conditions, light and air, danger of fire, risk to the public safety, and the effect on values of property in the surrounding area. VARIANCE ANALYSIS: B1."Variances shall only be permitted when they are in harmony with the general purposes and intent of the ordinance . . . ."The Property is subject to the dimensional and shoreland performance standards of the Orono Municipal Zoning Code, including minimum side yard setbacks and shore setback requirements applicable to retaining walls, patios, landings, and accessory structures. The Applicant has failed to demonstrate how the variances are in harmony with the code or necessary for the enjoyment of the Property. B2."Variances shall only be permitted . . . when the variances are consistent with the comprehensive plan." The requested variances would permit structural improvements directly up to the side property line and within required shore and yard setbacks, thereby reducing open space and separation between properties in a manner inconsistent with the goals outlined within the Comprehensive Plan. B3."Variances may be granted when the applicant for the variance establishes that there are practical difficulties in complying with the zoning ordinance. `Practical difficulties,' as used in connection with the granting of a variance, means that: a. The property owner in question proposes to use the property in a reasonable manner, however, the proposed use is not permitted by the official controls. The Applicant has not demonstrated that strict enforcement of the ordinance would preclude a reasonable use of the Property. The Property is capable of reasonable residential use in conformity with the Zoning Code. b. The plight of the landowner is due to circumstances unique to his property not created by the landowner. The Applicant constructed or caused to be constructed the patio, landing, retaining walls, and associated improvements without required permits and within required setback areas prior to seeking relief. Any difficulty in complying with the setback requirements is self-created, as the improvements were installed without first obtaining zoning approval or building permits. The property in question shares similar characteristics to surrounding properties and does not possess any unique qualities. 3 icL.OAO CITY OF ORONO RESOLUTION OF THE CITY COUNCIL tiF L� NO. 7670 t-1kESHO3-- c. The variance, if granted, will not alter the essential character of the locality." Granting the requested variances would undermine the purpose of setback requirements, which include protection of neighboring properties, preservation of light and air, stormwater management, and maintenance of neighborhood character. B4."Economic considerations alone do not constitute practical difficulties."The Applicant has not cited economic considerations in support of the request. B5."Practical difficulties also include but are not limited to, inadequate access to direct sunlight for solar energy systems. Variances shall be granted for earth-sheltered construction as defined in Minn. Stat. § 216C.06, subd. 2, when in harmony with Orono City Code Chapter 78."This criterion is not applicable. B6."The board or the council may not permit as a variance any use that is not permitted under Orono City Code Chapter 78 for property in the zone where the affected person's land is located."The requested relief pertains to structural encroachments (patio, landing, retaining walls) within the required setback and shoreland areas. A variance may authorize deviation from dimensional standards but may not authorize a use otherwise prohibited in the zoning district. To the extent the improvements constitute structural encroachments rather than a change in land use, this criterion does not independently support approval. Because the Applicant has not provided sufficient documentation demonstrating full conformity with permitted use provisions, the City cannot make an affirmative finding under this criterion. B7."The board or council may permit as a variance the temporary use of a one-family dwelling as a two-family dwelling."The request does not involve such a request. Accordingly, this provision does not apply to the request before the Council and provides no independent basis for approval of the requested variances. B8."The special conditions applying to the structure or land in question are peculiar to such property or immediately adjoining property."The Applicant has not demonstrated that special conditions peculiar to the Property necessitate the requested setback encroachments. No topographic survey, grading plan, or engineering documentation has been submitted to establish unique physical constraints such as extreme slopes, irregular lot configuration, or other site-specific limitations. The record instead reflects that the improvements were constructed without prior approval and located within setback areas by choice. Self-created circumstances do not constitute special conditions peculiar to the land. Therefore, this criterion is not satisfied. 4 .‘7LO,A1O CITY OF ORONO RESOLUTION OF THE CITY COUNCIL ti� G� NO. 7670 I�kESHO¢0 B9."The conditions do not apply generally to other land or structures in the district in which the land is located." Setback and shoreland restrictions apply uniformly to properties within the same zoning district. The Applicant has not demonstrated that the Property is subject to constraints materially different from other similarly situated residential lots. Absent evidence of unique physical limitations, the circumstances underlying the variance request appear common to properties in the district. Granting relief in this instance would therefore risk establishing a precedent inconsistent with the uniform application of the Code. This criterion is not met. B10. "The granting of the application is necessary for the preservation and enjoyment of a substantial property right of the applicant." The Property is capable of reasonable residential use in compliance with applicable setback and shoreland standards. The requested variances relate to patio placement, retaining wall location, and accessory improvements, none of which are necessary to preserve the fundamental residential use of the Property. The Applicant has not demonstrated that denial would deprive them of a substantial property right enjoyed by others in the district. Rather, the request seeks to preserve specific constructed improvements in their current nonconforming locations. This criterion is not satisfied. B11. "The granting of the proposed variance will not in