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HomeMy WebLinkAboutCOMBINED itemAGENDA ITEM Prepared By: mcc Reviewed By: DJR Approved By: DJR 1. Purpose. This application is regarding after-the-fact variances to permit as-constructed improvements within the lake and average lakeshore setbacks. 2. MN§15.99 Application Deadline. The application was received on January 10, 2020 and was considered to be complete on January 23, 2020. The 60-Day review period has been extended and now expires on May 22, 2020. 3. Background/ Summary. On March 9th, the City Council reviewed the application for after-the-fact variances concerning unpermitted expansions of a boathouse and lakeside deck within the lake, and average lakeshore setbacks. The Council voted 4 to 0 on a motion to deny the after-the-fact variances. The Council directed the applicant to obtain building permits to conduct the encroachment removals and to pay any applicable after- the-fact fees. 4. Staff Recommendation. Staff recommends the Council adopt the denial resolution. COUNCIL ACTION REQUESTED Council should amend or approve the drafted denial resolution. Exhibits A. Draft Denial Resolution B. Draft Council Minutes C. Council Memo 03/09/2020 References Council Exhibits 03/09/2020 PC Staff Report and Exhibits 02/18/2020 Item No.: 13 Date: Item Description:– –Denial Resolution Presenter: Agenda Section: CITY OF ORONO RESOLUTION OF THE CITY COUNCIL NO. ________________________ Page 1 of 6 A RESOLUTION DENYING VARIANCES FROM SECTIONS 78-1279; 78-1680; and 78-1700 FILE NO. LA20-000005 WHEREAS, on January 10, 2020, William Haack of Gordon James Construction, on behalf of the property owners (hereinafter the “Applicant”), applied for variances from the City Code for the property addressed 2665 Casco Point Road and legally described as: Lot 136, Spring Park, Hennepin County, Minnesota (hereinafter the “Property”); WHEREAS, the Applicant represents the home builder who constructed a new single family home on the Property for the owners. In October 2019, the Applicant submitted an as-built survey and requested a final Certificate of Occupancy for the project. 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; and WHEREAS, as a result of the unpermitted improvements, the Applicant has made application to the City of Orono for after-the-fact variances to Orono Municipal Zoning Code Section 78-1279 to allow expansion of hardcover and a non-conforming boat house building within the 75-foot setback from the OHWL and lakeward of the average lakeshore setback; and WHEREAS, the Applicant has made application to the City of Orono for variances to Orono Municipal Zoning Code Sections 78-1680 and 78-1700 to allow unapproved hardcover within the 75-foot setback and 3,555 square feet or 27.6% hardcover on the property where 3,389 square feet or 26.3% was approved per Resolution No. 6796; and WHEREAS, on February 18, 2020, after published and mailed notice in accordance with Minnesota Statutes and the City Code, the Planning Commission opened a public hearing, at which time all persons desiring to be heard concerning this application were given the opportunity to speak thereon; and WHEREAS, on February 18, 2020, the Planning Commission recommended denial of the requested after-the-fact variances with a split vote of 5 in favor and 1 against; and WHEREAS, on March 9, 2020, the City Council reviewed the application and the recommendations of the Planning Commission and City staff; CITY OF ORONO RESOLUTION OF THE CITY COUNCIL NO. ________________________ Page 2 of 6 WHEREAS, on March 9, 2020, the City Council with a 4 to 0 vote, directed preparation of findings for denial of the after-the-fact variances; further the Applicant was directed to obtain after-the-fact building permits in order to remove the unpermitted improvements to the boathouse. NOW, THEREFORE, BE IT RESOLVED that the City Council of Orono, Minnesota hereby denies the after-the-fact variances pertaining to the unpermitted improvements as described above based on one or more of the following findings of fact concerning the Property: FINDINGS OF FACT: 1. This application was reviewed as Zoning File #LA20-00005. The analysis contained within staff memos and the exhibits attached to the aforesaid memos, all minutes from the above mentioned meetings, and any and all other materials distributed at these meetings are hereby incorporated by reference. 2. The Property is located in the LR-1C, One Family Lakeshore Residential Zoning District. 3. The Property is within Tier 1 and hardcover is limited to 25% according to the Stormwater Quality Overlay District. 4. Applicant has applied for the following variance[s]: a. Hardcover variance to exceed 3,389 s.f. (26.3%) approved per Resol. No. 6796. b. 75-foot Lake setback variance. c. Hardcover within the 75-foot lake setback. d. Average Lakeshore Setback variance. 