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HomeMy WebLinkAbout#1212-amending#851/variances-1980 . • � C�t of ORONO � RESOLUTION OF THE CITY COUNCIL • NO. T��. � - o • AMENDING RESOLUTION NO. 851 AND GRANTING JACK RHODE VARIANCES TO ALLOW CONSTRUCTION ON THE LOT KNOWI`i AS 1410 BOHNS POINT ROAD LEGALLY DESCRIBED AS iHAT PART OF GOV'T LOT 1 LYING E OF W 442. 93 FT. THEREOF A�JD N OF S 1058. 3 FT. THEREOF & S OF RLS 269 WHEREAS , Jack Rhode applied in 1976 for variances to allow for the construction of a single family residential home on his lot commonly known as 1410 Bohns Point Road, and has now reapplied for the same variances and for amer.a�<<en� to Resolution No . 851; and WHEREAS, Jason Becker and t�7illiam Lauer, neighbors who have property adjacent to that lot, have aopeared and expressed concerns - related to the possible construction sites on that lot; and WHEREAS , the applicant, the neighbors , City staff, the Planning Commission and City Council have raised at different times numerous facts and legal questions concerning the application for variances; and WHEREAS , the Planning Commission, City Council and City staff studied the first application at length, including the testimony and memoranda previously submitted by Mr. Rhode and his attorneys , James T. Swenson, Esq. , and Lorens Q. Brynestad, Esq. , and the material submitted by Mr. Jason Becker and his attorney, Jerry Rice, Esq. ; and WHEREAS , the Planning Commission, City Council and City Staff have studiad the 1980 reapplication at length, and have studied alI additional testimony, including that of tiZe Grec�g S•. Hannahs and Darrell K. Stewart and a11 additional written material submitted by Rhode, Beck2r and Lauer; and G�1HEP.EAS , the City Council has reviewed these applications and all testimony at City Council yieetings held August 8 , 1977, August 22 , 1977 , October 11 , 1977 , June 30 , 1980 , Ju1y 28, 1980 , August 25 , 1980 , September 15 , 1980 and the date of this Resolution; and 4v'HEREAS , on September 15 , 1980 , Greag Hannah appeared before the Council and entered into the record a copy of a 1974 survey showing the walkway easements across the subject loc (attached hereto as Exhibit B) and related details of his involvement with tne subject lot and the easemen�s located thereon, including statemen�s that he and his attorney. ha1 calleu� the C��y and the Lt�ICD re�=arding `�?� validi��� o� changing the easements in 1974 , that the City and L"�iCD had stated no objectior.s to �-he easements , that tne City and LiiCD 'r:ad not asked -or any endorsement, Lormal review, or approval process for the easements , and reqarczing his lack of in�.�olvement with the Council ' s drafting of the original P.�solution '�10. 851 in 1977 ; and PAGE�OF �� clt� o� oR,oNo RESOLUTION OF THE CITY COUNCIL • NO. /o2 � c� s - • o WHEREAS , the City Council is charged with the responsibility of enforcing the Orono Zoning Code in order to promote the intents and purposes thereof including the preservation of the health, safety, and welfare of the citizens of Orono; and NOW, THEREFORE, BE IT RESOLVED, that based upon all the ` _ testimony and memoranda submitted by the applicants, his agents, the neighbors adjacent thereto and their agents , and by City staff , the City Council grants the variances as noted hereinafter for the following reasons : f I . FI,'�.1DINGS C1F FACT 1 . That Jack Rhode ' s lot, commonly known as 1410 Bohns Point Road, is a lot of record existing upon January l , 1975 , under single separate ownership in an LR-1B use district. 2 . A cabin existed on this lot until 1974 or I975 and that all remains of the cabin were not removed until after Rhode acquired the lot in 1976 . The cabin had been located in the northeast corner of the lot, within 30 feet of the shoreline . 3 . The lot does not meet the minimum requirements of the Zoning Code as to area and width for a single family dwelling in an LR-1B use district. ' a) The lot is 29 , 660 square feet in area, based upon the survey of Gary L. Gabriel, dated April 15 , 198Q . b) The lot is 107 feet in width at the rear and 130 feet in width along the shoreline . c) The area and width are not within 800 of the minimum requirements and therefore Council approval of a variance is needed before a single family dwelling can be constructed thereon. 4 . The lot is isolated from other undeveloped 1and. It is surrounded on a11 sides by lakeshore or by lots containing existing single family dwellings. a) The lot is thereLore unique and the general conditions of the lot are peculiar to such property. b) There is no adjacent vacant land which could be added to increase the 1ot width or area conformits� o� this 1ot . PAGE a OF /� . � • City of ORONO RESOLUTION OF THE CITY COUNCIL • NO. �o�G�o2 e - • • 5. The lot is presently served by the public sanitary sewer system, and has been assessed for such service, including assessment of one unit charge. 