HomeMy WebLinkAboutResolution 2620 IY 17
Cit� of ORONO
• � RESOLUTION OF THE CITY COUNCIL
� NO. 2620
" � � • •
A RESOLDTION DENYING
AFTER-TH$-FACT VARIANCLS TO
MiJNICIPAL ZONING CODE
SECTION 10.22, SIIBDIVISION 1 (A) & (B) ,
S$CTION 10.22• SIIBDIVISION 2,
SECTION 10.24, SDBDIVISION 5 (B) , AND
. SECTION 10.55, SDBDIVISION 8
FILE #1353
WHEREAS, the City of Orono is a municipal corporation organized
and existing under the laws of the State of Minnesota; and
� WHER$AS, pursuant to State Statutes 412 et. seq. and 462 et.
seq., the City Council of the City of Orono has adopted zoning regulations
for the protection of the public health, safety and general welfare; and
WHEREAS, John and Nancy Fiebelkorn (hereinafter "the applicants")
are the owners ef the property located at 2730 Shadywood Road within the
�ity of Orono (hereinafter "the City") and legally described as follows:
Tract C, Registered Land Survey #420, Hennepin County, Minnesota
(hereinafter "the property"); and
WHEREAS, the applicants have applied to the City of Orono
(hereinafter "the City") for after-the-fact variances seeking approval of
structures and hardcover within 75' of the shoreline of Lake Minnetonka
where no structure or hardcover is normally allowed per Municipal Zoning
Code Section 10.22, Subdivision 1 (A) , Section 10.22, Subdivision 2, and
Section 10.55, Subdivision 8, and seeking approval of an after-the-fact
variance to allow encroachment of an accessory structure nearer the lake
than the average lakeshare setback line where no encroachment is normally
allowed per Municipal Zoning Code Section 10.22, Subdivision 1 (B) ,� and
seeking approval for a side yard setback variance for a pool maintenance
equipment shed structure located less than 10' from a side lot line where a
10' side yard setback is normally required per Municipal Zoning Code
Sectian 10.24, Subdivision 5 (B); and
WHEREAS, the City Council has reviewed the application; the
recommendations of the City staff and the Planning Commission; and the
comments and written statements submitted by the applicants, app licants'
attorney, and the app licants' consultants.
NOW, THEREFORE, BE IT RESOLVED that the City Council of Orono,
Minnesota hereby denies the after-the-fact application as described above
�ased on one or more of the following findings of fact concerning this
roperty:
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Cit o� ORONO
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� RESOLUTION OF THE CITY COUNCIL
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� NO. 2620
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FINDINGS
1. This property is located in the LR-18, single family lakeshore
residential zoning district and consists of 18,510 s.f. or 0.42 acres.
The district requires 43,560 s.f. or 1.0 acres in area.
2. Pre-existing improvements to the property include a residence
structure located approximately 78' from the shoreline, an attached
deck and patio located 63' from the shoreline, and a portion of
bituminous driveway as located approximately 58' from the shoreline.
Pre-existing hardcover areas consisting of driveway, patio and deck
constituted 868 s.f. or 10.9� hardcover in the 0-75' lakeshore setback
zone where no hardcover is normally allowed.
3. The actual pool and spa construction encroach nearer the lake than
the average setback 1ine. The pool and adjacent patio proposed will
encroach as near as 21 ' from the shoreline. The pool and spa
originally proposed would, in conjunction with pre-existing hardcover
• not intended to be removed, constitute 28.4$ hardcover in the 0-75'
lakeshore setback zone where only 10.9$ hardcover had previously
existed and no hardcover is normally allowed.
4. Without having attempted to obtain the required building permit
• and without attempting to determine whether a building permit was
needed, the applicants in the summer of 1988 proceeded to construct a
spa and swimming pool located entirely within the 0-75' lakeshore
setback zone where no structures and no hardcover are normally
a l lowed. Thi s came to the attention of City staf f on September 6 ,
1988 at which time a site inspection was made and the construction was
posted with a "Stop Work Order". By that time, the pool and spa
construction was nearly complete. The property owners were advised
that such construction was illegal.
5. On October 26, 1988, the app licants applied (App lication #1353) to
the City for after-the-fact variances for hardcover, average Iakeshore
setback encroachment, and lakeshore setback for the pool and spa
construction and a side setback variance for the pool maintenance and
equipment structure.
- 6. In their letter vf agp lication, the applicants made the following
statements of hardship and description of unusual property conditions:
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• � RESOLUTION OF THE CITY COUNCIL :
� NO. 2620 _ �
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A) "Hardship. The necessity for a side yard setback variance is
attributable to a misunderstanding between applicants and their
neighbor as to the location of the existing property line.
