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HomeMy WebLinkAbout16-3884 Combined Exhibits for copyingCouncil Exhibit A Ar b o r : ~ 1 . 5 f e e t fr o m p r o p e r t y l i n e -----Original Message----- From: bcpalmer1 <bcpalmer1@aol.com> Sent: Mon, Dec 5, 2016 10:40 pm Subject: Pia and Jeff Schutt/Arbor at 2750 Casco Point Road, Wayzata, Mn. 55391 MEMORANDUM To: Orono City Council, City of Orono, Crystal Bay, Mn. 55323 From: Barbara J. Palmer, 2710 Casco Point Road, Wayzata, Mn. 55391 Re: Pia and Jeff Schutt/Arbor at 2750 Casco Point Road, Wayzata, Mn. 55391 My home is located adjacent to the East of the Schutt residence on Casco Point Road; the arbor in question is located between our homes. The arbor is supported by pillars and extends over a concrete pad; a sliding door opens onto this space which accommodates a grill and seating around a table. It is a relatively quiet and private area since I have only two small high windows in a bedroom which faces West. I understand your City Code does not address an arbor structure. However, this structure appears architecturally related to the residence. I would argue its being defined as a "fence" since it serves as an egress extension. It does not define a perimeter of the property nor serve as containment for an animal or small child. Rather, it simply a lovely and integral part of this beautiful home. It adds a definition to the outdoor environment and exhibits purposeful planning for its intended use. My family and guests have commented on how well it was planned and integrated into the home's foot print. I would urge you to allow this element to remain. Thank you for your consideration in this matter. Sincerely, Barbara J. Palmer Council Exhibit B Date Appeal Received: 11/07/16 Date Application Considered as Complete: 11/07/16 To: Chair Thiesse and Planning Commission Members Jessica Loftus, City Administrator From: Melanie Curtis, Planner mcc Date: 16 November 2016 Subject: Appeal Administrative Decision Jeff & Pia Schutt, 2750 Casco Point Road List of Exhibits Exhibit A. Appeal Application Exhibit B. Description Exhibit C. As-Built Survey Exhibit D. Letter: As-Built Review 10/25/16 Exhibit E. City Code Sections Exhibit F. Photos Background The applicants recently constructed a new residence at the property addressed 2750 Casco Point Road. The property is within the LR-1C zoning district requiring 10 foot side setbacks for principal structures. During the process of finaling out the permits, an as-built survey was submitted by the builder and reviewed by staff. Upon review it was evident that a pergola/arbor structure was constructed over a retaining wall very near the property line. A permit was not issued for this pergola/ arbor structure, nor was it shown on the original site plan. Applicable regulation Section 78-96 Board established Subsection (a) is hereby amended to read as follows: (a)A zoning board of appeals and adjustments is established. The planning commission is constituted as the board of appeals and adjustments. The board shall have the following powers: (1)To hear and decide appeals from any affected person where it is alleged that there is an error in any order, requirement, decision or determination made by an administrative officer in the enforcement of this chapter. (2)To hear requests for variances in accordance with this chapter. (3)To exercise other functions as provided in this chapter. The appeal process provides an opportunity for an applicant to present facts and prove that the city official erred in applying the ordinance to the issue in question. Council Exhibit C #16-3884 21 November 2016 Page 2 of 2 Discussion The applicants have constructed a narrow pergola or arbor over the 11 foot long retaining wall less than 2 feet from the side lot line, and detached from the home. Because pergolas are not specifically defined in the Code staff reviewed the structure against the Accessory Structure and Nonencroachment standards. Accessory structures less than 750 square feet are addressed in the Nonencroachment provisions under Sections 78-1405(a) 5 and 6 which state that no less than a 5 foot rear, and a 10 foot side setback shall be required for accessory structures. Alternatively, in an effort to find an appropriate regulation, because the pergola is linear, and similar in design to a fence, staff reviewed the fence standards within the Nonencroachment section. The pergola in the current location would need to be reduced to no greater than 6 feet in height (the maximum height of a fence) to meet the fence standards and remain in the current location. The applicants contend that Section 78-1405(a)1 is applicable. Staff notes that this section relates to building elements which are attached to the building, and are required to be at least 8 feet from the lot line (for this zoning district). The pergola is 2 feet from the property line. The Planning Commission must find that the arbor is consistent with those listed nonencroachments, and the provision that the 2 foot maximum extension does not apply. Action requested The Planning Commission should review the application and make a decision regarding the appeal. Exhibit A Exhibit B Arbor: ~1.5 feet from property line Exhibit C Exhibit D Page 1 Sec. 78-349. - Accessory uses. Within any LR-1C one-family