5. In considering this application for variances, the Council has considered the advice and recommendation of the Planning Commission and the effect of the proposed variances 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. ANALYSIS: 1. “Variances shall only be permitted when they are in harmony with the general purposes and intent 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 CITY OF ORONO RESOLUTION OF THE CITY COUNCIL NO. ________________________ Page 3 of 6 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. “Variances shall only be permitted . . . when the variances are 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. “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 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 are not 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. The plight of the landowner is due to circumstances unique to his property not created by the landowner. The Applicant states that the boat house supersedes the current owners’ ownership of the Property. This is not justification necessary support the new encroachments into the lake yard. While the boathouse was not originally 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, are not necessary CITY OF ORONO RESOLUTION OF THE CITY COUNCIL NO. ________________________ Page 4 of 6 to preserve the existing boathouse and are not supported by practical difficulty; and c. The variance, if granted, will not alter the essential character of the locality.” The Applicant states that the variance “…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. 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. CITY OF ORONO RESOLUTION OF THE CITY COUNCIL NO. ________________________ Page 5 of 6 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 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. CONCLUSIONS, ORDER AND CONDITIONS: Based upon one or more of the above findings, the Orono City Council hereby denies the variances to Section 78-1279 to allow expansion of hardcover and a non-conforming boat house building within the 75-foot setback from the OHWL and lakeward of the average lakeshore setback; and denies variances to Sections 78-1680 and 78-1700 to allow unapproved hardcover within the 75-foot setback and 3,555 square feet or 27.6% hardcover on the property where 3,389 square feet or 26.3% was approved per Resolution No. 6796, subject to the following conditions: 1. Council action is based on the entire record, above Findings. 2. The Applicant shall obtain all building permits including payment of after-the-fact fees in order to remove the encroachments and restore the boathouse to the original footprint and volume. The permits shall be obtained and the restoration work completed by September 1, 2020. CITY OF ORONO RESOLUTION OF THE CITY COUNCIL NO. ________________________ Page 6 of 6 3. No Final Certificate of Occupancy shall be issued for the new residence on the Property until the Property is in compliance with Resolution No. 6796 and applicable City codes. ADOPTED by the Orono City Council on this 30th day of March, 2020. ATTEST: CITY OF ORONO: _______________________________ ________________________________ Anna Carlson, City Clerk Dennis Walsh, Mayor MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, March 9, 2020 6:00 o’clock p.m. _____________________________________________________________________________________ 14. LA20-000005 – GORDON JAMES CONSTRUCTION O/B/O DAVID & LYNN GUTERMUTH - 2665 CASCO POINT ROAD, AFTER-THE-FACT VARIANCES Staff presented a summary of packet information. Johnson confirmed with Staff that the house was new construction. Johnson asked if the homeowner removed existing hardcover around the lakeside shed in order to apply the hardcover in another location to make sure they were conforming. Curtis stated that was true; a sidewalk/stair system, a deck, and a fire ring that were to be removed. Walsh asked if there was a photo showing the original deck. Johnson said he wanted to make sure that when they came in for the permit the deck was there and that they elected to remove that to get their hardcover within acceptable standards. Curtis stated that was true. Johnson asked if, when they presented the as-built survey, it did not include the decking, and after the as- built it was discovered the hardcover was added. Curtis said that was true. Johnson asked if the recently discovered changes of the structure were subtle. Curtis said when the inspector went out, the changes in the building were present. After the as-built, the deck was put on. Johnson asked how many permits would be required to do what has been done. Curtis discussed the different permits required for the different tasks completed. Johnson asked if the homeowner pulled those permits. Curtis said the