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HomeMy WebLinkAboutLA20-000005 (2665 Casco Pt Rd) Ex F PCSRDate Application Received: 01/10/2020 Date Application Considered as Complete: 01/23/2020 60-Day Review Period Expires: 03/23/2020 To: Chair Ressler and Planning Commission Members Dustin Rief, City Administrator From: Melanie Curtis, Planner mcc Date: 18 February 2020 Subject: #LA20-000005, Gordon James Construction o/b/o David & Lynn Gutermuth 2665 Casco Point Road • After-the-Fact Variances • Public Hearing Background A variance for a new home (File #17-3965) was granted in 2017, and a building permit consistent with the approvals was issued in January 2018. In October 2019, the builder submitted an as-built survey and requested a final Certificate of Occupancy. Upon inspection it was noted that unpermitted changes were made to the existing boathouse and a new deck had been installed replacing a deck shown as to be removed to offset hardcover. The deck was not shown on the submitted as-built survey. The boathouse is situated 16.5 feet from the ordinary high water level and is entirely within the average lakeshore setback. It is considered to be a legal non-conforming building. It can be rebuilt in-kind, but expansions to the footprint and/or volume of the building are not permitted without variance(s). Additionally, the new ±240 square foot lakeside deck was not rebuilt in-kind and not accounted for in the hardcover calculations; the hardcover now exceeds the approved level. Practical Difficulties Analysis Applicant Submittal Information: The applicant has provided a narrative and supporting documentation regarding Practical Difficulties attached as Exhibit B, and should be asked for additional testimony regarding the application. Planning Staff Practical Difficulty Analysis: Regarding practical difficulty, Staff finds that the expansions to the building are not supported by unique practical difficulties inherent to the land. The property owner has a right to maintain and even rebuild the existing building, however the expansions are cosmetic in nature (expansion of the roof gable) and are a convenience to the applicant; the building location did not change. Application Summary: The applicant is requesting after-the-fact lake setback, average lakeshore setback, and 75-foot hardcover variances. Staff Recommendation: Planning Department Staff recommends denial of the request for after-the-fact approval of hardcover and setback variances. FILE # LA20-000005 18 February 2020 Page 2 of 6 “Before Remodel” (photo provided by builder) “After Remodel” (taken by Orono’s Building Inspector) LOT ANALYSIS WORKSHEET Section 78-350 & 78-1279 – Boathouse Setbacks: North Side 7.5’ 1.6’ boathouse 1.6’ boathouse South Side 7.5’ 35.4’ boathouse 35.4’ boathouse Lakeshore 75’ Average Lakeshore FILE # LA20-000005 18 February 2020 Page 3 of 6 Section 78-350 - Lot Area/Width: Required 21,780 s.f. (0.5 acres) 100’ Actual 12,873 s.f. (0.29 acre) 60’ @ 75’ / 60’ @ OHWL Section 78-1403- Structural Building Coverage: 12,873 s.f. (0.29 acre) Allowed: 2,574 s.f. (20%) Proposed: 2,425 s.f. (18.8%) Section 78-1680 and 78-1700 - Hardcover Calculations: Overlay District Total Area in Zone Allowed No. 6796 Existing/As-Built Hardcover Tier 1 12,873 s.f. 3,218 s.f. (25 %) 3,389 s.f. * (26.3%) 3,555 s.f. 27.6% Including the 240 sf (approximate) lakeside deck: Submitted HC calcs: 3,315 s.f. *Within the 75-foot setback the following were included and permitted in the Resolution- approved hardcover: boathouse, retaining walls, and lake access stair. The fire ring, and the boathouse deck were not approved or included. Applicable Regulations: Hardcover Variances (Sections 78-1680 & 78-1700) and Lake Setback and Average Lake Setback Variances (Section 78-1279) The boathouse and deck are located within the 75-foot lake and average lakeshore setbacks. They are both legally non-conforming and could be replaced in-kind following the procedure and timelines in the Code. The boathouse is situated approximately 16.5 feet from the OHWL and was not to be removed or altered as indicated in the previous variance and building permit submittals. In order to make the hardcover work for the previous variance, the applicant showed the lakeside deck being completely removed. The deck was located approximately 8 feet from the OHWL. It was removed as part of the home construction. The new deck was constructed following the as-built survey and results in an excess of hardcover beyond the approved level. Governing Regulation: Variance (Section 78-123) In reviewing applications for variance, the Planning Commission shall consider the effect of the proposed variance 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. The Planning Commission shall consider FILE # LA20-000005 18 February 2020 Page 4 of 6 recommending approval for variances from the literal provisions of the Zoning Code in instances where their strict enforcement would cause practical difficulties because of circumstances unique to the individual property under consideration, and shall recommend approval only when it is demonstrated that such actions will be in keeping with the spirit and intent of the Orono Zoning Code. Economic considerations alone do not constitute practical difficulties. 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 this chapter. The board or the council may not permit as a variance any use that is not permitted under this chapter for property in the zone where the affected person's land is located. The board or council may permit as a variance the temporary use of a one-family dwelling as a two-family dwelling. According to MN §462.357 Subd. 6(2) variances shall only be permitted when: 1. The variance is in harmony with the general intent and purpose of the Ordinance. The variances for expansion of non-conforming structures in the lake yard are not supported by practical difficulties. Lake yard construction prohibitions are intended to maintain the natural lakeshore and encourage development away from the lake. Additionally, the goals of the average lakeshore setback requirement include protecting views from land into the lake, the requested variances to expand the volume of the existing boathouse are not in harmony with the Ordinance. The additional mass of the roof areas within the setbacks result in an increase of the building height closer to the lake than existing and may negatively impact the views into the property from the lake. The reorientation of the boathouse egress, and reconstruction of the lakeside deck with an expanded footprint and elevation are not in harmony with the Ordinance. This criterion is not met. 2. The variance is consistent with the comprehensive plan. The variances resulting in modifications to the existing boathouse with a volume expansion and a minor footprint expansion within the setbacks in a residential