lakeshore residential district, the only permitted accessory uses and structures are the following: (1)Buildings temporarily located for purposes of construction on the premises for a period not to exceed time necessary for such constructing. (2)Driveways, sidewalks and parking spaces. (3)Detached private garages and buildings subject to the performance standards of this chapter. (4)Private recreational facilities subject to the pertinent accessory structure location and height requirements of this chapter. (5)Private docks, subject to this code and other applicable regulations, including boat storage density requirements. The accessory use of a private dock shall not include renting space. (6)Kennel structures and dog runs, subject to the provisions of chapter 62, article 3. (7)Fencing subject to the provisions of section 78-1405(7). (8)Signs, as regulated in this chapter. (9)Flagpoles, subject to accessory structure location and height requirements of this chapter. (10)Gardening and other horticultural uses, including arbors, trellises, aviaries and decorative landscape features, and lawn sprinkler systems. (11)Compost structures and firewood piles, subject to the accessory structure location requirements of this chapter. (12)Home occupations, as defined in this chapter. All home occupations shall comply with the provisions of section 78-1376, and the licensing provisions of [section] 26-76, when applicable. (13)One temporary roadside stand offering for sale only farm products produced on the premises, provided such stand does not exceed 200 square feet in area and is located at least 30 feet back from the public right-of-way. (14)Storage of recreational vehicles and equipment such as RVs, boats, snowmobiles, etc., subject to the provisions of sections 78-1511 through 78-1515 and 78-1577. Ice fishing houses and similar structures equipped with wheels or mounted on a trailer shall be regulated as recreational vehicles. Ice fishing houses and similar structures not equipped with wheels or mounted on a trailer shall be regulated as accessory buildings and subject to accessory building regulations. (15)Garage sales, yard sales, estate sales or rummage sales, limited to a maximum of four consecutive days and occurring no more than two times within one calendar year per property; and sales of personal or recreational vehicles and equipment, limited to no more than two items per calendar year, and such items for sale shall not be parked in any portion of the public right- of-way, public boulevard, or required front yard except a designated, improved driveway. (16)Laundry drying equipment. (17)Other uses that are customarily incidental to, and subordinate to, the allowed permitted and conditional uses in this district. (Code 1984, §§ 10.20(4), 10.25(5); Ord. No. 161 2nd series, § 6, 6-7-1997; Ord. No. 221 2nd series, § 3, 9-23-2002; Ord. No. 82 3rd series, § 16, 12-13-2010; Ord. No. 93 3rd series, § 3, 6- 25-2012; Ord. No. 96 3rd series, § 3(3.01, 3.02), 11-13-2012; Ord. No. 106 3rd series, § 7, 6-10- 2013) Sec. 78-1405. - Nonencroachments. Exhibit E Page 2 (a) The following shall not be considered to be encroachments on yard setback requirements: (1) Chimneys, flues, belt courses, leaders, sills, pilasters, lintels, ornamental features, cornices, eaves, gutters, and similar building elements, provided they do not extend more than two feet into a required yard. (2) Nameplate signs for one-family dwellings subject to the provisions of article X, division 4 of this chapter; lights for illuminating parking areas, loading areas or yards for safety and security purposes, provided the direct source of light is not visible from the public right-of-way or adjacent residential property and is located at least five feet from the front lot line; public utility poles and overhead lines; mailboxes. (3) Terraces, steps, uncovered porches, stoops or similar structures which do not extend above the height of the ground floor level of the principal building and extend to a distance of not less than two feet from any lot line. Window wells including those for fire egress which do not extend more than five feet from the building. Sidewalks, driveways and parking areas when constructed, located and used in compliance with other provisions contained within chapter 78. Driveways may extend to within five feet of a side lot line. (4) In side or rear yards only, bays or cantilevers not to exceed a depth of two feet nor to contain an aggregate area of more than 20 square feet, fire escapes not to exceed a width of three feet and a depth of four feet, and open off-street parking. (5) In rear yards only, balconies, breezeways, detached outdoor picnic shelters, laundry drying equipment, and recreational equipment except as otherwise regulated; no accessory structure shall be closer than five feet from a rear lot line. (5.1) Retaining walls, subject to the following provisions: a. Retaining walls may be located in all required yards when all of the following conditions are met: 1. The structure is located at least ten feet from the edge of the traveled roadway; 2. The structure is not located within a drainage, utility, or other easement, except upon approval in writing for an encroachment agreement by the city; or similar approval from another regulatory and/or utility