The setback from the shoreline is necessitated by the unusual
configuration of applicants' 1ot and the placement thereon of
applicants' home which makes al 1 portions of their rear yard area
within the 75' shoreline setback area. Dredging of a portion of
their property years ago has resulted in the shoreline of Lake
Minnetonka having been artificially modified to create an inlet,
the result of which is to deprive applicants of the ability to
maintain any structure whatsoever in their rear yard area. This
situation also results in the need for a variance from the
applicable hardcover requirement in as much as no hardcover
whatsoever would otherwise be permitted in applicants' rear yard
area. "
B) "Description of unusual property conditions. App licants' lot
• is small and the house constructed thereon has been placed so as
to render the entire rear yard area within the 0 hardcover area
and the 75' "no structure" setback area. Applicants' rear yard
area is a bluff dropping down a relatively sheer-face at the rear
to the shores of an inlet dredged out to Lake Minnetonka. The
surface of applicants' rear yard is not visible from Lake
Minnetonka. The existence of a pool, or proposed decking
surrounding a pool cannot be seen from Lake Minnetonka. "
7. Application #1353 was reviewed by the Orono Planning Commission at
a public hearing held during the regular Planning Commission meeting
of November 21, 1988. The Planning Commission, after hearing comments
by the applicants, their attorney, landscape architect, and engineer,
voted 6-0 to recommend denial of the proposed after-the-fact
variances, finding that no suitable hardship or reasonable
. justification was presented for granting the variances after-the-fact.
8. At their regular meeting of January 23, 1989, the Orono City
Council reviewed the app lication for after-the-fact variances and the
Planning Commission recommendation. Additionally, the City Council
accepted comments from the app licants and their attorney as stated in
the minutes of that meeting. The Council indicated that approval of
the after-the-fact variances would be inconsistent with the City's
past practices, and that they could not accept the presented hardships
as valid. The Council tabled the application on a vote of 4-0 to
allow applicants time to work with City staff regarding removal of the
• poo 1 and spa.
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Clt o� ORONO
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• � RESOLUTION OF THE CITY COUNCIL
� NO. 2620
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9. At their regular meeting of April 10, 1989, the City Council
reviewed additional exhibits presented by the applicants, including a
letter from the applicants acknowledging that they would remove the
pool, but seeking approval to retain the spa and seeking approval to
retain the pool equipment and maintenance structure subject to a lot
line rearrangement to make that structure conforming to the required
setbacks. The City Council reviewed the revised request and again
determined that sufficient hardship had not been shown to justify the
granting of additional hardcover in the 0-75' lakeshore setback zone.
The Council further indicated that the pool and equipment maintenance
structure would have to be removed unless a lot line rearrangement
subdivision application was submitted. The Council voted 4-0 to
direct staff to draft a resolution of denial for the pool and spa
variances, and to 3ncorporate in such resolution a deadline for
submittal of a subdivision application 3f the equipment shed is to
remain. .
10. The Council additionally makes the following findings of fact
• concerning this variance denial:
A) The property as it existed prior to the pool and spa
construction already exceeded the hardcover limitations imposed
by the 1975 zoning code, i.e. 10.9� hardcover i.n the 0-75' zone
where no hardcover is normally allowed and 70.0� hardcover in the
75-250 ' zone where only. 25� hardcover is normally allowed.
B) Removal of 52 s.f. or 0.5� hardcover in the 75-250' zone does
not justify the originally proposed increase of 1,393 s.f. in the
0-75' zone, nor the 0-75' increase of 126 s.f. per the revised
proposal.
C) The. normal shoreline elevation for Lake Minnetonka has been
designated as 929.4' above mean sea level. The Orono zoning code
requires that al 1 setback distances from the shoreline are
measured from the 929.4' contour. The pool as constructed does
not meet the minimum 50' required setback for new structures as
required by the Minnesota Department of Natural Resources for
Lake Minnetonka, and does not meet the criteria for being less
than 250 s.f. in area as is currently proposed by the DNR 3n
their groposed Shoreland Standards. .
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Clt� o� ORONO
• � RESOLUTION OF THE CITY COUNCIL
� NO. 2620
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• D) The applicants' suggestion that past dredging of the lagoon
adjacent to the property is a hardship because it has made the
1ot area smaller, is not valid. Iri fact, the dry buildable 1ot
� area has not changed substantially since 1970, as is verified by
review of the 1970 air photo maps on exhibit at City Hall. The
app`licants' house was constructed in 1972, prior to the current
lakeshore zoning standards which were adopted in 1975. However,
the house itself essentially meets the current 75' lakeshore/10'
side/35' street setbacks. Without a doubt, this property is very
restricted by current zoning ordinances given the substandard
size of this lot in a 1 acre zone. However, these restrictions
are similar throughout the neighborhood and the community, and
there is nothing unique or unusual about this particular
situation.
E) The applicants' statement of unusual property conclitions
indicates that the surface of applicants' rear yard is not
visible from Lake Minnetonka, and that the existence of a pool or
• proposed decking surrounding the pool cannot be seen from Lake
Minnetonka. The City finds that the lagoon that the property
abuts is considered a part of Lake Minnetonka and that the
applicants' pre-existing rear yard was very visible from the
lagoon area under normal lake elevation conditions and that the
pool, proposed decking, and proposed 2-3' high retaining wall 15-
2 0' f rom the norma 1 shore 1 ine of Lake Minnetonka wi 11 be very
visible encroachments into the required lakeshore setback area.