6 . The proposed location of the single family dwelling meets all the stipulated setback requirements of the Zoning Code including: � a) 75 ft. minimum setback from the lakeshore b) 35 ft. minimum front yard c) 30 ft. minimum rear yard d) 10 ft. minimum side yards 7r An existing carriage house, located 24 feet from the � rear lot line, is proposed to be removed prior to construction of the new house. 8 . There are presently in the chain of title easemen�s benefiting Darrell K. Stewart and the Gregg S . Hannahs which provide for a walkway over the lot to the lake. 9 . The easements run over one of the side yards as indicated on Exhibit B. a) The easements exclude any driving privileges. b) The side yard affected by the easements will remain covered by grass or foilage and a small corner of driveway as shown on Exhibit A. c) There will be no building or other obstruction in the easement area. l. The 10 ft. width and location of the easements is identical to the 10 ft. wide minimum side yard setback area. . 2 . The access to the proposed dwelling in case of fire will remain the same as if no easement existed. � 3 . The light and air within the side yard will remain the same as if no easement existed. 4 . The openness or "open space" of the side yard will remain the same as if no easement existed. P�;E .� OF �.3 � � � of OR N Ct O O � RESOLUTION OF THE CITY COUNCIL • NO. _ /vZ �n� • - • • 10. The proposed location of the single family dwelling including all decks, patios or other appurtenances, is set back more than 75 feet from the shoreline as required by the City ordinance . 11. Questions were raised regarding the intent, interpre- tation and �pplication of Section 34 . 201 which states that "no building may be located closer to the shoreline than the average distance from the �horeline of existing residence buildings on adjacent and nearby lots" . a) The Becker house is located 115 feet from the shoreline. b) The Lauer house is located 160 feet from the shoreline. � c) Other homes within 500 feet of the Rhode 1ot vary from no setback at all to 336 feet from the shoreline. d) A mathematical averaging of setback distances bears no practical relationship to other existing house locations or to the purpose of requiring a lakeshore setback line consistent with that of adjacent properties. e) The intent of the " average setback requirement" was to protect the sight lines of neighbors as they view the lake from their homes . f) Whenever a question is raised as to the existing view, the practice of the City is to carefully review all the facts such as topography, vegetation, and existing sight lines from the windows and/or lakeside yards of the affected neighbors. � g) •The proposed location of the Rhode house is set behind a line designated as DD on Exhibit A drawn as an extension of the front, lakeside of the Becker house. h) Because of the angle of the Becker house compared to the angle of the shoreline , Becker has no view of the lake behind line D-D, and has restricted views of the lake across the Rhode lot ahead of line D-D because of existing vegetation on the Rhode lot. i) The prior existing cabin on the Rhode lot was directly in the line of vision between the Becker house and the lake but also was somewhat obscurred from the Becker house because of the same vegetation mentioned above. . PAGE�OF I.3 � � cit� o� oR,oNo RESOLUTION OF THE CITY COUNCIL ° NO. _���� e - • • j ) The sight line or view of the lake from the lakeside facade of the Becker house will not be obstructed by the p roposed location as shown on Exhibit A. k) The only neighbors whose sight line or view of the lake will be obstructed by the proposed location, the Lauers , have no objections to the proposed location of the dwelling and have provided a written statement in support of the proposed location. 1) The "average setback requirement" was not designed nor has it been interpreted in the past to prevent the development as proposed on ,this sort of unique angulated shoreline adjacent to Jack Rhode ' s lot. m) The City Council has granted variances in such cases � in the past, based upon the same standards and interpretations as applied in this case. 12 . Mr. Lauer wants the building to be as far forward as possible. 13 . Mr. Becker wants the building as far to the rear as possible . a) Building the Rhode house in the carriage house location suggested by Becker would. cause the Rhode house to be located farther from the lakeshore than is the Becker house. b} The Rhode view of the lake might be obstructed by the Becker house if he were required to build behind line D-D, and would be obstructed if he were required to build in the carriage house location. ' 14 . The plan presented for approval at the July 21, 1980 meeting contains 5 , 520 s. f. of building, driveway, sidewalk and deck "hardcover" within the lot, which hardcover is 636 s . f. more than the maximum 250 (4 , 884 s. f . j permitted in an area located between 75 ft. and 250 ft. from the shoreline. a) This is a variance of 3% from the ordinance requirements of Section 34 . 