agency; 3. The structure creates no impacts to drainage direction, rate or volume for adjacent properties. b. Retaining walls which do not exceed two feet in height above existing ground level, which are located within the property and at least five feet from any property line, and for which the amount of imported fill associated with the structure does not exceed 20 cubic yards, do not require a building or land alteration permit. c. Retaining walls exceeding two feet in height above existing ground level or for which the amount of imported fill associated with the structure exceeds 20 cubic yards or which are located less than five feet from a property line, shall require a land alteration permit and upon recommendation of the building inspector may require city council review or a conditional use permit per the provisions of section 78-967. d. Retaining walls exceeding the allowed height of a fence in a given required yard shall be located so as to meet the required accessory structure setbacks established for that yard. (6) In side yards only, no accessory structure shall be closer than ten feet from any side lot line. (7) Air conditioning or heating equipment may be located within a required yard but shall be located within five feet of the building it serves; shall not be located within an existing or required drainage and/or utility easement; and shall be located at least five feet from any lot line. (8) Fences erected in all zoning districts are considered as a nonencroachment when they conform to the standards listed below. For the purposes of this section, the following definitions shall apply: Page 3 Permanent fence. A fence that is installed in a fixed or enduring manner that is not intended for a seasonal or temporary purpose. Temporary fence. A fence that is not permanently secured or anchored to the ground by posts or affixed footings, and is installed and removed on a limited term or seasonal basis such as: snow fences, garden fences, seasonal recreational fences such as hockey boards; fences installed for safety or access management purposes for special events; and fences installed for the duration of a construction project such as silt fences, erosion control bioretention logs, and septic drainfield site protection fences. Fence height. The measurement from the top of any part of the fence, including posts or other structural supports, lattice, ornate top design elements, and so forth measured to the existing ground level below the fence, as measured perpendicular to the slope (see Drawing). Exception: Post finials extending above the top of the fence shall not be deemed as part of the fence for height determination purposes as long as they do not exceed ten inches in width per finial and do not extend above the top of the fence by more than ten percent of the allowed maximum fence height at that location. Drawing: Fence Height Measurement on Sloped Site a. Nonlakeshore lots. 1. Fences and walls within a required front yard or side street yard shall not exceed a height of 42 inches above existing ground level . 2. Fences and walls within a required rear or side yard shall not exceed a height of six feet above existing ground level. b. Lakeshore lots. 1. Fences within the required street (rear) yard or side street yard of a lakeshore lot shall not exceed 42 inches above existing ground level. Exception: A fence not exceeding six feet in height may be located along the street lot line of a lake frontage lot which abuts a major thoroughfare. A major thoroughfare for purposes of this section means any county road or state highway. If such fence involves fill or berming, the total combined height of both fence and fill shall not exceed six feet above the height of the crown of the major thoroughfare. Page 4 2. Fences within the required side yard of a lakeshore lot shall not exceed six feet in height, and shall not exceed 42 inches in height for any portion located lakeward of a line drawn between the most lakeward projection of the fence owner's principal residence structure and the most lakeward projection of the principal residence structure on the adjacent property abutting the side yard in which the fence is located. 3. Fences shall not be constructed within the defined lakeshore yard of a lakeshore lot, i.e., shall not be located within 75 feet of the shoreline for general development lakes, 100 feet for recreational lakes, or 150 feet for natural environment lakes. 4. When the building site of a lakeshore lot is separated from the lakeshore by a public or private road, the following definitions will apply for fence location purposes subject to the provisions of section 78-1405(a)(8)a.2: When the yard on the opposite side of the building site from the lake does not abut a street, such yard shall be considered as a standard rear yard. The yard between the building site and the street shall be considered as a standard front yard. c. Special provisions. Split rail fences of no more than three rails within a required front, street or side street yard may have a maximum top rail height of 48 inches above existing ground level. Board rail fences within a front, street or side street yard for the specific purpose of enclosing permitted domestic animals may have a top rail height of 60 inches and shall be no more than 50 percent opaque. d. Intersection sightline obstruction prohibited. No fence shall be installed so as to obstruct a required clear view at street intersections as required by section 78-1371. e. Fence construction and maintenance. 