zone are inconsistent with the Comprehensive Plan. The changes are cosmetic and are not supported by necessary practical difficulties inherent to the land. The reconstruction and reorientation of the lake deck were not contemplated with the original approvals, and result in an increase in 0-75’ zone hardcover which is inconsistent with the Comprehensive Plan. This criterion is not met. 3. The applicant establishes that there are practical difficulties. a. The property owner proposes to use the property in a reasonable manner not permitted by the official controls; The reasonable use of the property is established with the principal structure. The applicant suggests that reasonable use extends to cosmetic improvements to a non-conforming building and structure which are not in-kind and therefore not protected by statute. The request to permit expansion of the boathouse lakeward of the average lakeshore setback and within the 75-foot lake setback do not appear to be reasonable. The reconstruction and reorientation of the lake deck were not contemplated with the original approvals, and result in an increase in 0- 75’ zone hardcover which is inconsistent with the Comprehensive Plan. This criterion is not met. b. There are circumstances unique to the property not created by the landowner; The applicant states that the boat house supersedes the homeowners ownership of the property. This is not justification necessary support the new FILE # LA20-000005 18 February 2020 Page 5 of 6 encroachments into the lake yard. While the boathouse was not constructed by the current owners, they have a right to keep and even re-build the boathouse in-kind. The constructed expansions are not a right and are not supported by practical difficulty; and c. The variance will not alter the essential character of the locality. The applicant states that the improvements “…enhances the character of the locality.” The proposed variances allow for the expansion of the footprint of the deck and expansion of the volume of the boathouse; and result in additional encroachment into the setbacks toward the lake, all of which are out of character with the neighborhood; they are not permitted for other structures. The reconstruction and reorientation of the lake deck are not supported by practical difficulty; were not contemplated with the original approvals; and result in an increase in 0-75’ zone hardcover which is inconsistent with the Comprehensive Plan. This criterion is not met. Additionally City Code 78-123 provides additional parameters within which a variance may be granted as follows: 4. Economic considerations alone do not constitute practical difficulties. Economic considerations have not been a factor in the variance approval determination. 5. 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 condition is not applicable. 6. 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. This condition is not applicable, as maintenance of a legal non-conforming accessory building is permitted by code. 7. The board or council may permit as a variance the temporary use of a one-family dwelling as a two-family dwelling. This condition is not applicable. 8. The special conditions applying to the structure or land in question are peculiar to such property or immediately adjoining property. There are no obvious special conditions applying to the structure or the land which are unique, or support the requested variances. The applicant has not identified special conditions to the structure or land justifying the variance. 9. The conditions do not apply generally to other land or structures in the district in which the land is located. The applicant has not identified conditions. This criteria is not met. 10. The granting of the application is necessary for the preservation and enjoyment of a substantial property right of the applicant. Substantial property right is provided by the principal structure. The boathouse is allowed to be maintained and replaced in kind. Expansion of an existing non-conforming building or structure is not a right. 11. 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. Granting the requested variances will not adversely impact health, safety, comfort, or morals; The Commission should determine whether the expansions negate the goals of the code in relation to views into, and out of the property, and hardcover limitations. 12. The granting of such variance will not merely serve as a convenience to the applicant, but is necessary to alleviate demonstrable difficulty. The applicant asserts that the variances are necessary and will not merely serve as a convenience to the owners. The variances provide an improved aesthetic and outdoor living space near the OHWL, which could FILE # LA20-000005 18 February 2020 Page 6 of 6 be considered conveniences. The fact that the improvements are installed is not a deterrent to their required removal, as that would be considered a convenience. The Commission may recommend or Council may impose conditions in granting of variances. Any conditions imposed must be directly related to and must bear a rough proportionality to the impact created by the variance. No variance shall be granted or changed beyond the use permitted in this chapter in the district where such land is located. Public Comments To date, no public comments have been received. Issues for Consideration 1. Does the Planning Commission find that that the property owner proposes to use the property in a reasonable manner which is not permitted by an official control? 2. Does the Planning Commission find that the variance(s), if granted, will not alter the essential character of the neighborhood? 3. Does the Commission find it necessary to impose conditions in order to mitigate the impacts created by the granting of the requested variance(s)? 4. Are there any other issues or concerns with this application? Planning Staff Recommendation Planning Staff recommends denial of the requested variances. The modifications to restore the boathouse to the original volume and footprint should be completed prior to issuance of a final Certificate of Occupancy. If the planning commission feels it appropriate and if applicant chooses to reconstruct the pre- existing lakeside deck in-kind or smaller to fit within the pre-existing volume and footprint, adjustments to hardcover elsewhere should be required. List of Exhibits Exhibit A. Application Summary Exhibit B. Practical Difficulties Documentation & Applicant’s Narrative Exhibit C. As-Built Survey 09/27/2019 Exhibit D. As-Built Hardcover Calcs 09/27/2019 Exhibit E. Survey for Variance (#17-3965) 05/31/2017 Exhibit F. Building Permit Survey (Approved) 01/05/2018 Exhibit G. Boathouse As-Built Elevations Exhibit H. Photos Exhibit I. Aerial Photos Exhibit J. Resolution 6796 (variances for lake yard retaining wall) Exhibit K. Property Owners List Exhibit L. Plat Map