202 . PAGE S OF �-3 . . . . i , Cit� of ORONO RESOLUTION OF THE CITY COUNCIL • NO. ��7t� • _ • • b) This is 2 ,780 s. f. less hardcover than proposed � in the plan received on June 20, 1980. c) This is 980 s. f. less hardcover than the 6, 500 s. f. proposed in the plan approved by Resolution No. 851. d) A finding of Resolution No. 851 was that no hardcover variance was required because in 1977 the gravel driveway proposed was not at that time considered to be hardcover, in which case the total hardcover would have been less than the maximum 25� permitted by 34. 202 . " e) If the gravel driveway had been considered to be hardcover in 1977 , the plan as approved by Resolution No. 851 would have required an 8o hardcover variance. f) Since 1977, the policy and interpretation of the Planning Commission and Council has changed because of reviews of other applications and now gravel surfaced driveways are considered to be "hardcover" � for purposes of Section 34 . 202 . g) Considering the driveway to be hardcover in both instances means that the 1980 plan contains less total hardcover than the previously approved 1977 plan. 15 . The carriage house, presently in existence on the lot, was in existence at the time of the passage of applicable ordinances as well as at the time when Mr. Rhode ' s 1ot was created and given its description as presently recorded. 16 . Rhode ' s original 1977 plan proposed conversion of the existing carriage house into a guest house. This plan was later amended to use of the carriage house as an accessory building for storage only. a) Resolution No. 851 made a finding as follows : "Mr. Rhode ' s proposed use of the carriage house for storage of his passenger cars and personal belongings does not qualify the house as a garage and therefore an accessory structure. The carriage house is in excess of the size limitatians for an . accessory use. Such a continued use of the carriage house would be adverse to the in�ent and purposes of the Zoning Code , would res�zlt in ciiminution in value to the surrounding property. Plans for the house show construction of adequate garage and storage space attached to the home. There would be too much hardcover if the carriage house remained and the proposed house was constructed. " ' PAGE�_OF �� � � � � Cit� o ORONO RESOLUTION OF THE CITY COUNCIL • _ NO. _!� /�_ • - • • b) Rhode ' s current application calls for complete removal of the carriage house consistent with the conditions of Resolution No. 851. 17 . There is presently in existence one seasonal dock ' used jointly by the two easement holders referred to in paragraphs 8 & 9 above. � � 18 . Prior to purchasing the lot, Mr. Rhode discussed the "buildability" of the same with Hank Muhich, then �oning Administrator for the City. 19. Mr. Rhode was told that this lot had in the past been determined to be "buildable" by prior Council action, namely a lot area and lot width variance approved for Fred Rogers in October, 1974 , based , upon a September, 1974 survey attached as Exhibit B. 20. The fact that Mr. Rhode ' s "lot of record" exists isolated from other undeveloped land makes it unique and different from the conditions which apply to other land in the area. a) The substandard width and area are peculiar to the lot and do not apply generally to other land in the area. b) The lot cannot be combined with undeveloped land. 21. It is necessary that P�Ir. Rhode be granted a variance as to lot size and width to preserve his enjoyment of a substantial property right, to wit: the right to build a single family dwelling on an LR-1B lot for which he paid $45, 000. 22 . Without the variances as to lot size and width, Mr. Rhode would suffer the particular hardship of not being able to use his residential lot for residential purposes . 23 . Residential use of the Rhode lot is a "permitted" use in the LR-1B district, even though the lot is substandard in area and width according to current zoning standards . . PAGE � OF �--3 ' Cit� o� ORONO RESOLUTION OF THE CITY COUNCIL • No. /� /� s • • • —,- 24 . Granting the variances as to lot size and width will not be contrary to the intent of the Zoning Code or to the intent of the Comprehensive Plan. a) The lot is sewered; consequently, there will be no threat to public health occurring because of excessive crowding of private sewage disposal systems . b) One more dwelling in the already developed area will not materially increase the density of the neighborhood, as long as the present carriage house is removed first, prior to construction of the new house. This is particularly true because the lot previously contained the cabin dwelling. c) Adequate open spaces for access in case of fire will insure that there will be no increased danger i to the safety of the neighborhood. All required setbacks are met by the proposed plan. d) No impairment of morals will result from the proposed construction of the single family dwelling. e) The existence of one more dwelling in the area will not materially increase the traffic in the area. 25. Requiring Mr. Rhode to build in a location further back than proposed in 1977 would amount to a practical difficulty as it would have a deleterious effect on the property values of all concerned and because soil conditions may adversely affect the strength and durability of the dwelling. 