1. The owner of a fence shall maintain it in a condition of reasonable repair and appearance and shall not allow it to become or remain in disrepair or in a dangerous condition. 2. Fences shall be installed with the finished side facing neighboring properties or the street. The term "finished side" means that side having no structural supports. 3. Fencing materials shall consist of permanent all weather products. 4. Temporary fencing shall not be allowed to remain on the property following final inspection, or issuance of a certificate of occupancy for a permitted construction project, or protection of property during a similar project or winter conditions. Winter conditions shall be defined as October 15 through March 31 of the following year. Temporary fencing associated with a special event shall be removed within seven days of the end of such event. Temporary fencing materials shall not be allowed to remain on a permanent basis on a parcel. 5. Existing fences that are legal nonconforming as to location, height, design or other characteristics may be replaced in kind. (9) Entrance monuments, defined for the purpose of this section as a nearly permanent physical structure or object, natural or artificial, used to depict an entrance to the property, erected in all residential zoning districts are considered nonencroachments when they conform with the following standards: a. Each monument, with a maximum of two per approved driveway access, shall be limited to a single pillar with a footprint measuring no larger than 25 square feet and no length to exceed five feet; b. The monument must be setback a minimum of five feet from all property boundaries and never fewer than ten feet from the edge of the paved, traveled roadway; c. Plans and/or elevation views of the proposed monuments are required to be submitted for approval by the planning director; Page 5 d. All signage proposed for the monuments must comply with section 78-1467; e. The monuments are limited to eight feet in height including any appurtenances. Any monument exceeding the maximum height must meet principal structure setback requirements; f. When more than one monument is proposed, and serving two or fewer residences, a minimum horizontal width of 16 feet is required between them; g. When more than one monument is proposed, and serving three or more residences, a minimum horizontal width of 22 feet is required between them; h. Lighting is allowed, in conformance with section 78-1573 and at the discretion of the planning director. i. When a gate is proposed, the following requirements must be met: 1. The gate must open into the property not outward towards the right-of-way, and 2. Gates serving two or fewer residences shall have a minimum horizontal width of 14 feet in the full open position, and 3. Gates serving three or more residences shall have a minimum horizontal width of 20 feet in the full open position, and 4. For all properties, gate height may not exceed the height of the monument, measured from grade, unless principal structure setbacks are met (if monuments are not proposed then gate height shall be regulated in accordance with the fence height regulations of section 78-1405(8), and 5. Gates must maintain an opacity level of no greater than 25 percent, and 6. For locked and/or secured gates a knox box, meeting the standards set forth by the police and fire department, must be provided for emergency access, and 7. On major thoroughfares the monuments and gates must be located 40 feet from the paved, traveled road to allow for vehicle stacking. A major thoroughfare for the purposes of this section means any county road or state highway. j. A building permit is required for installation. A survey must be submitted depicting where the monuments will be placed, and the property corner pins must be located for inspection purposes. (b) The following shall not be considered to be encroachments on structure height requirements: (1) Parapet walls that extend no more than three feet above the height of the building. (2) HVAC cooling towers. (3) Elevator penthouses. DIVISION 3. - ACCESSORY BUILDINGS AND STRUCTURES[22] Sec. 78-1433. - Height restrictions. No accessory building or structure in an R district shall exceed the height of the principal building, nor shall an accessory building or structure exceed 30 feet in height. (Code 1984, § 10.03(9)(B); Ord. No. 106 3rd series, § 23, 6-10-2013) Sec. 78-1435. - Location. Page 6 Except as may be specifically provided, no detached garage or other accessory building shall be located nearer to the front or street lot line than the principal building on that lot. Detached garages or other accessory buildings on lots which have frontage on a lake may be located between the rear yards of such lots and the principal building only if setback requirements of section 78-305(b), section 78-330(b) and section 78-350(b) are met. Exception: Detached garages on lots that have frontage on a lake may be located ten feet from the street or rear lot line when doors face away from the street and an adequate vehicle turnaround