re-siding permit may have been, but the changes to the structure -- the volume and expansion -- were not. It could have been one building permit for the shed. Johnson asked if there was a fireplace in the structure or a chimney for a future fireplace. Curtis stated the builder would have to answer that question but that would be a separate permit. Johnson asked if there were any utilities in the shed. Curtis and Councilmembers discussed that it appeared as though electrical was available and also a sink. Johnson asked what was in the shed prior to the reconstruction. MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, March 9, 2020 6:00 o’clock p.m. _____________________________________________________________________________________ Curtis said she did not know. Mr. William Haack, Gordon James Construction, 5159 Main Street, Maple Plain, said there was electrical in the shed previously. The owner wanted a countertop with a sink installed. A cabinet was put in but no sink installed and no plumbing. There is an irrigation system that comes alongside the structure. When they were building the new home, the owner asked them to freshen up the boathouse. He indicated the 2015 survey showed the same square footage of the boathouse as the 2019 survey -- 286 feet -- which was after the work was done, so hardcover was not changed. It was a simple facelift and it was not considered that any special permits were needed to re-side it. The homeowner removed the deck and hired a dock company to install a removable dock system. The homeowner considered it part of his boat dock and that is how it was constructed. Crosby asked if the calculation on the old deck was added to the square footage of the new house. Curtis stated she is not sure where it went, but it did go to the project. Mr. Haack indicated if Staff’s numbers were 240 square feet on the dock, 249 is the number for the permanent deck that was on there originally. Walsh said the construction company has been around for a long time and knows the rules. He asked how a conversation about putting a dormer on a boathouse goes when everyone knows it will not get approved. Mr. Haack stated they looked at it from a footprint and height perspective. The height is exactly the same except the chimney; the footprint does not change. The architect may have overlooked that the gable part goes out of the spirit of an in-kind/volume aspect. Walsh asked if Mr. Haack now understands the rules. Mr. Haack stated they are getting more clear. Walsh said he was personally a little disappointed to see it was done without asking anyone, because approval would never be given. He stated anything above the high-water mark, whether it is on planks or not, is a deck/hardcover. The owner has the right to have the same amount of hardcover as before but will have to find hardcover somewhere else. Crosby noted a plumbing permit was not yet pulled and wondered, since there is a sink planned, if that would be done later or would be done in the middle of the night. Curtis indicated the homeowner can have a sink with a permit. Mr. Haack stated they would be putting in a sink and a cabinet. He said the chimney is for aesthetics, but if the homeowner chose to put a fireplace in later, they would need to contact the City for a permit. Seals said the facelift looks very nice. The City is very protective of the first 75 feet, it is clear a homeowner can replace in-like/in-kind, and the City was clear in their direction regarding the new build of the house. It is sneaky to call it a dock, and when you do anything on the water, everyone can see it. She agreed there is no practical difficulty and because it is after the fact, it is concerning. She supports the Planning Commission and Staff. If the Council says yes, it could bring about more of this behavior. MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, March 9, 2020 6:00 o’clock p.m. _____________________________________________________________________________________ Crosby noted it will allow the homeowner to have more hardcover in their original building by pulling the old deck from there and bringing it to the house. Walsh added the City holds a zero tolerance for any expansions of boathouses and they want to remain consistent that it is a no for everyone. Mr. Haack clarified that the oversight was the gable on the roof. Walsh indicated that it would have to go back to the original roofline. Mr. Haack said the homeowner hired people to put the dock together. The homeowner asked for consideration that the dock remain, that it is smaller and their view is that the dock is not a deck. Walsh said the homeowners can have what they had, but that it has to come off somewhere else and they have to make that decision. Curtis pointed out the areas of the expansions after Crosby asked to look at the