26 . The same conditions outlined above apply to granting a variance as to the "average setback" rule, to wit: it will not be contrary to the intent of the Zoning Code or Comprehensive Plan and there will be no adverse effects on neighboring properties . 27 . The Planning Commission , after hearing testimony, recommended to the Council that Jack Rhode be granted a variance from the "average setback" requirement, which would allow him to build where proposed. 28 . Any variance for the lot should not be granted unless the carriage house is first removed. PAGE � OF I—� � � � • Clt� of ORONO RESOLUTION OF THE CITY COUNCIL • NO. ��� s - s • 29 . The Ordinances , Comprehensive Plans and practical situation which existed as of November 14 , 1977 , when Resolution No. 851 was passed, has not changed with _ respect to the reasons underlying the decision to grant a Iot width and lot area variance or to use line D to D, as depicted on Exhibit A, as the lakeshore setback line for the Rhode property. - 30 . That the part of line D to D to C represented by "D to C" on Exhibit A to Resolution No. 851 does not provide any greate r protection for the Becker' s sight line of the lake than "D to D" extended all the way across the Rho de property. 31 . Line D to D, extended a11 the way across the Rhode property, protects the Becker ' s sight line or view of the lake . (See Finding No . 11 herein. ) The above findings of ract are in part based upon and dependent upon the iollowing fin�ings of fact: A. That the single family residential home is to be built • in a location noted on Exhibit A attached hereto and that prior to any construction that a survey be conducted to ensure that tne house is located as noted on Exhibit A and that the City Zoning and Planning �dministrator is ' informed of the commencement of construction at least 24 hours orior thereto. B. That there be only one dock allowed on the Rhode lot which dock shall be no greater than 100 feet in length and which dock is intended to serve only Rhode and his successors in title and the current e�sement holders Hannah and Stewart and their respec�ive successors in title , and which dock must be constructed in accordance with a11 applicablA City and LP-ZCD ordinances. PAGE / OF �-3 City of ORONO RESOLUTION OF THE CITY COUNCIL • NO. �l � ( e�- • • • • C. That on the Rhode lot either attached to the dock, moored in front of the lot or located on the lot, there may not be at any time more than three watercraft, as defined by Regulation 3. 01, Subd. 13 of LMCD Regulations, either docked, moored or stored. D. That a short form of this Resolution may hereafter be filed in the chain of title for the lot noting that the City Council hereby finds as follows : l. That a dock is an accessory use to residential property and must be attached directly to the riparian residential lot it is designed to serve. 2. That any joint use of a dock on this property presently and/or in the future may be only pursuant to an annual joint use dock license as set forth in Chapter 74 of the Orono Municipal Code. E. That Mr. Rhode must execute, prior to the effective date of this variance, and in a form approved by the City Attorney, a document to be filed in his chain of title, which restricts the use of the property to one dock of not more than 100 feet in length, with ,not more than three watercraft moored at the dock in front of the lot, or on the property at any time, and that all installation or use of said dock shall only be pursuant to the terms and conditions of an annual joint use dock license and other applicable City ordinances regulating the location, construction and use of docks and mooring a�eas. Rhode and the easement holders shall apply for said license annually on forms provided by the City and in accordance with all application requirements and license fees required of similar joint use dock licenses. � PAGE �d OF �� � . • c�t� o� oR,oNo RESOLUTION OF THE CITY COUNCIL � • No. �� sa � - . . F. The three watercraft allowed pursuant to this Resolution may be owned only by Rhode , or his successors in title to the subject property legally described in the title of this resolution, or the two `present easement holders, Gregg Hannah and Darrell Stewart, or their successors in title to property legally described as Tract I , RLS 269 " and combined Tracts G & H, RI.,S 269 respectively. II . GRANTING THE VARIANCES Based upon the above findings of fact and contingent upon specifically those items as noted in Paragraphs A through H, the City Council of the City of Orono grants the following variances : 1. A variance to Section 34 . 