is provided on the site. This section shall not apply to lakeshore lots that are divided by streets or private roads or are corner lots. (Code 1984, § 10.03(9)(D); Ord. No. 52 3rd series, § 2, 11-24-2008; Ord. No. 106 3rd series, § 25, 6-10-2013) Sec. 78-1436. - Setbacks. Accessory structures in excess of 750 square feet footprint area but not exceeding 1,000 square feet footprint area shall be located at least 15 feet from any lot line. (Code 1984, § 10.03(9)(E)) Sec. 78-1438. - Crowding principal building. No accessory building, unless an integral part of the principal building, shall be erected, altered or moved within ten feet of the principal building, nor within ten feet of another accessory building. (Code 1984, § 10.03(12); Ord. No. 165 3rd series, § 1, 3-14-2016) Sec. 78-1439. - Garages. Accessory buildings which are for the storage of automobiles shall have the doors 30 feet or more from the property line when the doors face on a public alley or street. (Code 1984, § 10.03(13)) Sec. 78-1440. - Exterior materials. Except for accessory buildings that are less than 120 square feet in area or are located on lots two acres in area or larger, an accessory building and the principal building shall be consistent in design and color. Detached garages located within the rear yard on lots that have frontage on a lake shall have windows or other ornamental features on the wall facing a street or private road. ExF MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday, November 21, 2016 6:30 o’clock p.m. 7. #16-3884 JEFF AND PIA SCHUTT, 2750 CASCO POINT ROAD, APPEAL, 7:35 P.M. – 8:07 P.M. Michael Schutt, son of Jeff and Pia Schutt, was present. Curtis stated the applicants have constructed a narrow pergola or arbor over an 11-foot long retaining wall. The retaining wall is located less than two feet from the side lot line and is detached from the home adjacent to a patio. Because pergolas are not specifically outlined in the Code, Staff reviewed the pergola against the accessory structure and non-encroachment standards. Accessory structures less than 750 square feet are addressed in the non-encroachment provisions and are permitted no less than five feet from a rear lot line and ten feet from a side lot line. In an effort to find an appropriate regulation, Staff alternatively looked at the fencing regulations as the pergola is lineal similar to a fence. In the encroachment section regarding fencing, the pergola in the current location would need to be reduced to no greater than six feet in height to meet the fence maximum. In order to close out their permit and receive a certificate of occupancy for the new home on the property, the pergola issue must be satisfactorily resolved. The applicants have opted to appeal the decision of Staff on this matter. The appeal process provides an opportunity for an applicant to present facts and prove that the City official erred in applying the Code. The applicants contend that Section A1 under the non-encroachment section is applicable. Staff would note that that section relates to building elements which are attached to the building and are permitted to encroach up to two feet into a required side yard setback, still requiring on this property that the structure needs to be at least eight feet from the lot line. The pergola is approximately two feet from the property line. The Planning Commission should review the application and make a decision regarding the appeal. Thiesse asked if there is any City ordinance that would construe that the structure is in the right spot. Council Exhibit D Curtis indicated Staff was not able to find any. Landgraver asked if a landscape plan was submitted. Curtis stated this is new construction and there was a landscape plan submitted. Curtis noted there was a French drain shown on the landscape plan in the approximate location of the pergola. The builder assured Staff that the French drain is there but that is one of the features Staff has requested be shown on the revised as-built survey. Landgraver noted the Planning Commission did review a landscape plan and to his recollection the pergola was not included. Michael Schutt stated he is here tonight to answer questions on behalf of his parents since they are out of the country at the present time. Schutt stated given the fact that there is no structural integrity to the feature, the question is whether it should be defined as a pergola, an arbor, or a fence. Curtis displayed a picture of the structure. Schutt noted the retaining wall was needed for the drainage from the neighboring property and that the structure is an enhancement. Schutt indicated the adjacent neighbor is very much in favor of it and believes it adds to the aesthetics of her property as well. Schutt stated they would like to get some clarity on it. Thiesse asked if any public comments were received. Curtis indicated Staff did not receive any comments but that this was not noticed for a public hearing since it is an appeal and the neighbors were not specifically notified. Lemke asked if the retaining wall was included in the original plan. Curtis stated there was a patio and the French drain included in the plan but to her recollection the retaining wall was not included. It is Staff’s belief that it is not a retaining wall but rather a sitting