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HomeMy WebLinkAboutDenial Resolution 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