452 as to lot size and width with respect to the lot commonly known as 1410 Bohns Point Road. 2. A variance to Section 34 . 202 as to maximum permitted hardcover to the extent ot 3o such that no more than 5 , 520 s. f. of hardcover consisting of house, driveway, sidewalk, deck, patio or any other impermeable surface may be erected or maintained on this lot, and that a11 such hardcover shall be located beyond 75 ft. from the shoreline of Lake Minnetonka. 3 . An interpretation that line D-D as designated on Exhibit A constitutes the average lakeshore setback line of Section 34 . 201 which line protects the lakeshore vieT.as from the Becker house . (A) That the Rhode house and al1 appurtenances thereto be constructed entirely behind line D-D, being no closer to the lakeshore than line D-D, except as follows : l . An open, unscreened, unroored, unenclosed balcony as snown on Exhibit A, not to exceed 30 ft. long , 5 ft. �aide or 150 sq. ft. in area, mav encr�ach ��e�i ::" 1;r: D-D a dis�ance not t0 e:<c��d � _�. i�^��. 1�'n� D-D. PAGE �� OF �3 City o� ORONO RESOLUTION OF THE CITY COUNCIL / NO. 1��� • � • • 2 . An open, unscreened, unroofed, unenclosed deck or patio not to exceed 30 inches in height above the ground at any point may be constructed according to City ordinances between the house and the 75 ft. setback line from Lake Minnetonka, provided the total 1ot hardcover does not exceed the maximum 5, 520 sq. ft. as approved in No. 2 above. R 4 . That if the interpretation of average lakeshore setback line as made in No. 3 above should be found to require a variance from Section 34 . 202, that such a variance shall be and hereby is qranted finding no opposition of the Lauers , a hardship of unusual lot configuration compared to the location of the shoreline and to the Becker and Lauer houses, and that such a location behind line D-D ° does in fact adequately protect the sight lines and property values of the Becker p�operty. 5. The above variances are contingent upon and sha11 not be effective until the existing carriage house is removed at Mr. Rhode ' s expense f rom the property and execution and filing of the document relating to the use of docks on the Rhode lot as set forth in the findings of facts. This document must be recorded before the City staff is authorized to issue any building permit for this lot. 6 . The City Council hereby finds that the variances shall be denied and will be considered to be invalid unless the above items are completed to the satisfaction of the City prior to the granting of a building permit, and variances would have been denied except for Mr. Rhode ' s agreeing in writing to the provisions of this Resolution. ` 7 . This variance approval shall terminate and expire one year from the date of City Council adoption of this Resolution, consistent with the provisions of Section 32 . 371, unless all the conditions of this approval have been met and a building permit has been applied for in compliance with this approval . . PAGE �� OF �3 � c�t� o� oR,oNo RESOWTION OF THE CITY COUNCIL • NO. /�I�oZ • - o • This Resolution was adopted by the City Council of the City of Orono b a vote of � ayes and � nays on the /��.day of Y��/--� , 1980. � _..� .�l �.� � ��. D� �� �dX�X�fI��X3��X�XX���' �..J ATTEST: Mary C. Butler, Acting Mayor a ter R Benson, City A inistrator I have read �he terms of the above Resolution and agree to be bound by them. (Jack Rhode and any other party with property interest) 'GC i'�; Jac Rhode STATE OF MINNESOTA ) } ss COINTY OF HENNEPIN ) On this �`} day of � , 198�, before m , a nota p blic within and for said county, personally appeared `, � to me known to be th persons described in, and who executed the foregoing instrument, and acknowledged that they executed the same as their free act and deed. No ary ublic MARY S.WOYTCKE j! NC'f'ARY PUBI�C-MlNNESOTA tfENNEPIN COUNTY My Comm�saion Expires Nov,18.1987 • � PAGE �-3 OF �3 .. , '. f ��' ` �� " . . '.. � ��� f �i , ` , , � � � � �, j � . : t . . T' -� � : �l „=, { �� ,- I. �a� �7J �T�-? �G � '� a :V � : y � ;� . � '. , . , . ' � � rT� .�,, �' L •7n 'r��'� i� ` . ' � ? d 7 �.:.. !� \ f .., : . +, '3� � t, r.:�asia " ��5� , �I .-/' ���.� .i . ; ..��E��J � �I � � � �\ . .I. �l � n' , . � �3c�s: _ i..:i •�. �' : �� �nS�� '�'j- y. , : '7: j y S� :j ��� � 4� � . . ��� � „ :i o����� Y t � � �..j.. ' � =, ':;' Ja�i':�y . . � � i' - ;f ;�s �y'9� - � i I� !Y. 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