wall. Thiesse noted there is also a boulder wall that is adjacent to it but that this is more of a sitting wall. Curtis stated they are different. Thiesse asked if this would have required a variance if the Planning Commission had seen this originally. Curtis stated the wall at its current would likely have been allowed but it is the height of the structure that is at issue. Schoenzeit stated in some ways this is semantics, and that if it were a trellis with some type of plant growing on it, it would not be an issue. Schoenzeit stated the City would also want to make sure it does not expand. Schoenzeit stated the fact that there is not a lean-to on the house currently helps the situation. Lemke asked if a trellis would be allowed in this location. Landgraver noted the issue is the height of the structure. Schoenzeit asked if it being classified as a fence because of its length. Curtis stated Staff is not necessarily calling it a fence but were merely attempting to find a regulation that would apply to it. Leskinen noted it would not be allowed as a fence given its height. Barnhart stated the Planning Commission should look at the code and determine whether Staff misapplied the code to this situation. Barnhart stated while it might be a nice addition to the area, Staff could not find any code to allow it. Barnhart noted a stone wall is permissible up to 42 inches high depending on its location, but once the wood structure is added, the height is restricted. Schoenzeit asked as part of the appeal process whether there is any way to test whether the code was misapplied versus whether an after-the-fact variance is more applicable. Barnhart stated the applicants could apply for an after-the-fact variance. Thiesse noted that would be a separate process. Schoenzeit stated the issue is whether the code was applied incorrectly. Thiesse noted he asked if there is any code or regulation in the City that would allow it and the answer was no. Thiesse stated every time a different name is given to it, something else comes up prohibiting it. Schutt stated one of the issues is that no one has been able to apply a name to it since it is merely there for aesthetics. Schutt stated they are asking for some lenience on the structure given the fact that it is more or less an aesthetic structure. Schutt noted the wall was needed for drainage purposes and that they added the structure on top of it as an enhancement. Thiesse stated no matter what it is called, it is too high and the wall, since it serves as the foundation, is too close to the property line. Curtis stated the accessory structure regulations are pretty all-encompassing and allows a number of different structures but require five feet at the rear and ten feet into the side for the setbacks. Curtis stated from the standpoint of not calling it a fence but applying the fence standards to it, Staff was attempting to find a little leeway. Lemke stated in his view it serves the same purpose as an arbor and that he would call it an arbor. Leskinen noted even as an arbor, it would be considered an accessory use. Leskinen commented it is too high and too close to the property line no matter what it is called. Schutt stated it was included in all the original plans and was there when the property was inspected on different occasions. Schutt stated the difficulty was to depict it adequately on the plans given its height. Schutt indicated it was not until the final inspection that it caused concern. Schoenzeit asked if the circumstances would be different if it was a purchased sculpture and placed there with a forklift. Curtis stated it becomes a question of whether it is furniture, like a lawn chair or umbrella, or something that is seasonal. Curtis noted this was constructed onsite and is permanent. Thiesse stated it comes back to no matter what you call it, it is not allowed. Thiesse stated the role of the Planning Commission tonight is to verify whether the code was applied correctly, and if the applicants are not satisfied with the outcome, they could apply for an after-the-fact variance. Olson asked if the property owners were misguided and they were led to believe it was approved. Curtis stated to her recollection the original plan did not show a wall but depicted a patio in that location. Schutt stated it has been a part of the plan from the beginning and it was not until the final inspection that it became an issue. Curtis stated City inspectors are normally called out to look at a specific feature, such as plumbing or framing. The inspectors are onsite for a limited amount of time and are there to look at a specific thing. Curtis noted this is a small feature, did not cause a drainage problem, and the neighbors have not complained about it. At the time of the final as-built inspection, the inspector walks the site, he takes photographs, and then meets with Staff to ensure that the project complies with the plans. Curtis stated Staff realizes there will be changes to landscape plans because they are somewhat, which is why that was not called out by any of the inspectors. Thiesse noted the role of the Planning Commission is only to discuss whether the code was applied correctly and that it appears the code was applied correctly. Landgraver stated as a service to the community, he would not want to