any way impair health, safety, comfort, or morals, or in any other respect be contrary to the intent of this chapter."Shoreland setback and structural setback standards are intended to protect water quality, prevent erosion, preserve drainage patterns, maintain separation between structures, and safeguard neighborhood character. The Applicant has not provided sufficient engineering data, drainage analysis, or slope stability documentation for the City to determine that the retaining walls and related improvements within the shore setback area do not adversely affect erosion control or stormwater management. Without the requested supporting materials, the Council cannot affirmatively conclude that granting the variance would not impair health, safety, or the regulatory intent of the Chapter. Accordingly, this finding cannot be made in support of approval. B12. "The granting of such variance will not merely serve as a convenience to the applicant, but is necessary to alleviate demonstrable difficulty."The record reflects that the improvements were installed without required approvals and that no additional materials were submitted to the Planning Commission after they requested further documentation. The Applicant has not demonstrated a practical difficulty arising from the land itself that necessitates the encroachments. Instead, the requested variances would allow retention of improvements constructed in noncompliance with the Code. Relief under these circumstances would function primarily as a convenience to the Applicant rather than as a remedy for demonstrable land-based hardship. This criterion is therefore not satisfied. 5 BOAT CITY OF ORONO RESOLUTION OF THE CITY COUNCIL �� NO. 7670 !4k£sxo " CONDITIONAL USE PERMIT ANALYSIS: Section 6.12.6240 (5)(c) states that walls in the shore setback zone shall require a conditional use permit. New walls and replacement walls greater than 4 feet in height must meet the following conditions. The wall must be: B13. Designed to correct an established erosion problem; the Applicant provided a professional opinion from a professional engineer, which stated that the retaining walls eliminated a steeply sloped eroded area that was difficult to maintain and provided additional storm runoff retention over the flatter planted areas they created. The walls were also designed to preserve mature trees. While this narrative supports a functional and aesthetic benefit, the ordinance standard is evidentiary and retrospective in nature. The term "established erosion problem" implies the presence of documented, pre- existing erosion conditions prior to construction activity. The record does not contain objective documentation demonstrating that a documented erosion condition existed prior to the Applicant's intervention. Instead, the engineer's statement characterizes the area as "steeply sloped" and "difficult to maintain,"which does not, in itself, establish active or ongoing erosion as contemplated by the ordinance. Accordingly, because the evidentiary record does not substantiate that the walls were constructed to correct a previously existing and demonstrable erosion problem, this criterion has not been met, and B14. Suitable given the demonstrated need; the engineer's letter further states that the walls provide stability to the slope, the trees, and help to reduce erosion. The engineer also indicates that the construction of the walls and associated grading improves stormwater runoff and increases opportunities for infiltration. This criterion has been met, and B15. Designed by a registered engineer or landscape architect, depending on the project scope; Based on the professional engineering opinion that the slope required stabilization and that the wall system functions to control runoff and improve infiltration, the design appears proportionate and technically responsive to the site's topographic constraints. This criterion has been met, and B16. Designed to be the minimum size necessary to control the erosion problem. The documentation demonstrates professional involvement in evaluating the wall design and construction relative to slope stability and drainage considerations. The requirement that the wall be designed by a registered engineer or landscape architect has therefore been satisfied. 6 v.O.41O CITY OF ORONO RESOLUTION OF THE CITY COUNCIL y� G• NO. 7670 `�kESHo°- CONCLUSIONS, ORDER, AND CONDITIONS: Conditional uses may be approved only upon demonstrating that the proposed use meets the standards and criteria outlined in the Orono Municipal Zoning Code, including compatibility with the surrounding area, protection of natural resources, and consistency with the City's Comprehensive Plan and shoreland management objectives. Shore setback requirements are intended to protect water quality, prevent erosion, preserve natural topography and vegetation, and minimize adverse impacts to lakes and adjacent properties. The Applicant has not provided sufficient engineering, grading, drainage, or erosion control information to demonstrate that the retaining walls within the shore setback area meet applicable performance standards. Because the improvements were installed without prior review, the City lacks adequate documentation to determine whether the structures adversely impact drainage patterns, slope stability, or shoreline protection. The Applicant has failed to provide the information necessary to demonstrate that the requested CUP satisfies all applicable standards and conditions required for approval. Accordingly, the City Council finds that the Applicant has not met the burden of proof required to justify approval of a Conditional Use Permit. Based on the foregoing, the City Council finds that the Applicant has failed to demonstrate practical difficulties as required by Minnesota law and the Orono Municipal Zoning Code. Therefore, the Orono City Council hereby denies the Applicant's request for after-the-fact variance approvals, which include a patio, landing, and associated improvements constructed within the required side yard setback; retaining walls constructed to the side property line, where a minimum five (5)foot setback is required. Further, the City Council hereby denies the Applicant's request for an after-the-fact conditional use permit for retaining walls to remain, as constructed within the shore setback zone, less than 75 feet from the ordinary high-water level. ADOPTED by the Orono City Council on this 9th day of March 2026. ATTEST: CITY OF ORONO: q‘----L.- Chri usi , City Clerk Bob Tunheim, Mayor 7