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. " '
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� � �
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—� �
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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 �� �
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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
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