say that all the applicants need to do is apply for an after-the-fact variance since that may not be approved. Landgraver stated he remembers discussing the patio since it was close to the edge of the property but that he does not remember discussing anything vertical in that area. Landgraver stated had there been something like this discussed, he probably would have had a concern about it. Landgraver indicated he tends to agree that Staff has attempted to find a way to say yes but that the height is the issue. Landgraver stated he is inclined to think the criteria used by Staff was correct and that he would tend to deny the appeal. Landgraver stated he also is concerned whether it will get a variance if it is at six feet. Curtis stated at that point Staff would probably apply the fence standards again. Schutt indicated it is 7.5 feet high and lines up exactly with the roofline on the house. Schutt stated bringing it down to six feet would result in it being directly in the line of sight from the house. Schoenzeit asked if this arbor was included in any of the elevations that were submitted to the City. Schutt stated he does not feel comfortable answering that question at this time. Curtis stated Staff could look at that. Curtis indicated she does not remember that being included and that typically landscape elements are not included in the building plans except for perhaps an egress window or a change in grade or where a retaining wall is necessary. Schoenzeit stated if it were included in the approved elevations at 7.5 feet, that would change the discussion. Curtis stated if it was not something that was called out in Staff’s plan review or permitted, she is not sure that it would be approved by default. Curtis stated she is relatively confident it was not included in the building plan and that it is more of a landscaping element. Curtis stated the house is also right at the limitation for structural coverage and that this would have been an issue given its height. Schoenzeit moved, Landgraver seconded, Application No. 16-3884, Jeff and Pia Schutt, 2750 Casco Point Road, to recommend denial of the appeal. Olson stated if the applicants were misguided at all in building this structure, they now have to tear it down and incur costs. Olson stated he is not sure if that is the case, but if it is the case, he has an issue with the applicants incurring costs to do that, especially if it was not their fault. Thiesse stated what he is hearing is that Staff did not tell them any one thing but that the applicants understood one thing but it was not on the plans. Thiesse stated if the applicants can come up with any documents that show it was included in the plans that were reviewed, they could bring it back. Right now the Planning Commission is talking about whether the existing code was applied correctly Schoenzeit stated if the applicants want to attempt to keep it, they can apply for an after-the-fact variance. Landgraver asked how much time the applicants would have to appeal the Planning Commission decision. Curtis indicated they would need to appeal the Planning Commission’s decision within ten days. Thiesse asked if an after-the-fact variance would be necessary if they can show it was included in the plans. Barnhart stated if it is denied at the City Council level, the applicants will have exhausted their appeals, and another avenue might be an after-the-fact variance request. Thiesse asked if they would have to apply for an after-the-fact variance if the plans show the structure on it. Barnhart stated if Staff told them they could keep it during the review process, the remedy is not that Staff erred in applying the ordinance but rather the fact that they were misguided could be considered a hardship. Barnhart noted as-built surveys are required because things are sometimes fluid and typically it is not an issue. Curtis stated that is one of the reasons why a landscape plan is required. Curtis stated Staff requires the landscape plan to be shown on the survey. When the applicants came in for a building permit, they had a survey and a landscape plan that should have been incorporated into the survey. Curtis stated Staff is not interested in plantings but rather interested in hardscape. Curtis stated what Staff is approving is the survey. Schoenzeit stated if the applicants had provided elevations for the structure, this would be a different discussion. Landgraver asked if he would able to find documentation within ten days. Schutt indicated his parents should be back within the next ten days and that it is his belief they have all the appropriate documentation. Schutt stated he appeared tonight to show that they are willing to work with the City. Curtis stated Staff will also take another look at all the materials that were submitted. Schutt stated if there is documentation showing that, they would be willing to submit that. Lemke asked what would happen if it was depicted on the plans. Curtis stated even if it was on the plans and somehow it appears to have been approved by Staff by omission, Staff still does not have the ability to grant a variance. Leskinen noted what is before the Planning Commission right now is whether Staff applied the ordinance correctly based on the information they have before them tonight. VOTE: Ayes 6, Nays 0.