original sketch. Johnson asked if that was an after-the-fact sketch and noted the City was never considered in any of the improvements. Crosby indicated that he is clarifying on the gable part that the City was not considered. Mr. Haack said he understood it was on the original submitted plans. Johnson asked if Staff recommendations included returning it to its original state. Curtis clarified that the recommendation was to not approve any hardcover variances. Mr. Haack stated if the dock sections are taken off, the homeowner would be under the variance approval for square feet of the property. Walsh clarified that the homeowner will receive no hardcover variances. He can decide what to do with the 74 square feet he has; he can do so within the footprint of what he had previously. The chimney and gable would need to be removed. If the boathouse remains the same but is re-sided with 2-inch stone rather than ½-inch siding, he would be fine with that. Curtis asked how the Council felt about the gable bump-out. The Councilmembers indicated that anything which expanded the envelope and the volume needs to be brought back to the original structure. The core shell cannot be expanded. If the homeowner gets rid of all the deck, he will have 75 square feet to work with. Johnson asked whether any changes will still require a permit. Curtis indicated that was correct. MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, March 9, 2020 6:00 o’clock p.m. _____________________________________________________________________________________ Mr. Haack asked if the changes being discussed would need a permit. Johnson and Walsh said he was correct and that there would be additional permits needed and perhaps field inspections. Johnson moved, Seals seconded, to follow Staff recommendations and stay within the approved hardcover, get the appropriate permits and pay the appropriate fees for the permits, and get inspections regarding LA20-000005 – Gordon James Construction O/B/O David & Lynn Gutermuth - 2665 Casco Point Road, After-the-Fact Variances. VOTE: Ayes 4, Nays 0. AGENDA ITEM Prepared By: mcc Reviewed By: J. Barnhart Approved By: 1. Purpose. This application is regarding after-the-fact variances to permit as-constructed improvements within the lake and average lakeshore setbacks. 2. MN§15.99 Application Deadline. The application was received on January 10, 2020 and was considered to be complete on January 23, 2020. The 60-Day review period has been extended and now expires on May 22, 2020. 3. Background/ Summary. 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. 4. Planning Commission Vote and Comment. On February 18th, the Planning Commission held a public hearing. Following the public hearing the Planning Commission voted 5 to 1 (Erickson) on a motion to recommend denial of the after-the- fact variances. There appeared to be support for the cosmetic changes which do not result in expansions to the height, footprint, or lakeward extent of the non-conforming boathouse. There also appeared to be support of allowing a minimal landing from the boathouse door to connect to the dock. The dissenting Commissioner supported the request as submitted. 5. Public Comment. There was neighbor testimony during the public hearing in support of the aesthetic changes. 6. Revised Plans. Based on the Planning Commission and staff feedback, the applicant has provided a revised plan which modifies the lakeside deck area, attached as Exhibit C. This plan reflects a reduction in hardcover from the original after-the-fact variance request, but results in a 32 square foot increase above the approved variance level. Item No.: # Date: 9 March 2020 Item Description: Presenter: Agenda Section: AGENDA ITEM Prepared By: mcc Reviewed By: J. Barnhart Approved By: 7. Staff Recommendation. Staff recommends denial of the variances as amended. Staff is challenged to determine the practical difficulty arguments are satisfied with an accessory structure, especially when the encroachments are architectural/ decorative in nature. Further, the applicant made hard cover decisions at the time of building permit to meet the hard cover limits imposed by the variance. Staff cannot support a variance to exceed those limits, especially after the fact. COUNCIL ACTION REQUESTED Council should make a determination regarding the new encroachments and hardcover resulting in after-the-fact lake setback, average lakeshore setback, and 75-foot hardcover variances. Council should direct staff to draft a resolution reflecting your decision. Exhibits Exhibit A. As-Built Survey & Hardcover Exhibit B. Boathouse Elevations Exhibit C. Revised Deck Layout - Proposed Exhibit D. Boathouse Photos Exhibit E. Draft PC Minutes Exhibit F. PC Staff Report References PC Exhibits 02/18/2020 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