F) The granting of the required variances would be contrary to
the provisions of Municipal Zoning Code Section 10 .08 ,
Subdivision 3 (A)� with which the applicants must first comply in
order that variances be granted. The Council finds that:
1) The essential character of the neighborhood wi11 be
altered if the proposed variances are granted and the new
hardcover and structures in the 0-75' zone are allowed to
remain.
2) The property in question can indeed be put to reasonable
use if used under conditions allowed by official controls.
The property contains a single family residence and the
lakeshore 0-75' zone has been and can continue to be used as
yard area in support of that residence.
• 3 ) The p 1 ight of the app 1 icants wou ld appear to have been
created totally by the applicants and not by circumstances
unique to their property nor out of the applicants' control.
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Cit� of ORONO
• � RESOLUTION OF THE CITY COUNCIL _
� NO. 2620
� • - • •
4) Granting of the proposed variances would appear to serve
as a convenience to the applicants and the applicants have
not demonstrated any reasonable hardship or practical
difficulty.
5) The conditions and zoning code limitations imposed and
� existing on this property generally apply to all other land
and structures in the zoning district in which this property
is located. �
6) The granting of this application is not necessary for
the preservation and enjoyment of a substantial property
right of � the applicants. Denial of a swimming pool and spa
in a location where such structures are not normally
allowed is not considered by Council to be denial of a
substantial property right.
7) The fact that the applicants have expended thousancls of
. dollars in the construction of the structures in questions
� does not and cannot constitute a reasonab'le hardship to the
property.
11. In review of the factua 1 f indings noted above, the Counci 1 f inds
that granting of the proposed after-the-fact variances to a11ow the
pool and spa structure to remain would be in complete conflict with
the environmental standards for lakeshore development within the City
and would be detrimental to the public health, safety and welfare.
The City also looks to the broader environmental principals and goals
set forth in its Community Management Plan and the intent of the
specific zoning district when dealing with matters of the public
health, safety and welfare. Issues involving public health, safety
and welfare are not only resolved by securing the obvious traffic and
drainage concerns, but the City also feels obligated to provide the
citizens with a designated and optimum 1eve1 of density, open space
and quality of life.
12. The applicants and/or their agents had every opportunity to
verify with the City and its staff whether or not the pool and spa
construction were allowed or whether such construction required a
permit, prior to that construction. The intent and full purpose of
the City's zoning code and Community Management Plan have been
violated in a manner so severe that the City Council must act to deny
this application. The City Council cannot approve the illegal actions
• of a resident or his agents when similar actions would have been
denied through the normal review process.
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t clt� o� oR,oNo ;
� RESOLUTION OF THE CITY COUNCIL
� NO. 2620 �
�
• - • • �
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� . FIIRTH$RMOR$ B$ IT RSSOLVED, that the City Counci 1 of the City of �
Orono hereby orders the removal of the pool and spa and restoration of the �
property within 45 days of the date of this resolution. The applicants and �
the agents of the City shall be guided by the following directives in the
. i
process of restoration:
l. Appropriate erosion control measures sha11 be maintained in place
during restoration until the disturbed earth is suitably revegetated.
2. The applicants shall work with the City staff and its consultants
to restore original drainage and original grades to the site.
3. The pool equipment maintenance structure shall be removed within 6
months of the date of this resolution unless a lot line rearrangement
subdivision to make the structure conforming to required setbacks is '
completed within that 6 month period. '
4. Hardcover on the property shall not exceed the pre-existing '
hardcover square footage in the 0-75' lakeshore zone of 868 square
• feet. In the 75-250' setback zone, hardcover may not exceed the pre-
existing 7 , 387 square feet ( 70 � ) , except that if a lot line
rearrangement subdivision is forthcoming, the additional 64 square
foot pool equipment maintenance structure may be allowed. The
property owners are advised that no additional hardcover will be
approved for this property, and any future proposals to increase or
change the nature of hardcover on the property will not be approved, ,
but might be approved only � in conjunction with removals of pre-
existing hardcover that result in no net increase in hardcover or a !
net decrease in hardcover on the property. •
Adopted by the City Counci 1 of the City of Orono on this 24th day
of April, 1989. '
ATT T: �
�
��'` '
or th�. M. allin, City Clerk James . Grabek, May '
i
_ ;
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Cit o� ORONO
�
� � RESOLUTION OF THE CITY COUNCI L
� • NO. 2620
� � � •
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me on this
24th day of April, 1989, by James R. Grabek & Dorothy M. Hallin, Mayor &
City Clerk of the City of Orono, a Minnesota municipal corporation and said
instrument was executed on behalf of the City.
N ary Publi I �zs,,,;,.,,��, �A R K, SCHEFFLER
, �>�,.
� :rhL,r�:�i� NO ARti FUBUC-MINNESO7A
- ' ' �C+;':'�-'" H.NN�PiN COUNTY
�,K;�;`;'<" My commisaion expires 6-8•93
� My Commission xpires
•
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